Wolfe v. Commonwealth

Present: Hassell, C.J., Lacy, Koontz, Kinser, and Lemons,
JJ., and Carrico * and Stephenson, S.JJ.

JUSTIN MICHAEL WOLFE

v. Record No. 021872

COMMONWEALTH OF VIRGINIA
OPINION BY CHIEF JUSTICE LEROY R. HASSELL, SR.
February 28, 2003
JUSTIN MICHAEL WOLFE

v. Record No. 022194

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Herman A. Whisenant, Jr., Judge

In these appeals, we review the capital murder

conviction, sentence of death, and related convictions imposed

upon Justin Michael Wolfe.

I.

The defendant was tried before a jury on indictments for

the following offenses: the capital murder of Daniel Robert

Petrole, Jr., in violation of Code § 18.2-31(2), the willful,

deliberate, and premeditated killing of any person by another

for hire; use of a firearm in the commission of a felony in

violation of Code § 18.2-53.1; and conspiracy to distribute

marijuana in violation of Code §§ 18.2-248.1 and -256. The

jury found the defendant guilty of these crimes and fixed his

*
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.
punishment at 30 years imprisonment for the drug charges and

three years imprisonment for the use of a firearm.

In the penalty phase of the capital murder trial, the

jury fixed the defendant's punishment at death, finding that

he represented a continuing serious threat to society and that

his offense was outrageously or wantonly vile, horrible, or

inhuman in that it involved an aggravated battery to the

victim. After considering a report prepared by a probation

officer pursuant to Code § 19.2-299, the circuit court

sentenced the defendant in accordance with the jury verdicts.

We consolidated the automatic review of the defendant's

death sentence with the appeal of his capital murder

conviction, and the defendant's appeal of his non-capital

convictions was certified from the Court of Appeals. We have

consolidated the defendant's appeal of his non-capital

convictions with his capital murder appeal, and we have given

these appeals priority on our docket.

II.

In accordance with well-established principles of

appellate review, we will review the evidence in the light

most favorable to the Commonwealth, the prevailing party

below. Zirkle v. Commonwealth, 262 Va. 320, 323, 551 S.E.2d

601, 602 (2001).

2
 The defendant was a major drug dealer in Northern

Virginia. He regularly sold high-grade marijuana, referred to

as "kind bud" or "chronic," for a price between $4,200 and

$5,000 per pound. His marijuana supplier was Daniel Robert

Petrole, Jr., who began to supply marijuana to defendant in

November 2000, seven months before he was murdered.

Petrole, a major drug supplier of high-grade marijuana in

Northern Virginia, regularly purchased about 100 pounds of

marijuana per month at a price of $360,000. Petrole usually

sold the defendant between eight and 18 pounds of marijuana

every two weeks. The defendant described Petrole as his

"chronic man."

In furtherance of their drug activities, the defendant

and Petrole utilized an informal system of credit described as

"fronting." When Petrole sold the defendant marijuana, the

defendant gave Petrole a quantity of cash as a down payment,

and the defendant paid the balance when he received proceeds

from the sales of marijuana to others. Petrole maintained a

record of sales of marijuana to dealers such as the defendant,

and payments made by those dealers, on documents commonly

known as "owe sheets." The "owe sheets" contained the amounts

of the debts that drug dealers owed to Petrole. On occasions,

the defendant owed Petrole as much as $100,000. An "owe

sheet" that was discovered on Petrole's body the night he was

3
murdered indicated that the defendant owed Petrole more than

$60,000.

The defendant and his friends, T. Jason Coleman and Chad

E. Hough, had discussions about robbing drug dealers. On one

occasion, the defendant, Hough and Coleman planned to rob a

drug dealer at a location in Washington, D.C., but after they

conducted surveillance of the planned location of the robbery,

they concluded that the extensive level of security at the

location rendered their plan too risky.

Janelle E. Johnson, Coleman's wife, testified that in the

winter of 2000, the defendant and Coleman discussed committing

a burglary or stealing money from another drug dealer who sold

marijuana in Northern Virginia. In furtherance of this plan,

the defendant and Coleman purchased ski masks and duct tape.

Hough testified that he and the defendant "talked about

performing robberies most of the time. Almost every time we

got together, it was usually some type of robbery connected

with drugs." In January or February 2001, the defendant asked

Hough if he "wanted to maybe be in on making some money, and

[the defendant] mentioned . . . that [Hough] could . . . make

some money by taking [part] in a robbery . . . ." The

defendant wanted Hough to rob a drug dealer when the defendant

was "making a buy." The defendant wanted Hough to follow the

drug dealer and rob him. The defendant did not mention the

4
drug dealer's name, but Hough concluded that the defendant

wanted Hough to rob the defendant's drug supplier.

Owen M. Barber, IV, and the defendant had been "good

friends" for six or seven years. Barber, who was also a drug

dealer, purchased low-quality marijuana, referred to as

"shwag." Occasionally, he sold pounds of marijuana to the

defendant. The defendant asked Barber if he "wanted to get

[the defendant's] chronic man." The defendant stated that

Barber must not merely rob his "chronic man," but that Barber

must shoot him because Petrole knew too many people. Barber

testified as follows:

"Q: [D]id there come a point in time when you
had a discussion concerning [the defendant's]
supplier of chronic or kind bud [marijuana]?

"A: Yeah. It was one day when we were at [a
restaurant] just drinking and [the defendant] asked
me if I wanted to get his chronic man.

"Q: Get the chronic man?

"A: Yeah. And I was like, yeah, you know,
we'll just rob him or whatever. And I was like, all
right, you know and then he said, no, no you can't
rob him. He was like, we got to shoot him because
he knows too many people.

"Q: He knows too many people?

"A: Yeah.

"Q: At that point in time, did he tell you who
his chronic man was?

"A: Yeah.

5
 "Q: Who was it?

"A: He said Danny Petrole.

"Q: Had you known Danny Petrole prior to that
time?

"A: No. I knew the name. I didn't know him
like personally."

This conversation occurred in late February or early March,

2001.

The "next couple of days" after the defendant and Barber

had the conversation about robbing and killing Petrole, the

defendant and Barber planned how they "could do it and how

[they would] have to find him or . . . follow him or catch him

alone." On one occasion, the defendant and Barber went to

Petrole's apartment in Washington, D.C. to determine if it was

feasible to kill him at that location. The owner of the

apartment building employed a doorman, and the defendant and

Barber concluded that they should not kill Petrole at that

location.

Subsequently, the defendant and Barber made another

attempt to locate and kill Petrole. The defendant made a

telephone call to Petrole one night, and Petrole informed the

defendant that Petrole intended to attend a class at the

Northern Virginia Community College campus in Arlington or

Annandale, Virginia. Barber was not sure of the specific

campus where Petrole attended community college. The

6
defendant and Barber got in Barber's car and traveled to the

campus. They "drove around the parking lot" looking for

Petrole's car, but they were unable to find it.

On another occasion, the defendant spoke with Petrole,

who informed the defendant that he (Petrole) planned to eat

dinner at a restaurant in Washington, D.C. The defendant and

Barber traveled to the restaurant in search of Petrole.

Barber testified that they "went and looked for him at the

restaurant . . . and we didn't see him. Then we went back and

we waited in the parking lot . . . behind his building."

Barber and the defendant did not find Petrole that evening.

Barber and the defendant concluded that they were going to

kill Petrole if he returned to his apartment that night. If

he did not return to his apartment, they were going to wait

until they had another opportunity to kill him.

During the next several days, Barber and the defendant

continued to discuss their plan to kill Petrole. On March 15,

2001, the defendant placed a telephone call to Barber, who was

with a friend, Robert H. Martin, Jr. The defendant directed

Barber to meet the defendant at a restaurant in Fairfax

County. Barber and Martin went to the restaurant, and Barber

and the defendant spoke alone in a parking lot. The defendant

informed Barber that the defendant had spoken to Petrole, and

the defendant planned to meet him that night. Petrole had

7
agreed to bring a large quantity of high-grade marijuana to an

apartment that the defendant shared with his girlfriend,

Regina A. Zuener.

The defendant and Barber agreed that Barber would follow

Petrole once he left Zuener's apartment. Barber returned to

the car where Martin had waited, and they went to Barber's

apartment. About an hour later, the defendant, using his

cellular telephone, called Barber to inform him that Petrole

was "on his way" to Zuener's apartment. Barber called the

defendant and inquired whether Petrole had arrived, and the

defendant informed Barber that Petrole had not.

Barber asked Martin if he wanted to accompany Barber "on

this thing [Barber] had to do," but Martin refused. Barber

testified as follows: "I think I told [Martin], you know,

I've got to go do this thing and he was like – he said he was

[willing] to beat him up or to rob him or whatever. And I was

like, no, you know, it's more than that. He's like, no, no,

I'm not going to do it. I'll let you have my car, but I'm not

going to do it." Barber wanted to use Martin's car to travel

to Zuener's house so that he could rob and kill Petrole

because Barber's car was too distinctive. Barber's car was

equipped with racing tires and a large noisy engine.

Barber, armed with a Smith & Wesson nine millimeter

pistol that he had purchased from Coleman, got into Martin's

8
car and drove to a cul-de-sac at the end of a street near

Zuener's apartment. Petrole arrived at Zuener's apartment in

Centreville. The defendant, Jennifer E. Pascquierllo,

Nicholas Soto, and Coleman were present. Petrole knocked on

the door, and Zuener let him in. Petrole was carrying a large

black duffel bag filled with high-grade marijuana. Petrole

and the defendant went upstairs to a bedroom. Later, Zuener

went to the bedroom where she observed a large drug

transaction occur between Petrole and the defendant. She saw

between 10 and 15 pounds of high-grade marijuana on her bed.

Petrole had a large amount of money. The marijuana was

packaged in separate bags, weighing approximately one pound

each. When the drug transaction was completed, the defendant

and his friends went to a nightclub, and Petrole left the

apartment and got in his car.

As Petrole began to drive his car, unbeknownst to him,

Barber followed Petrole as he drove through Fairfax County.

Petrole parked his car in front of a house in Fairfax County

and went inside. Barber, using his cellular telephone, called

the defendant and informed him that Petrole "went into some

house in Fairfax City." Later, Petrole got back in his car

and drove off as Barber continued to follow him. While

following him, Barber temporarily lost sight of Petrole's car,

but managed to locate it and continued to follow him. Petrole

9
drove his car to a neighborhood where he had recently

purchased a townhouse and parked his car. Barber stopped the

car he was driving and "jumped out." Barber stated, "I shot

him across through the passenger side window and the[n] jumped

back in the car and turned around and then left out with . . .

my lights off." Barber shot Petrole 10 times, and he was five

or six feet from the victim when he discharged the pistol.

Barber damaged Martin's car during the murder. As Barber sped

away, he tossed the pistol and gloves he used out of the car

window.

Issa Hassan, Walter P. Gunning, Jr., and Jeanette

Lorentzen were in Petrole's townhouse when they heard noises

and ran to the window. They observed a red Ford Escort as it

"sped off real fast and turned its lights as it turned around

the corner." Issa Hassan went outside, and he saw Petrole

seated in the driver's seat of the car. Hassan opened the

door and shook Petrole. Petrole's neck was "flimsy," and he

did not have a pulse. The car's windows were shattered, and

there was "glass everywhere in the car."

Police officers responded to the scene of the murder and

found $965 on the victim's body. The police officers found

$17,460 in United States currency in the victim's duffel bag

located in the trunk of his vehicle. The police officers

searched the victim's house and found approximately $120,000

10
cash, 46 pounds of high-grade marijuana, which was "vacuum

packed" in plastic bags, 4,000 tablets of metholanedioxine, an

amphetamine, also known as Ecstasy, and an "owe sheet."

Gunning, Petrole's roommate, testified that Petrole was

angry with the defendant because he owed Petrole over $66,000

and that the defendant had taken "a little longer than what he

expected to pay him back."

Dr. Frances P. Field, an assistant medical examiner,

conducted an autopsy upon Petrole's body. She gave the

following testimony. The victim had nine gunshot wounds in

his body. One bullet penetrated the victim's spinal column

and severed the spinal cord. Bullets damaged the victim's

ribs, abdomen, liver, kidney, large intestines, small

intestines, aorta, lung, and chest. Dr. Field opined that the

defendant's death was caused by multiple gunshot wounds, and

that any of the wounds which injured the internal organs such

as the lung, liver, kidney, or spinal canal could have proven

fatal because of bleeding from those sites.

After he had committed the murder, Barber returned to his

apartment and told Martin that he had killed Petrole. Barber

used his cellular telephone to talk with the defendant, who

was at the nightclub.

Barber changed clothes, and he and Martin went to the

nightclub to meet the defendant. Once Barber and Martin

11
entered the nightclub, Barber and the defendant spoke outside

of Martin's presence. Barber told the defendant that he

(Barber) "did it and it was done." The defendant responded,

"all right." Then the defendant gave Barber "like a pound and

a half hug." The defendant "ordered a round of drinks" for

himself, Barber, and Martin. The defendant commented that "we

got to have a made cake now – or like a rack of cake," a slang

expression that means "we made a lot of money." The purpose

of the toast was to celebrate their "rack of money."

In return for his act of killing Petrole, the defendant

told Barber that he did not have to pay for four pounds of

marijuana that the defendant had previously sold him.

Additionally, the defendant gave Barber a half pound of

"chronic" marijuana, forgave Barber's $3,000 debt for past

drug transactions, and promised to pay Barber $10,000 in cash.

Martin testified at trial, and his testimony corroborated

Barber's version of the events on the night of the murder.

Martin and Barber had dinner with Martin's parents on the

evening of March 15 before the murder. After dinner, Barber

and Martin went to Barber's apartment that he shared with

Coleman. They drank beer and smoked marijuana. Martin

observed Barber when he had the conversation with the

defendant in the parking lot of the restaurant. After the

conversation, when the men were at Barber's apartment, Barber

12
told Martin that Barber intended to "put one in each kneecap."

Barber told Martin that Barber intended to leave the apartment

with his pistol after he received a telephone call from the

defendant. After Barber received the telephone call, he left

the apartment, followed Petrole, and killed him.

Martin testified that after the murder, he and Barber

went to the nightclub and when they met the defendant, Barber

told Martin "to go away" so that the defendant and Barber

could have a private conversation. After the defendant and

Barber had concluded their private conversation, Martin

approached them. The defendant and Barber gave Martin an

alcoholic beverage, and the defendant "told [Martin] right

there you can't say nothing about this and I'm about to make a

lot of money." Immediately, the defendant, Barber, and Martin

made a toast.

After the murder, Martin approached the defendant and

asked for a discount for the purchase of marijuana. Martin

told the defendant, "I know what happened." The defendant

gave Martin a discount on the purchase and forgave him of a

past drug debt.

The day after the murder, the defendant and several

friends, including Barber, went shopping to purchase clothes

to wear to a birthday party in honor of the defendant on March

17, 2001. The defendant and his friends purchased several

13
bottles of expensive champagne for his birthday party that

cost in excess of $200 per bottle.

After his birthday party, the defendant decided that

things were getting "too hot" with the police, and he fled to

Florida. Police officers searched Barber's apartment and

interrogated him, but he denied any involvement in Petrole's

murder. Barber left Virginia, went to Florida, and then fled

to San Diego, California. Barber contacted his former

girlfriend, Jennifer Pascquierllo, and asked her to obtain

money from the defendant and bring the money to Barber. The

defendant gave her $1,000. She drove her car to meet Barber

in San Diego, where he was eventually arrested by United

States Marshals.

Three days after the murder, Barber gave Martin $540 and

directed him to repair the damage to his car and to replace

the tires. Barber was afraid that the car's tires may have

created identifiable skid marks at the scene of the murder.

Barber instructed Martin to take the car to Virginia Beach,

Virginia, and get it repaired there. Martin told Barber that

Martin was not "going to help him out." Martin tried to

return the money, but Barber would not accept it. That night,

Martin contacted police officers and reported the crime.

Pascquierllo testified that Barber relayed to her the

facts relating to the murder of Petrole. Her testimony

14
concerning these facts was consistent with Barber's trial

testimony. She also testified: "I asked [Barber] what the

sum of money was, what kind of sum of money it could have

been, and he told me that it was $10,000 and he got some weed,

but that he had to flush it, and then he told me that it was

also the $3,000 debt that involved me." Pascquierllo

testified that Barber tried unsuccessfully to obtain from the

defendant the $10,000 that he had promised to pay Barber to

kill Petrole.

The defendant made numerous admissions during his

testimony. The defendant admitted that he had been a drug

dealer for four or five years before Petrole's death. He

admitted that he was guilty of the charge of conspiracy to

distribute more than five pounds of marijuana. He had

distributed more than 100 pounds of marijuana throughout

Northern Virginia since he began selling drugs. He admitted

that he had spoken to his friends about robbing a drug dealer.

He admitted that he had discussed with Coleman the possibility

of committing robberies. The defendant admitted that he was

the last person Barber called before Barber killed Petrole and

the first person Barber called after Petrole's death. He

admitted that he sold marijuana to Martin after the murder and

that Martin stated, "I know what happened." After Martin made

15
this statement, the defendant admitted he decreased the price

of the marijuana he sold to Martin.

The defendant testified that one of his highest

priorities was the "high life" that money could obtain for

him. The defendant regularly spent between $2,000 and $3,000

on weekends for entertainment purposes. The defendant

admitted that he owed Petrole more than $80,000 at the time of

Petrole's death.

The defendant claimed that Barber testified untruthfully

about him because the defendant purportedly had had sexual

relations with Barber's former girlfriend, Pascquierllo.

However, the defendant admits that when asked by the police

detectives, "[d]id Owen have anything against you?," the

defendant responded, "no." Additionally, Pascquierllo denied

that she ever had a sexual relationship with the defendant.

III.

During the penalty phase of the capital murder

proceedings, the Commonwealth adduced the following evidence.

Daniel Petrole, Sr., and Jane Alison Petrole, the victim's

parents, discussed the impact of his death upon their family.

The Commonwealth also presented the defendant's juvenile

records which consisted of an order dated October 10, 1997,

which was an adjudication of guilt for possession of less than

five pounds of marijuana. Additionally, the defendant, as a

16
juvenile, had committed numerous probation violations by

breaking into his mother's home, purchasing alcoholic

beverages, possessing a false identification card, assuming a

false name, and testing positive for amphetamines and

cannabinoids. The defendant also had been convicted in

Florida for possession of a false identification card.

The defendant presented extensive evidence about his

background and character. Dr. William Ling, a clinical

psychologist who qualified as an expert witness, presented

testimony favorable to the defendant. Dr. Ling testified,

however, that "the best predictor of future behavior is past

behavior," and that "[s]ubstance abuse has been shown to have

a high incidence or a high correlation with risk of future

violence."

IV.

The defendant filed 37 separate assignments of error.

However, the defendant failed to brief assignments of error 2,

3, 10, 11, 12, 13, 21, 23, 30, 31, and 32. Even though the

defendant claimed in his reply brief that he discussed these

assignments of error in his opening brief, the defendant's

assertions are incorrect. In his reply brief to the

Commonwealth's brief, the defendant purportedly identified

pages in his initial brief where the assignments of error were

discussed. We have reviewed the defendant's brief, and the

17
arguments are simply not present therein. Moreover, during

the oral argument before this Court, the defendant could not

demonstrate where in his brief these assignments of error were

addressed. He merely referred this Court to his reply brief.

In accordance with our well-established precedent, Lenz

v. Commonwealth, 261 Va. 451, 458, 544 S.E.2d 299, 303, cert.

denied, 534 U.S. 1003 (2001); Kasi v. Commonwealth, 256 Va.

407, 413, 508 S.E.2d 57, 60 (1998), cert. denied, 527 U.S.

1038 (1999), the following assignments of error, not having

been briefed, are waived:

"2. The court below erred in improperly
limiting voir dire of the jury venire by the
defense.

"3. The court below erred in allowing the
jurors be the judges of their own impartiality.

"10. It was error for the court below to
exclude Justin Wolfe's testimony that he had been
told that Ian Wiffin had been indicted.

"11. The court below erred in allowing the
Commonwealth to lead its own witnesses.

"12. The court below erred in allowing the
Commonwealth to present evidence that it had not
disclosed to the defense as required by the
Discovery Order and Rule 3A:11 of the Rules of the
Supreme Court of Virginia.

"13. The Court below erred in allowing the
Commonwealth to withhold exculpatory evidence, the
withholding of which was revealed during the course
of the trial, and which was producible in accordance
with the court's order and the applicable laws
regarding the prosecution's duty to provide

18
 exculpatory evidence in order to ensure a fair trial
and just outcome.

"21. The court below erred by failing to
instruct the jury on the necessity of and procedure
for balancing the aggravating and mitigating
factors.

"23. The court below erred in its instructions
on accessory before the fact, principle in the
second degree, and concert of action. These
instructions were erroneous.

"30. The court below erred by failing to set
aside the verdict when there was evidence that at
least one juror slept through part of the trial.

"31. The court below erred by stating that the
evidence presented at the judicial sentencing was
not new evidence, and ignoring the new evidence
presented for the first time at the judicial
sentencing which included evidence of false and
misrepresented facts in the Commonwealth's case.

"32. The court below erred by not rejecting
the jury recommendation of death and imposing a
sentence of life without parole."

We will not consider assignment of error 37 because it is

vague. That assignment of error states: "Such other grounds

as may become evident through a more thorough examination of

the record." Rule 5:17(c). The defendant does not assign any

error to his non-capital convictions. Accordingly, we will

affirm those convictions.

V.

The defendant has raised two issues on appeal that have

been decided adversely to his claims by our previous

19
decisions. We adhere to those rulings, and we will not

discuss them further. The issues previously resolved are:

(i) whether the future dangerousness aggravator is

unconstitutionally vague. This argument was rejected in Bell

v. Commonwealth, 264 Va. 172, 203, 563 S.E.2d 695, 716 (2002),

cert. denied, ___ U.S. ___, 123 S.Ct. 860 (Jan. 13, 2003);

Remington v. Commonwealth, 262 Va. 333, 355, 551 S.E.2d 620,

634 (2001), cert. denied, ___ U.S. ___, 122 S.Ct. 1928 (2002);

(ii) whether the vileness factor is unconstitutionally

vague. This argument was rejected in Morrisette v.

Commonwealth, 264 Va. 386, 397, 569 S.E.2d 47, 55 (2002); Beck

v. Commonwealth, 253 Va. 373, 387, 484 S.E.2d 898, 907, cert.

denied, 522 U.S. 1018 (1997).

VI.

The defendant argues that the circuit court erred in

failing to remove for cause two members of the venire,

Patricia Grisham and Leo Green. The defendant claims that the

circuit court should have removed these members of the venire

for cause because of their exposure to media coverage of the

crimes. The defendant states: "Juror Grisham remembered

being baffled as to why young people under the age of 21, and

not of legal drinking age, would be in a D.C. nightclub after

it happened. Juror Green said that he had read about it and

heard about it on the radio. He also recalled hearing about

20
the case the week before. He specifically remembered the guy

was killed, there was dope involved, and a stash of money was

found." The defendant claims there was "reasonable doubt"

regarding these jurors' ability to give him a fair and

impartial trial.

The defendant's contentions are without merit. The

circuit court and counsel conducted the voir dire of the

venire. Grisham stated that she had not acquired any

information about the defendant's alleged criminal acts from

the news media or other sources that would affect her

impartiality in this case. Grisham also stated that she did

not "know of any reason whatsoever why [she] would not be able

to give a fair and impartial trial to the Commonwealth and to

the accused based solely on the evidence [she] would hear in

this courtroom and the instructions of law" that the circuit

court would give the jury.

Additionally, the following colloquy occurred between the

Commonwealth's attorney and Grisham:

"Commonwealth's Attorney: This case involves
the alleged distribution of drugs by some young
people in Northern Virginia, one of whom was
followed into this County and killed.

"Do you think you have heard something about
that?

"Ms. Grisham: I believe I read it in The
Washington Post.

21
 . . . .

"Commonwealth's Attorney: Irrespective of what
you heard or read, would you be able to put that
aside and render an opinion based solely on the
evidence that you will hear in this courtroom and
the law that the Court will give you?

"Ms. Grisham: Yes."

The following colloquy occurred between defendant's counsel

and Grisham:

"Defense Counsel: You indicated that you . . .
read articles in The Washington Post.

"Ms. Grisham: Uh-huh.

"Defense Counsel: What do you remember of
those articles when they came out?

"Ms. Grisham: I think the part that I remember
the most is I believe that after it happened they
were at a nightclub, I believe, I want to say the
D.C. area. And I think I remember their ages as
being under twenty-one, a few of them.
"And I was – in my mind I was thinking, why are
they at a nightclub if they are not of legal
drinking age?

. . . .

"Defense Counsel: Did those articles have any
impact on your ability to – have you formed any
opinions about this case?

"Ms. Grisham: No.

. . . .

"Defense Counsel: And you think you can be
fair even in light of those articles?

"Ms. Grisham: Yes."

22
 The following colloquy occurred between defense counsel

and Green:

"Defense Counsel: Could you tell me what
reports you heard, to the best of your recollection,
or saw?

"Mr. Green: I don't remember any one in
particular. I just heard it on the news. I heard
about it and I read about it in the newspapers when
it happened. And then I think last week or sometime
when they brought it up again I heard it on the
news.

"Defense Counsel: Do you have any recollection
of any substance of the reports, or did you form any
opinions?

"Mr. Green: No. The only thing I remember was
that the guy was killed and there was dope involved
in it and they found a stash of money in there with
him. That's all I know about it.

"Defense Counsel: Do you think that you could
set aside those facts and listen only to the
testimony and evidence as presented during this
trial?

"Mr. Green: Yes.

"Defense Counsel: Do you think you could
forget about what you've heard in the media?

"Mr. Green: Yes."

In response to the court's question, "Have any of you

acquired any information about these offenses or about the

accused from the news media or other sources, and if so, would

that information affect your impartiality in these cases?,"

Green responded, "I have read the newspapers and heard on the

radio something about it." However, Green stated that he had

23
not "expressed or formed any opinions as to the guilt or

innocence of the accused." Green also stated that he could

put any information that he had read aside, listen to the

evidence presented in the courtroom, and render his verdict

based solely upon the evidence.

An accused has a constitutional right to an impartial

jury. U.S. Const. amends. VI and XIV; Va. Const. art. I, § 8.

Green v. Commonwealth, 262 Va. 105, 115, 546 S.E.2d 446, 451

(2001). Additionally, we have held that a prospective juror

"must be able to give [the accused] a fair and
impartial trial. Upon this point nothing should be
left to inference or doubt. All the tests applied
by the courts, all the enquiries made into the state
of the juror's mind, are merely to ascertain whether
[the juror] comes to the trial free from partiality
and prejudice.
"If there be a reasonable doubt whether the
juror possesses these qualifications, that doubt is
sufficient to insure his exclusion. For, as has
been well said, it is not only important that
justice should be impartially administered, but it
should also flow through channels as free from
suspicion as possible."

Wright v. Commonwealth, 73 Va. (32 Gratt.) 941, 943 (1879);

accord Green, 262 Va. at 115, 546 S.E.2d at 451; Barker v.

Commonwealth, 230 Va. 370, 374-75, 337 S.E.2d 729, 732-33

(1985); Justus v. Commonwealth, 220 Va. 971, 976, 266 S.E.2d

87, 90-91 (1980).

Additionally, this Court must give deference to the

circuit court's determination whether to exclude a prospective

24
juror because the circuit court was able to see and hear each

member of the venire respond to the questions asked. The

circuit court is in a superior position to determine whether a

prospective juror's answers during voir dire indicate that the

juror would be prevented from or impaired in performing the

duties of a juror required by the juror's oath and the court's

instructions. Green, 262 Va. at 115, 546 S.E.2d at 451;

Lovitt v. Commonwealth, 260 Va. 497, 510, 537 S.E.2d 866, 875

(2000), cert. denied, 534 U.S. 815 (2001). This Court must

consider the voir dire as a whole, and not simply the juror's

isolated statements. Clagett v. Commonwealth, 252 Va. 79, 90,

472 S.E.2d 263, 269 (1996), cert. denied, 519 U.S. 1122

(1997). And, we will not disturb the circuit court's refusal

to strike a juror for cause unless that decision constitutes

manifest error. Green, 262 Va. at 116, 546 S.E.2d at 451;

Clagett, 252 Va. at 90, 472 S.E.2d at 269; Roach v.

Commonwealth, 251 Va. 324, 343, 468 S.E.2d 98, 109, cert.

denied, 519 U.S. 951 (1996).

Applying the aforementioned principles, we hold that the

circuit court did not abuse its discretion when it refused to

grant the defendant's motion to strike Grisham and Green. Our

review of the entire voir dire of Grisham and Green, including

their statements summarized above, indicates that these

jurors' ability to give the defendant a fair and impartial

25
trial was not left to inference or doubt. Both Grisham and

Green stated that they could put aside any information that

they had read or heard and give the defendant a fair trial

based solely upon the evidence admitted during the trial and

the jury instructions that the court would give to the jury.

And, as the Supreme Court has held, the federal Constitution

does not require that a court disqualify a juror simply

because that juror has been exposed to media coverage. Mu'Min

v. Virginia, 500 U.S. 415, 430 (1991). Accord Murphy v.

Florida, 421 U.S. 794, 799-800 (1975); Irvin v. Dowd, 366 U.S.

717, 722-23 (1961).

VII.

Guilt Phase

A.

During the guilt phase of the capital murder trial, the

Commonwealth presented several witnesses who testified that

the defendant had planned to rob drug dealers. The defendant

argues that "[t]his evidence was only admissible if it was

being used to prove felony murder" but that "the Commonwealth

relied on this evidence to prejudice the jury against Mr.

Wolfe." We will not consider this argument because the

defendant did not object to the admission of this evidence at

trial. Rule 5:25.

B.

26
 The defendant claims that the circuit court erred because

it purportedly "permitted a lay witness to express an opinion

about what she thought might have happened on the night of the

offense." Not only does the defendant mischaracterize Janelle

Johnson's testimony, but the defendant failed to make any

objection to such purported testimony and, therefore, we will

not consider this argument. Rule 5:25.

C.

The defendant argues that the circuit court erred because

it permitted witnesses Chad Hough and Jason Coleman to violate

the rule on the exclusion of witnesses, and the court failed

to strike Hough's testimony. The defendant claims that even

though the court granted a joint motion by the defendant and

the Commonwealth to exclude the witnesses pursuant to Code

§ 19.2-265.1, Hough and Coleman violated that order. The

defendant says that his counsel spoke with Coleman after Hough

had testified during the trial. Allegedly, Hough discussed

with Coleman, in detail, defense counsel's cross-examination

of Hough.

Continuing, the defendant states that "[e]ven though the

Commonwealth did not call Coleman as a witness, the

impropriety prevented the defendant from calling him and

getting his unfettered answers and/or surprised reaction. It

put the defense in the position of having to cross-examine

27
[its] own witness had Coleman not answered with the

anticipated response. To balance the impact of having Hough's

testimony alone, [Coleman's] testimony should have been

stricken."

The circuit court denied the defendant's motion for a

mistrial. The court stated that neither Hough nor Coleman was

in the courtroom when the court granted the motion to exclude

witnesses. The court concluded: "It would be awful hard for

this Court to find any intentional impropriety simply because

these witnesses were not here to receive the Court's order.

And indeed, the Commonwealth may have talked to these

witnesses, but you [defense counsel] talked to the witnesses

also because you said you actually called the witness, Mr.

Coleman, and talked to him."

Code § 19.2-265.1 requires a circuit court to exclude

witnesses from the courtroom upon the motion of any litigant.

We have held that a circuit court has discretion to decide

whether a witness who violates an exclusion order should be

prohibited from testifying. Brickhouse v. Commonwealth, 208

Va. 533, 537, 159 S.E.2d 611, 614 (1968). "Factors to be

considered in resolving the question include whether there was

prejudice to the defendant and whether there was intentional

impropriety attributable to the prosecution. It is also

pertinent whether the out-of-court comments concerned any

28
substantive aspect of the case and whether they had any effect

on the witness' testimony." Bennett v. Commonwealth, 236 Va.

448, 465, 374 S.E.2d 303, 314 (1988), cert. denied, 490 U.S.

1028 (1989).

Applying our precedent, we hold that the circuit court

did not abuse its discretion when it denied defendant's motion

for a mistrial. The defendant failed to establish that he was

prejudiced, and he failed to show any intentional impropriety

attributable to the Commonwealth. And, as we have already

stated, the circuit court found that neither Hough nor Coleman

was aware of its ruling that excluded the witnesses.

D.

The defendant argues that the Commonwealth's evidence

established that he was guilty of the crime of felony murder,

not capital murder. The defendant states that Ian Wiffin,

whom the defendant describes as a key witness for the

Commonwealth, testified that the defendant told Wiffin after

the crimes had occurred that Barber "was supposed to rob [the

victim], but he messed it up and ended up killing him."

Continuing, the defendant contends that at the very least, the

Commonwealth's evidence established reasonable doubt whether

the defendant hired Barber to kill the victim. The

defendant's contentions lack merit.

29
 The jury in this case was properly instructed by the

court to consider all the evidence. Our review of the record

in this case reveals that the Commonwealth presented evidence

that permitted the jury to find beyond a reasonable doubt that

the defendant hired Barber to kill Daniel Petrole. Barber

testified that the defendant paid him to kill Petrole.

Pursuant to the terms of the agreement, the defendant agreed

to pay Barber $10,000 in cash, he forgave Barber's prior drug

debts and gave Barber a half pound of marijuana. The

defendant and Barber stalked the victim on numerous occasions

in an effort to kill him. The defendant devised a plan to

lure the victim to the defendant's girlfriend's apartment so

that Barber could then follow the victim and execute him at

the appropriate time. After Barber killed the victim, Barber

called the defendant. Barber and the defendant met at a club,

and the defendant boasted that he just made a "rack of cake,"

a slang expression for "a lot of money." And, Barber's

version of the murder-for-hire scheme is consistent with the

testimony of numerous other witnesses. Moreover, contrary to

the defendant's assertion, the jury was not required to accept

as true his self-serving statements that he made after the

murder that Barber "messed it up and ended up killing

[Petrole]."

E.

30
 Hough and Ian Wiffin, who testified on behalf of the

Commonwealth, stated that criminal charges were pending

against them in the federal district courts for possession and

distribution of drugs. Hough had executed a plea agreement

with a United States Attorney in West Virginia that provided a

maximum punishment of 20 years imprisonment. Pursuant to the

terms of the agreement, the United States Attorney was

required to make "nonbinding recommendations" to the federal

district court for reductions in Hough's sentence based upon

his cooperation with federal law enforcement agencies. Hough

testified at trial that he hoped that the federal district

court would reduce his sentence based on his cooperation and

testimony in the defendant's capital murder trial.

Wiffin had been indicted by a federal grand jury in

Virginia. He testified that his lawyer had advised him that

his testimony "might help" Wiffin in his federal criminal

proceedings. A draft of a plea agreement had been prepared,

but no agreement had been executed between Wiffin and the

United States Attorney.

At trial, the defendant tried to present testimony from

an attorney who considered himself an expert on the subject of

federal sentencing guidelines. The circuit court refused to

permit this purported expert witness to testify because, among

other things, such testimony would have been pure speculation.

31
 We agree with the circuit court, and we hold that the

court did not abuse its discretion when it refused to permit

such testimony. The plea agreement that Hough had executed

with a United States Attorney simply provided that the United

States would make nonbinding recommendations on his sentence

based upon his cooperation with federal authorities. No one,

including the so-called expert witness, could opine what

sentence the federal district court would ultimately impose

upon Hough. Wiffin had not yet signed a written agreement

with a United States Attorney in Virginia. Accordingly, any

so-called expert testimony on this subject would have been

utter speculation and, thus, inadmissible. As we have

recently stated, expert testimony that is speculative is not

admissible. John v. Im, 263 Va. 315, 320, 559 S.E.2d 694, 696

(2002).

VIII.

A.

Penalty Phase

Code § 19.2-264.2 states:

"In assessing the penalty of any person
convicted of an offense for which the death penalty
may be imposed, a sentence of death shall not be
imposed unless the court or jury shall (1) after
consideration of the past criminal record of
convictions of the defendant, find that there is a
probability that the defendant would commit criminal
acts of violence that would constitute a continuing
serious threat to society or that his conduct in

32
 committing the offense for which he stands charged
was outrageously or wantonly vile, horrible or
inhuman in that it involved torture, depravity of
mind or an aggravated battery to the victim; and (2)
recommend that the penalty of death be imposed."

The defendant argues that the evidence is insufficient as a

matter of law to establish his future dangerousness. The

defendant states that he has never been charged with, involved

in, or convicted of any violent or assaultive crime. He

states that his prior record of simple possession of

marijuana, possession of a false identification, and obtaining

alcohol while under the age of 21 is insufficient to prove his

future dangerousness. Additionally, he says that the key

evidence upon which the Commonwealth relied to prove future

dangerousness involved a student who brought a razor blade and

syringes to school in violation of school rules. The

defendant's brother, not the defendant, was guilty of that

infraction. We disagree with the defendant's contentions that

the evidence is insufficient to prove that he is a future

danger.

Based upon our review of the record, we hold that the

evidence of record permitted the jury to find that there is a

probability that the defendant would commit criminal acts of

violence that would constitute a continuing serious threat to

society. Contrary to the defendant's assertion, it is not

necessary that he have a prior criminal record as a predicate

33
on which the jury must rely before it can sentence him to

death based on future dangerousness. Kasi, 256 Va. at 423,

508 S.E.2d at 66; Goins v. Commonwealth, 251 Va. 442, 467, 470

S.E.2d 114, 130-31, cert. denied, 519 U.S. 887 (1996); Breard

v. Commonwealth, 248 Va. 68, 86, 445 S.E.2d 670, 681, cert.

denied, 513 U.S. 971 (1994); Murphy v. Commonwealth, 246 Va.

136, 144, 431 S.E.2d 48, 53, cert. denied, 510 U.S. 928

(1993).

The evidence of record establishes, beyond a reasonable

doubt, that this defendant is a future danger to society. The

defendant was a major drug dealer in Northern Virginia. He

had been a major drug dealer for four or five years before

March 15, 2001, the date he arranged for the murder of his

supplier. He admitted that he sold over 100 pounds of

marijuana, and he purchased between eight and 18 pounds of

marijuana every two weeks from the victim.

Prior to this murder, the defendant had spoken with

others and discussed committing robberies of drug suppliers.

For example, Hough testified that he and the defendant "talked

about performing robberies most of the time. Almost every

time we got together, it was usually some type of robbery

connected with drugs." Additionally, Hough stated that "[i]t

was usually like maybe holdup styles, as far as whether – I

remember one time it was – Justin would go to make a buy. We

34
would go in and tie them up and beat them up and take the

drugs and money . . . ."

The evidence also showed that the defendant and another

friend, Coleman, purchased ski masks and duct tape in

furtherance of a plan to rob a drug dealer. The defendant and

Hough discussed robbing a drug dealer who lived in Washington,

D.C., but they abandoned their plan because the defendant

concluded that the level of security in the apartment building

where the intended victim lived was too extensive.

The evidence showed that this defendant devised a plan

whereby he lured Petrole, his major drug supplier, to a

specific location in Virginia. The defendant paid his

longtime friend, Barber, to follow Petrole, and then execute

him because Petrole knew too many people. The defendant

directed Barber to kill Petrole, stating, "we got to shoot him

because he knows too many people." The evidence also showed

that prior to the actual murder of Petrole, the defendant and

Barber had made several other attempts to locate and kill

Petrole. Certainly, these acts are sufficient to support the

jury's finding beyond a reasonable doubt that there is a

reasonable probability that this defendant is a future danger

to society. Additionally, the fact that soon after Petrole

was killed, the defendant celebrated at a party and drank a

35
toast in honor of the murder is indicative of the danger he

poses to others.

B.

The defendant argues that Code § 19.2-264.2 does not

permit him to be sentenced to death based upon the vileness

predicate because the vile acts of Barber cannot be attributed

vicariously to the defendant. Additionally, the defendant

argues that the evidence was not sufficient to establish

vileness. We need not, and expressly do not, consider these

arguments because the defendant was sentenced to death based

upon the vileness predicate as well as the future

dangerousness predicate. The future dangerousness predicate

is a separate and independent basis to support the imposition

of the death penalty, and as we have already discussed, the

evidence was sufficient to establish that the defendant

constituted a continuing serious threat to society.

IX.

During the penalty phase of the trial, the jury, as

required by our decision in Yarbrough v. Commonwealth, 258 Va.

347, 374, 519 S.E.2d 602, 616 (1999), cert. denied, ___ U.S.

___, 122 S.Ct. 1925 (2002), was instructed that it could

sentence the defendant to life imprisonment, life imprisonment

and a fine, or death, and that: "the words 'imprisonment for

36
life' mean imprisonment for life without possibility of

parole."

After the jury began to deliberate on the appropriate

punishment, the jury submitted several questions to the

circuit court. Among other things, the jury asked the

following questions: "Does life imprisonment mean that the

defendant will never be released from prison by any means?"

The court, out of the jury's presence, informed counsel as

follows:

"The Court has not considered this a parole
question because [the jury] didn't mention the word
parole. It says by any means and this gets into
areas of executive clemency and the other means,
because obviously [the jury] said any means.
"So I don't think the Court – it's
[in]appropriate for me to address the question one
way or the other."

The defendant's counsel stated that the court should instruct

the jury that parole had been abolished. The court responded:

"I think [the jury has] been informed . . . in
the instruction that [the jury has] already
received, which says that life imprisonment means
imprisonment for life without the possibility of
parole.
"That instruction [the jury has] and I notice
this question did not mention parole. This is not a
parole question. . . .
"I think obviously what [the jury is] talking
about is any means and we're talking about like
executive clemency, for example, or any other means
that may be available and I think it's inappropriate
to be addressed at this time."

37
The circuit court instructed the jury that it must proceed on

the instructions that the jury had already received from the

court.

The jury began to deliberate further. Subsequently, the

jury submitted another written question to the court: "In the

instructions it says 'life means life' – what is the

definition of life?" The court responded: "The instruction

you received says 'The words "imprisonment for life" mean

imprisonment for life without possibility of parole.' " The

defendant objected to the court's response and suggested that

the word "life" means "Justin Wolfe's natural life." The

court responded:

"That could be misleading because that's not
what it means in that instruction . . . . You do
have executive clemency, you do have geriatric
parole. So obviously if we take that definition [of
Justin Wolfe's natural life] that's not accurate.
"What the Court has proposed is simply to tell
them to go back and read the definition – the
instruction because the instruction didn't say life
means life, first of all. The instruction says the
words imprisonment for life mean imprisonment for
life without the possibility of parole. That's the
instruction that comes from our 1999 Yarbrough v.
Commonwealth case that our Supreme Court says was
the proper instruction to be given when requested by
defense counsel.
"If we expand that, I think we're going into
areas that simply would not be accurate."

The defendant argues that the circuit court should have

instructed the jury that "imprisonment for life means Justin

38
Wolfe's natural life." We disagree with the defendant's

contentions.

In Bell, supra, a jury in the trial of a capital murder

case was instructed regarding the definition of imprisonment

for life as mandated by our decision in Yarbrough. The jury

asked the circuit court, " 'Understanding that imprisonment

for life means no possibility of parole, is there any other

way to be released from prison?' " The court instructed the

jury that it " 'would have to rely on the evidence that [it]

heard, and the instructions already presented in deciding the

punishment.' " The circuit court in Bell concluded that a

more detailed answer to the jury's question would have

required the court to discuss matters that were speculative

and inappropriate for the jury to consider. 264 Va. at 204,

563 S.E.2d at 716.

In Bell, we stated that the question that the jury asked

"was general and could not have been accurately
answered without telling the jury about executive
clemency or pardon. Yet, we have never allowed a
jury to have that information because of the
potential for jury speculation resulting in a
harsher sentence than would otherwise be warranted.
"So, the only response that would have
comported with our precedent was to instruct the
jurors that geriatric release and sentencing credits
were not available to Bell and that they should not
concern themselves with anything else. Yet, that
kind of response would have suggested that there is
some other form of early release still available to
Bell and would have, in fact, invited the jury to
speculate. . . . Such speculation is 'inconsistent

39
 with a fair trial both to the defendant and the
Commonwealth.' "

Id. at 207-08, 563 S.E.2d at 718. We concluded in Bell that

the circuit court did not err when it directed the jury to

rely on the evidence that it had heard and the instructions

that it had been given because any other response would have

either been inaccurate or would have led to speculation by the

jury.

Our holding in Bell requires a similar conclusion in this

appeal. Had the circuit court instructed the jury, as

requested by the defendant, that natural life meant the

natural life of Justin Wolfe, such response would have been

inaccurate because, just as in Bell, that response would have

negated the possibility of early release through an act of

executive pardon or clemency. These possibilities are

inappropriate for a jury to consider because such information

could cause the jury to speculate, and such speculation might

result in a harsher sentence than would otherwise be

warranted. Accordingly, we hold that the circuit court did

not err when it denied the defendant's request for a jury

instruction that life means the natural life of Justin Michael

Wolfe.

X.

40
 The defendant argues, in a very conclusional fashion,

that he was somehow deprived of his right to due process

because of Rule 1:1. The defendant's contention lacks merit.

Rule 1:1 states in part:

"All final judgments, orders, and decrees,
irrespective of terms of court, shall remain under
the control of the trial court and subject to be
modified, vacated, or suspended for twenty-one days
after the date of entry, and no longer. But
notwithstanding the finality of the judgment, in a
criminal case the trial court may postpone execution
of the sentence in order to give the accused an
opportunity to apply for a writ of error and
supersedeas; such postponement, however, shall not
extend the time limits hereinafter prescribed for
applying for a writ of error."

Even though the defendant asserts that the circuit court

refused to grant him an evidentiary hearing within the 21 days

after a witness purportedly recanted her testimony, the

defendant does not demonstrate how he was deprived of any

right of due process. Our review of the record shows that the

circuit court considered and denied all the defendant's post-

trial motions in a timely manner and that Rule 1:1 was not

implicated in the proceedings below.

XI.

The defendant argues that the Commonwealth's attorney

"misstated both the facts and the law to the jury."

Continuing, the defendant asserts that the Commonwealth

presented "false evidence about a school incident." The

41
defendant also argues that the Commonwealth asked the jury

during its closing argument "to impose the death sentence in

order to 'send a message' to those who would consider getting

involved in drugs and told the jury that Mr. Wolfe may not

stay in prison. These false statements about the facts and

the law individually, and in combination, denied Mr. Wolfe a

fair trial."

The defendant's contentions regarding the closing

argument are without merit. The defendant did not object to

the Commonwealth's closing argument and, therefore, he may not

raise objections to this argument for the first time on

appeal. Rule 5:25.

During the cross-examination of several of the

defendant's witnesses during the penalty phase of the trial,

the Commonwealth's attorney asked those witnesses about an

incident that occurred when the defendant allegedly took razor

blades and syringes to school when he was in parochial school.

For example, the Commonwealth asked the defendant's stepmother

the following:

"Q: How many conversations do you think you
had with the [defendant's parochial school]
principal there?

"A: I only remember having one.

"Q: Only one?

42
 "A: And I don't even remember what it was
about.

"Q: And you don't remember that being about
him bringing razor blades and syringes to school?

"A: Now that you mention it, I do, but I had
forgotten it.

"Q: Oh, I see. You do remember that occurred.
And you do remember going down there and pleading
with the principal to please let [the defendant]
stay in school there?

"A: I don't remember pleading.

"Q: What do you remember, ma'am?

"A: I'm sorry. I remember having a discussion
with the principal. . . . I was concerned.

"Q: Do you remember that that was what the
problem was, that he had brought razor blades and
syringes into the school?

"A: Yes."

Michael W. Wolfe, the defendant's father, testified that

the defendant did not take razor blades and syringes to school

when he was in the eighth grade, but that his brother, Wesley

J. Wolfe, had done so. Even though the Commonwealth

vigorously cross-examined the defendant's father on this

point, the defendant's father consistently stated that Wesley

Wolfe, not Justin Wolfe, had taken the razor blades and

syringes to school. The defendant's mother, Theresa

Steinberg, also testified that Wesley Wolfe, who was a fourth-

grade student at the time the incident occurred, found a bag

43
of razor blades and syringes and took them to school, and that

the defendant had no involvement in that incident. Wesley

Wolfe testified that he, not the defendant, took the razor

blades to school when he was in the fourth grade.

Marilyn S. Valatka, principal of the school that the

defendant attended, testified during the penalty phase that

according to her recollection, the defendant brought to school

a small package of razor blades and a couple of plastic

syringes, not needles. However, several months after the jury

had sentenced the defendant to death, the defendant presented

an affidavit from Ms. Valatka, who claimed that she was

mistaken about her testimony that the defendant brought the

razor blades and syringes to school. The circuit court

refused to consider the affidavits. The court stated: "I

think we should not proceed on the affidavits at this time

because those witnesses could have been present for the Court

to consider and are not. So I'm not going to proceed on

affidavits." The defendant did not assign error to the

circuit court's ruling. The affidavits upon which the

defendant relies to make his argument are not a part of the

record before this Court and, therefore, we will not consider

them or the defendant's related arguments based upon those

affidavits.

XII.

44
 The defendant argues: "The indictment charging Justin

Wolfe with capital murder is defective as a matter of law.

The grand jury failed to vote on the aggravators in [Code]

§§ 19.2-264.3 and .4 which are necessary for consideration of

the death penalty, and did not reference by words or citation

the required predicate facts that must be proved beyond a

reasonable doubt before the death penalty may even be

considered as a possible punishment. These factors are

elements . . . in a separate statute which was not considered

by the grand jury and they were not a part of the indictment."

The defendant's contentions challenge the content and

sufficiency of the indictment. However, the defendant did not

raise his contentions in the circuit court until several

months after the jury had returned its verdict. We will not

consider the defendant's contentions because he failed to

raise those contentions in a timely manner.

Rules 3A:9(b) and (c) mandate that a defense "based on

defects in the institution of the prosecution or in the

written charge upon which the accused is to be tried" must be

raised "before a plea is entered" or "at least 7 days before

the day fixed for trial." Pursuant to this Rule, failure to

make a timely defense constitutes a waiver, except for

jurisdictional defects, which are not present in this appeal.

Additionally, this Court has consistently and repeatedly held

45
that generally a defendant must challenge the sufficiency of

an indictment before the jury's verdict, or the alleged defect

is waived. See Stamper v. Commonwealth, 228 Va. 707, 713, 324

S.E.2d 682, 686 (1985); Washington v. Commonwealth, 216 Va.

185, 192, 217 S.E.2d 815, 822 (1975); Guthrie v. Commonwealth,

212 Va. 550, 551, 186 S.E.2d 26, 28 (1972); McDougal v.

Commonwealth, 212 Va. 547, 549, 186 S.E.2d 18, 20 (1972);

Forester v. Commonwealth, 210 Va. 764, 767, 173 S.E.2d 851,

854 (1970); Council v. Smyth, 201 Va. 135, 138, 109 S.E.2d

116, 119 (1959); Bailey v. Commonwealth, 193 Va. 814, 822, 71

S.E.2d 368, 372 (1952); Honaker v. Commonwealth, 136 Va. 752,

754, 118 S.E. 85, 86 (1923); Flanary v. Commonwealth, 133 Va.

665, 666, 112 S.E. 604, 604 (1922); Burgess v. Commonwealth, 4

Va. (2 Va. Cas.) 483, 488 (1825).

XIII.

Passion and Prejudice

Code § 17.1-313(C)(1) requires that this Court determine

"[w]hether the sentence of death was imposed under the

influence of passion, prejudice or any other arbitrary

factor." The defendant argues that his sentence of death was

imposed under the influence of passion, prejudice, and other

arbitrary factors. He claims that the jury was prevented from

considering all the evidence in a fair manner because of the

purported false argument by the Commonwealth's attorneys, the

46
admission of victim impact testimony that did not fall within

the parameters of the statute authorizing such testimony, and

the admission of unadjudicated prior conduct when the

Commonwealth purportedly did not provide notice of its intent

to rely on such evidence. We disagree with the defendant's

contentions.

First, we have reviewed the Commonwealth's closing

argument during the penalty phase of the trial, and we find no

statements in the closing argument that would have inflamed

the jury. The circuit court properly permitted the victim's

mother to testify about the impact that the murder of her son

has had upon her family because such testimony is within the

scope of Code §§ 19.2-299.1 and 19.2-264.4.

The defendant complains that the Commonwealth asked

improper questions of certain witnesses that improperly

inflamed the jury. The Commonwealth asked a friend of the

defendant who testified at trial whether he knew that the

defendant was a drug dealer, and whether he knew about the

"hundreds of thousands of dollars that was flowing through

[the defendant's] house on a weekly basis," and the witness

responded, "no." The defendant's father was also asked during

cross-examination in the penalty phase whether he knew that

his son made hundreds of thousands of dollars selling drugs,

and the father responded, "no." The defendant's brother,

47
Wesley Wolfe, was also asked by the Commonwealth whether he

knew that the defendant "had plenty of money, hundreds of

thousands of dollars," and the brother responded, "no."

Contrary to the defendant's assertions, we hold that these

questions did not inflame the jury. In fact, there is

evidence in this record from which the jury could have found

that the defendant was involved in the purchase and sale of

hundreds of thousands of dollars worth of illegal drugs.

The defendant contends that the sentence of death was

imposed based upon the influence of passion, prejudice, or

other arbitrary factors because the Commonwealth stated that

the defendant had a history of violence. The defendant claims

that the Commonwealth's statement regarding his "history of

violence" was based upon an incident that involved a student

who took a razor blade and syringes to school in violation of

school policies. The defendant claims that his brother was

the individual who was involved in this incident.

We have reviewed the Commonwealth's closing argument in

the penalty phase of the trial, and the Commonwealth simply

does not refer to this incident. The Commonwealth's reference

to the defendant's history of violence pertained to the

defendant's prior efforts to enlist others to rob drug

dealers. For example, the Commonwealth stated:

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 "You heard [Janelle] Johnson say her husband,
or ex-husband, whatever the status of their marriage
is today, was one of [the defendant's] confederates.
They talked on the phone about robbing people. They
talked about robbing Matt Chevlin.
"They took the weapon which you've seen . . .
her gun . . . and they would go out to collect drug
debts.
"That is not violent? Now, he didn't have a
gun in his possession. He went along with Mr.
Coleman, because Mr. Coleman is his confederate,
because he is not the type of person, from all of
the evidence that would actually take the gun and
commit the act.
"No, he's the type of person who would direct
someone to do it."

We have reviewed the entire record as required by Code

§ 17.1-313(C)(1), and we conclude that the sentence of death

was not imposed under the influence of passion, prejudice, or

any other arbitrary factor.

XIV.

Excessiveness and Proportionality

Code § 17.1-313(C)(2) requires this Court to consider and

to determine "[w]hether the sentence of death is excessive or

disproportionate to the penalty imposed in similar cases,

considering both the crime and the defendant." The test of

proportionality that we apply is whether "juries in this

jurisdiction generally approve the supreme penalty for

comparable or similar crimes." Hedrick v. Commonwealth, 257

Va. 328, 342, 513 S.E.2d 634, 642, cert. denied, 528 U.S. 952

(1999). Accord Murphy v. Commonwealth, 246 Va. 136, 145, 431

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S.E.2d 48, 54, cert. denied, 510 U.S. 928 (1993) (quoting

Stamper v. Commonwealth, 220 Va. 260, 284, 257 S.E.2d 808, 824

(1979), cert. denied, 445 U.S. 972 (1980)).

The defendant argues that his sentence is excessive when

compared to similar cases. We have examined the records of

all capital murder cases reviewed by this Court when, as here,

the death penalty was based upon murder for hire. Williams v.

Commonwealth, 252 Va. 3, 472 S.E.2d 50, cert. denied, 519 U.S.

998 (1996); Murphy, 246 Va. 136, 431 S.E.2d 48; Stockton v.

Commonwealth, 227 Va. 124, 314 S.E.2d 371, cert. denied, 469

U.S. 873 (1984); Clark v. Commonwealth, 220 Va. 201, 257

S.E.2d 784 (1979), cert. denied, 444 U.S. 1049 (1980). Even

though no two capital murder cases are identical, we are

confident that given the special heinousness associated with

the murder for hire in this particular case, the sentence of

death is neither excessive nor disproportionate to sentences

generally imposed by other sentencing bodies in this

Commonwealth for crimes of a similar nature considering the

crime and this defendant.

XV.

We have considered all the defendant's remaining

arguments, and they are without merit. Having reviewed the

sentence of death, finding no reversible error in the record,

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and perceiving no reason to commute the death sentence, we

will affirm the judgment of the circuit court.

Affirmed.

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