Thomas v. Commonwealth

Present: All Justices

JEFFREY ALLEN THOMAS
OPINION BY
v. Record Nos. 012253 & 012254 JUSTICE ELIZABETH B. LACY
March 1, 2002
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PULASKI COUNTY
Colin R. Gibb, Judge

In this appeal, we review the capital murder conviction

and death penalty imposed upon Jeffrey Allen Thomas, along

with his convictions for attempted rape and use of a firearm

in the commission of a murder.

I. PROCEEDINGS

On June 26, 2000, Jeffery Allen Thomas was indicted by a

Pulaski County grand jury for capital murder in the commission

of or subsequent to rape or attempted rape, Code § 18.2-31(5);

for rape 1 or attempted rape, Code §§ 18.2-61 and 18.2-67.5; and

for the use of a firearm in the commission of a murder, Code

§ 18.2-53.1. 2 At the conclusion of the first stage of a

bifurcated jury trial conducted pursuant to Code §§ 19.2-264.3

and -264.4, the jury convicted Thomas of all offenses. At the

penalty phase of the trial, the defendant chose not to present

1
The charge of rape was struck by the trial court on
March 8, 2001.
2
Thomas was also indicted for possession of a firearm
after having been previously convicted of a felony, Code
§ 18.2-308.2, but the trial court granted the defendant's
motion to sever that indictment on the grounds that justice
required separate trials pursuant to Rule 3A:10.
mitigation evidence. The jury fixed Thomas' punishment at

death for capital murder, based upon a predicate finding of

"vileness," at ten years imprisonment for attempted rape, and

at three years imprisonment for the use of a firearm in the

commission of a felony. Thomas elected to present evidence in

mitigation at the sentencing hearing. After reviewing this

evidence and the post-sentence report, the trial court entered

a final order on July 16, 2001 confirming the convictions and

imposing the sentences recommended by the jury.

We have consolidated the automatic review of Thomas'

death sentence with his appeal of the capital murder

conviction in Record No. 012253, Code §§ 17-110.1(A) and -

110.1(F), and have given them priority on the docket, Code

§ 17-110.2. We have also certified from the Court of Appeals

of Virginia Thomas' appeal of his non-capital convictions,

Record No. 012254, and have consolidated the two records for

consideration.

II. EVIDENCE

Pursuant to established principles of appellate review,

we will view the evidence in the light most favorable to the

Commonwealth. Cheng v. Commonwealth, 240 Va. 26, 42, 393

S.E.2d 599, 608 (1990). Tara Rose Munsey was a 16-year-old

sophomore at Radford High School. On the morning of January

25, 2000, the defendant Thomas had unsuccessfully tried to

2
reach Tara by telephone. He eventually talked with her and

invited her to join him and another friend, James Moede, at

Moede's apartment. Tara, some of her friends, Moede, and

Thomas were at Moede's apartment smoking marijuana until about

2:30 p.m. when Tara left to go to work. When Tara drove away

from the apartment, her friends observed Thomas follow Tara's

car.

After Tara left Moede's apartment, she went to the bank

and withdrew $5.00 from her savings account before reporting

to work at a fast food restaurant. While at work, she

received a telephone call from her father who asked her to

meet him at a basketball game later that evening. Tara agreed

to meet him. Around 8:00 p.m., on the way to the arranged

meeting place, Tara's father saw her car in the restaurant's

parking lot. He went into the restaurant only to learn that

Tara had "clocked out" approximately 30 minutes earlier. Tara

never met her father that evening.

Sixteen days later, on February 10, 2000, her snow-

covered body was found below a railroad access road in a

wooded ravine along the western bank of the New River near

Parrott. Tara had been shot three times in the head and once

in the chest. She was nude from the waist up. Forensic

evidence established that the muzzle of the murder weapon, a

.22 caliber Marlin rifle, had been held against her left

3
temple for one shot, in front of her left ear for another, and

against the center of her chest for a third, but was unable to

specify the muzzle placement of the third shot to her head.

In addition to gunshot wounds, Tara had bruises on the left

side of her jaw, her left arm, right leg, and upper left

thigh.

At an interview on February 10, which had been scheduled

before Tara's body was discovered, Thomas told the police that

he had spent the night of January 25 at Kevin Williams' house.

When asked if he had been to the railroad tracks lately,

Thomas replied that he had not "killed nobody."

When Pulaski Police interviewed Kevin Williams on

February 12, 2000, Williams said Thomas did not spend the

night at Williams' house on January 25. Williams also told

the police that he owned a .22 caliber Marlin rifle that he

had left in Thomas' car some time between December 6, 1999 and

January 30, 2000. Williams said that he did not want to carry

the gun up his icy driveway and that Thomas offered to "take

care of it." Although Thomas promised to return the rifle, he

never did. When asked about Williams' rifle in his February

10, 2000 interview, Thomas stated that he had given the rifle

to a mutual friend, Leonard Dalton, to return to Williams.

Using evidence collected from the crime scene in

conjunction with the interviews of Williams and Thomas, the

4
police obtained a warrant on February 15, 2000 to search

Thomas' car and to recover blood, clothing, saliva, and hair

samples from his person. The police executed the search on

February 16, 2000 and collected ten loose hairs from Thomas'

car, various other physical samples, and Thomas' shoes.

The physical evidence recovered from the crime scene

included cigarette butts, Tara's coat and shirt, her car keys,

and a .22 caliber shell casing. A firearms expert determined

that two of the bullets recovered in the autopsy of Tara had

been fired from a .22 caliber rifle manufactured by Marlin.

Comparison of the shell casing with shell casings found near

Kevin Williams' porch showed that they had been fired from the

same rifle. Two partial shoe impressions found on Tara's

shirt matched the pattern on the sole of the right shoe

recovered from Thomas.

A trace evidence expert testified that three of the hairs

recovered from Thomas' car were consistent with Tara's hair.

Expert testimony also established that the DNA markers of the

hair were consistent with Tara's genetic markers and that the

genetic material found on the partially smoked cigarette

matched Thomas' DNA. DNA consistent with Thomas' DNA was also

found on the bottom sole of Tara's right shoe, in the blood

stains on Tara's clothes, in semen found on the front of

Tara's underwear, and underneath her fingernails.

5
 On February 15, 16, and 17, 2000, the police interviewed

Barbara E. Helton. Thomas had been staying at Helton's house

"intermittently" since the morning of January 26, 2000. In an

interview on February 17th, Helton told police that Thomas

confessed to her that he had killed Munsey. She stated that

Thomas came to her house at 6:30 a.m. on January 26, 2000 and

woke her up. Thomas's clothes were wrinkled and his shoes

muddy. He was nervous and asked Helton not to tell anyone he

was there. Helton testified that Thomas told her that he "had

just f----- up" and that he "wished he had done it a different

way; that he didn't mean to do it." Continuing, Thomas told

her that he had met Tara "at her job, and they went down the

road to party a little bit, and he assumed she wanted sex."

Thomas told Helton that they got into an argument near "a

deserted spot . . . [t]hat had a ditch." During the argument,

Tara "pushed" Thomas and "he pushed her, and she fell down."

According to Helton, Thomas said that Tara "was on her hands

and knees," when "he grabbed the gun from his side and shot

her three times in the head." Thomas told Helton that he

threw the gun "in some water."

On February 17, 2000, Thomas was served with two arrest

warrants for capital murder and use of a firearm while

committing capital murder. During a post-arrest interview

with Pulaski County Sheriff A.J. Davis, Thomas stated that,

6
after leaving Moede's home on the afternoon of January 25, he

followed Tara because she wanted to buy some marijuana from

him, which he sold to her after she got some money from the

bank. When Tara went to work, Thomas said he drove around.

After making a statement that he had telephoned Williams, but

Williams was not home, Thomas invoked his right to counsel and

terminated the interview.

III. ISSUES PREVIOUSLY DECIDED

Thomas raises 38 assignments of error. In Assignment of

Error 11, Thomas advances a number of arguments regarding the

constitutionality of the death penalty statutes and their

application. The arguments raised by Thomas have been

previously considered and rejected by this Court. Thomas

presents no new arguments sufficient to warrant a change in

our prior holdings:

(1) The penalty phase instructions adequately
instructed the jury on the vileness
aggravating factor and on consideration of
mitigation evidence. 3 Watkins v.
Commonwealth, 229 Va. 469, 490-91, 331 S.E.2d
422, 438 (1985), cert. denied, 475 U.S. 1099
(1986).
(2) Consideration of hearsay evidence by the trial
court in a post-sentencing report is not
unconstitutional. Breard v. Commonwealth, 248

3
We do not address Thomas' arguments that the "future
dangerousness" aggravating factor and the use of unadjudicated
conduct on this point violated his federal and state
constitutional rights because the jury verdict was limited to
a finding of vileness, thereby rendering Thomas' arguments
moot.

7
 Va. 68, 76, 445 S.E.2d 670, 675-76, cert.
denied, 513 U.S. 971 (1994).
(3) The discretion granted a trial court to impose
a sentence of life is constitutional. Goins
v. Commonwealth, 251 Va. 442, 453, 470 S.E.2d
114, 122, cert. denied, 519 U.S. 887 (1996).

IV. BILL OF PARTICULARS

Thomas filed a motion for a bill of particulars asking

that the trial court order the Commonwealth to provide the

following information: (1) the exact date, time and location

of the alleged murder; (2) the aggravating factors upon which

the Commonwealth would rely in seeking the death penalty; (3)

if "vileness" was to be a basis for seeking the death penalty,

the components of that factor upon which the Commonwealth

intended to offer evidence; (4) if "future dangerousness" was

to be a basis for seeking the death penalty, any unadjudicated

allegations of the defendant's misconduct upon which the

Commonwealth intended to offer evidence; and (5)

identification of the evidence upon which the Commonwealth

would rely to support the aggravating factors and all evidence

which the Commonwealth will introduce and rely upon to support

its contention that death is the appropriate punishment. The

Commonwealth responded by providing the information requested

under items 2, 3, and 4, but maintained that it was not

required to provide the remaining information. We agree with

the Commonwealth.

8
 A defendant is not entitled to a bill of particulars as a

matter of right. Quesinberry v. Commonwealth, 241 Va. 364,

372, 402 S.E.2d 218, 223, cert. denied, 502 U.S. 834 (1991).

Code § 19.2-220 requires that the indictment identify the

accused, describe the offense charged and where it occurred,

and recite the date on or about which the offense occurred.

This information was contained in the indictment at issue and

Thomas does not challenge the sufficiency of the indictment.

Accordingly, a bill of particulars was not required as to the

first item requested. Strickler v. Commonwealth, 241 Va. 482,

490, 404 S.E.2d 227, 233, cert. denied, 502 U.S. 994 (1991).

We have previously considered a request for a bill of

particulars in which the defendant sought identification of

evidence identical to that Thomas seeks in item 5 above. In

Quesinberry, we concluded that identification of all evidence

upon which the Commonwealth would rely in support of its

contention that death was an appropriate penalty was not

required because such a request was an improper attempt to

expand the scope of discovery in a criminal case. 241 Va. at

372, 402 S.E.2d at 223. We find nothing in this record to

support a different conclusion in this case.

For the above reasons, we reject this assignment of

error.

V. MOTION TO SUPPRESS

9
 Thomas assigns error to the trial court's denial of his

motion to suppress the evidence obtained pursuant to the

search warrants issued on February 16, 2000. The evidence

obtained included hairs from Thomas' car, samples of his

blood, hair and saliva, a pair of his tennis shoes, and some

of his clothes.

The Affidavit for Search Warrant and the supporting

attachment were executed by Captain Anthony R. Webb of the

Pulaski County Sheriff's Office. The affidavit recited that

Thomas was seen with Tara the afternoon of her disappearance

and that she was killed by gunshot wounds from a .22 caliber

firearm. Included in the affidavit was a statement that "[a]

Commonwealth witness, Kevin Williams, has informed law

enforcement that Thomas had borrowed a .22 caliber Marlin

rifle from him in the fall of 1999" and that although Thomas

"originally denied" that he had a firearm, when told of

Williams' statement, "Thomas admitted that Williams had loaned

him a .22 caliber Marlin rifle." 4

4
The affidavit in its entirety follows:

PROBABLE CAUSE

Jeffrey Allen Thomas, hereafter Thomas, is the
suspect in the homicide of Tara Rose Munsey,
hereafter Munsey. Thomas knew Munsey and her
family. Thomas was seen by several witnesses with
Munsey in the afternoon of her disappearance on the

10
 Thomas first argues that the affidavit was deficient

because the references to a "borrowed" and "loaned" firearm

day she is believed by investigators to have been
killed, which is around or about the 25th day of
January in the year 2000. On that day Thomas was
driving a Gold colored 1991 Nissan Stanza
registered through Virginia's DMV in his, Thomas',
name.

Munsey's body was found in the Parrott area of
Pulaski County. Her jacket was not on her body,
and a T-shirt had been ripped and found a short
distance away from her body. The outside
temperature on January 25, 2000 was below freezing.
Preliminary reports from the Forensic Science lab
indicate Munsey was killed by more than one gunshot
wound produced by a .22 caliber firearm. A shell
casing from a Marlin .22 caliber firearm was found
at the scene. Also, found at the scene is what
appeared to investigators as footwear impressions
appearing to be made by a tennis shoe, located on a
particular piece of Munsey's clothing.

A Commonwealth witness, Kevin Williams, has
informed law enforcement that Thomas had borrowed a
.22 caliber Marlin rifle from him in the fall of
1999. A distinguishing characteristic of this
particular firearm was a gold trigger. Thomas
originally denied on several occasions that he had
a firearm. When confronted with the information
provided by Kevin Williams, Thomas admitted that
Williams had loaned him a .22 caliber Marlin rifle.

Kevin Williams advised investigators that he had
fired the .22 caliber Marlin rifle with a gold
trigger from his porch/deck prior to his having
loaned the firearm to Thomas. Investigators
searched that area and found two shell casings
between two planks of the deck. These shell
casings were turned over to the forensic lab. It
was determined that the shell casings recovered
from the porch/deck of the Williams' residence, and
the shell casing recovered from the crime scene
were fired from the same firearm.

11
were false and misleading. Williams told the police officers

that he had "left" the rifle in Thomas' car and that Thomas

had said he would "take care of it." In his February 10, 2000

interview, Thomas told law enforcement officers that Williams

had left the gun in Thomas' car but that he no longer had it

because he had given it to Leonard M. Dalton, a friend, to

return to Williams.

At an evidentiary hearing on Thomas' motion to suppress,

Captain Webb testified that the affidavit was based upon his

own interview with Williams and reports of other interviews by

officers involved in the investigation. Captain Webb stated

that he believed that the statements he made in the affidavit

were accurate, and that he did not intend to deceive the

magistrate. Major Mike Alderman testified that when he

interviewed Thomas, Thomas stated that Williams had left the

gun in Thomas' car and that Thomas had given the gun to Dalton

to return it to Williams. Alderman testified that he had

informed Captain Webb of Thomas' statement prior to the time

Webb prepared the affidavit.

Following the hearing, the trial court refused to

suppress the evidence, finding that the affidavit "contained

no deliberately false statements, nor was it the product of a

reckless disregard for the truth." Thomas asserts that this

holding was error.

12
 Thomas posits that because neither he nor Kevin Williams

used the words "borrow" or "lend" in their reported interviews

with law enforcement personnel and because Captain Webb knew

they had used no such language in their interviews, Captain

Webb's inclusion of these words in the affidavit constituted

an intentional misrepresentation or reckless disregard for the

truth.

The affidavit, apart from the disputed language,

established that a shell casing found at the scene of the

murder matched a shell casing fired from a gun owned by

Williams. The sentences at issue addressed Thomas' access to

that gun. While the words chosen by Captain Webb to describe

how Thomas came into possession of Williams' gun did not

accurately reflect the specific events leading to Thomas'

possession of the gun as related by Thomas and Williams, the

manner in which Thomas came into possession of the gun was not

material to the fact that Thomas had access to and possession

of the gun within a time period corresponding to the murder of

Tara Munsey. Whether the gun was "borrowed" or "lent" was not

relevant to Thomas' access to nor possession of the gun for

purposes of determining probable cause to issue a search

warrant.

Similarly, Thomas' complaint that he possessed the gun

during a period from December 1999 through January 2000 and

13
not sometime "in the fall" of 1999 as contained in the

affidavit, does not alter the relevant fact of Thomas'

possession of the gun at the time of Tara Munsey's murder.

Therefore, we conclude that there is no reversible error

in the trial court's determination that there were no

"deliberately false statements" in the affidavit and that the

affidavit was not the "product of a reckless disregard for the

truth."

Thomas next asserts that the affidavit was deficient

because it omitted material information known to Captain Webb

which would have defeated a finding of probable cause and

because Webb received substantial portions of the information

in the affidavit from an informant whose reliability was not

adequately established. The record does not show the extent

to which these arguments were before the trial court; however,

neither has merit.

The information Thomas asserts was purposely omitted from

the affidavit was evidence that shell casings from a .22

caliber rifle found at Thomas' former residence did not match

the shell casings found at the scene of the crime or the shell

casings fired from Williams' gun. This information was

significant, Thomas claims, because law enforcement officers

originally believed Williams' gun fired all three sets of

shell casings. However, shell casings unrelated to the crime

14
are irrelevant to the determination that Thomas had access to

the murder weapon and information about other such shell

casings would not have defeated a finding of probable cause.

Finally, according to Thomas, the affidavit cannot

support a finding of probable cause because the affidavit did

not give the magistrate any information concerning the

reliability of the "informant" Kevin Williams. Kevin

Williams, however, was identified in the affidavit and,

therefore, was not a confidential or anonymous informant whose

reliability had to be demonstrated. See, generally, Illinois

v. Gates, 462 U.S. 213 (1983); United States v. Khounsavanh,

113 F.3d 279 (1st Cir. 1997); United States v. Wilhelm, 80

F.3d 116 (4th Cir. 1996); United States v. Lalor, 996 F.2d

1578 (4th Cir. 1993).

Williams' information that Thomas had possession of the

.22 caliber rifle was consistent with the statements of Thomas

himself regarding possession of the rifle. The only other

information provided by Williams was that he had fired the .22

caliber rifle at a place where police found shell casings that

matched those found at the crime scene. There was little

basis for suspecting that Williams' statement that he shot his

gun at his home was unreliable. Finally, Williams' statement

connected him to the murder weapon. Such potentially

incriminating statements are normally considered as enhancing

15
the reliability of the statement. See, e.g., Chandler v.

Commonwealth, 249 Va. 270, 279, 455 S.E.2d 219, 224 (1995).

In summary, we hold that the trial court did not err in

denying Thomas' motion to suppress the evidence because the

affidavit accompanying the request for a search warrant was

sufficient to support a finding of probable cause and did not

contain deliberately misleading or false information, did not

omit information which if included would have defeated a

finding of probable cause, and was not based on information

from a source not shown to be reliable.

VI. MOTION FOR CHANGE OF VENUE

Thomas filed a pretrial motion seeking to change venue

arguing that the "barrage" of publicity surrounding his trial

made it reasonably certain that he could not receive a fair

trial in Pulaski County. In support of his motion, Thomas

produced over 111 articles appearing in the three newspapers

serving the area and video tapes or transcripts of over 188

television reports relating to the crime. 5 At the hearing on

this motion, the trial court commented that Thomas had

"provided the [c]ourt with plenty of material on which the

5
Pulaski County is served by three newspapers: The
Roanoke Times, which serves 17 counties in southwest Virginia
and has a daily circulation of 99,691; The Radford News
Journal, which serves the City of Radford and has a daily
circulation of 10,000; and The Southwest Times, which serves

16
[c]ourt could grant a change [in] venue" but that the motion

was premature. Relying on the presumption that an impartial

jury could be impaneled, the trial court entered an order

taking the motion under advisement pending the court's attempt

to seat a jury.

Over 142 persons were summoned for voir dire which,

although originally scheduled to take three days, lasted five

days and delayed the scheduled start of the trial. To produce

a venire of 29, the trial court questioned 104 persons in

panels of three. Of those questioned, 95% of the potential

jurors and all of the jurors ultimately seated were aware of

the pretrial publicity and knew about the case. While 73

persons were struck for cause, the reasons for the strikes

were varied. The record shows that in a number of instances a

strike for cause was sustained on more than one ground. For

example, more than one potential juror indicated a lack of

impartiality as well as a fixed opinion that the death penalty

should or should not be imposed. Nevertheless, 47 of those

interviewed, or 45%, indicated that they could not be

impartial and 33 of these had a fixed opinion that Thomas was

guilty.

Pulaski County, east Wythe County, the City of Radford, and
west Montgomery County and has a daily circulation of 7,500.

17
 On the fourth day of voir dire, the trial court excused

an individual who earlier had been interviewed and placed on

the venire. During the intervening period, counsel and the

trial court became aware that this individual had lied about

his impartiality and had told a fellow worker that he would

find Thomas guilty and, in his words, he would "fry the

bastard."

Following voir dire, Thomas again moved for a change of

venue. The trial court denied the motion, stating that "the

law seems to indicate that what the court should do in

situations like this is attempt to seat a jury, and if a jury

can be seated or chosen, then that answers the question."

Thomas assigns error to the trial court's denial of his motion

to change venue.

We begin our review by reciting the principles which we

apply when reviewing a challenge to the denial of a motion for

a change of venue in a criminal case. First, there is a

presumption that a defendant will receive a fair trial in the

jurisdiction where the offense occurred and the defendant

bears the burden of overcoming "this presumption by

demonstrating that the feeling of prejudice on the part of the

citizenry is widespread and is such that would 'be reasonably

certain to prevent a fair trial.' " Mueller v. Commonwealth,

244 Va. 386, 398, 422 S.E.2d 380, 388 (1992) (citing Stockton

18
v. Commonwealth, 227 Va. 124, 137, 314 S.E.2d 371, 380

(1984)).

In considering evidence of community prejudice based on

pretrial publicity, widespread knowledge of the case alone is

insufficient to overcome the presumption. Jurors need not be

ignorant of the crime. Irvin v. Dowd, 366 U.S. 717, 722

(1961); Buchanan v. Commonwealth, 238 Va. 389, 406, 384 S.E.2d

757, 767 (1989). In addition to the volume of publicity,

factors identified as relevant in determining the impact of

pretrial publicity on the defendant's ability to obtain a fair

trial are whether the publicity is accurate, temperate, and

non-inflammatory, and the timing of the publicity. Id. at 407,

384 S.E.2d at 769; Greenfield v. Commonwealth, 214 Va. 710,

717, 204 S.E.2d 414, 419-20 (1974). Thus, publication of

matters concerning the crime, the accused's prior criminal

record, and even a confession of the accused, if factually

accurate and non-inflammatory, is not improper and will not

alone support a change of venue. Id., 204 S.E.2d at 420.

A potential juror who has knowledge of the case, even if

such person has formed an opinion about the case, is entitled

to sit on the jury if that opinion can be set aside. Irvin,

366 U.S. at 722-23. But the difficulties that the trial court

encounters when finding jurors who, despite having advanced

knowledge of the case and, perhaps, even preformed opinions,

19
can impartially judge the case are relevant to deciding a

motion to change venue. The ease with which an impartial jury

can be selected is a critical element in determining whether

the prejudice in the community stemming from pretrial publicity

is so wide-spread that the defendant cannot get a fair trial in

that venue. Roach v. Commonwealth, 251 Va. 324, 342, 468

S.E.2d 98, 109 (1996); Mueller, 244 Va. at 398, 422 S.E.2d at

388. Thus, generally it will be necessary for a trial court to

undertake the task of attempting to seat the jury. Coppola v.

Commonwealth, 220 Va. 243, 248, 257 S.E.2d 797, 801 (1979). 6

We now apply these principles to the instant case. As

the trial court acknowledged, the amount of publicity

surrounding this case was significant. While Thomas does not

challenge the accuracy of any of these reports, he does cite

three specific reports that he asserts were intemperate or

inflammatory. In two of these televised interviews Thomas was

described as "obsessive and unbalanced" and the interviewee

stated that the end of Thomas' relationship with his former

girlfriend just before Tara's disappearance, "may have pushed

him over the edge." The interviewee also stated that Thomas

6
There are circumstances in which the pretrial publicity
" 'involves such a probability that prejudice will result that
it is deemed inherently lacking in due process,' " and the
defendant is not required to establish identifiable prejudice.
Wansley v. Commonwealth, 210 Va. 462, 468-69, 171 S.E.2d 678,

20
had a motive to harm Tara Munsey because she was engaged to the

son of Thomas' former girlfriend.

In the other television interview, the reporter

identified a woman who claimed that Thomas "had threatened her

life." The reporter went on to state that "Thomas' temper and

short fuse kept [the woman] in fear of her life. A fear that

isn't completely gone even though Thomas remains behind bars."

Thomas also asserts that there were inaccuracies in some

of the 111 newspaper articles reporting on the crime and trial

that were prejudicial to Thomas. One article reported that a

search warrant for Thomas' person and car led to the discovery

of a .22 caliber Marlin rifle, "which authorities believe was

used in the murder." Similarly one headline stated "Police tie

bullet to murder suspect" when in fact the bullets found could

not be linked to Thomas. Retractions of these statements were

subsequently published.

Certainly the volume of the pretrial publicity was

extensive. The tenor of the publicity went beyond

dispassionate reporting of the events surrounding the crime,

the victim, and the accused, even though it did not declare the

accused guilty or call for his conviction or for a specific

punishment. Compare Irvin, 366 U.S at 725. Further, the

683 (1970) (quoting Estes v. Texas, 381 U.S. 532, 542-43
(1965)).

21
inaccuracies are additional persuasive evidence of the

existence and development of community prejudice against

Thomas.

Even in light of the volume and nature of the pretrial

publicity in this case, the trial court was correct in

proceeding to engage in voir dire. Such publicity was not so

inaccurate, inflammatory or extensive that the trial would be

deemed inherently lacking in due process. Accordingly, the

trial court correctly took the matter under advisement until

the voir dire process. However, when it finally denied the

motion to change venue, the trial court concluded that the only

relevant fact remaining to be considered was that it had

ultimately seated an impartial jury. The record contains no

indication that the trial court considered any other factor

when making its decision to deny the motion to change venue.

This is an improper test.

While this Court has included statements regarding the

impartiality of the jury actually seated when discussing the

relative ease of seating the jury, it is the ease of seating

the jury that is the relevant factor, not the ultimate result

of that process. Never has this Court held the impartiality

of the seated jury to be a factor in considering whether a

motion for a change of venue should be granted, much less

found it dispositive. See, e.g., Mueller , 244 Va. at 398-99,

22
422 S.E.2d at 388-89; Greenfield, 214 Va. at 717, 204 S.E.2d

at 420; Wansley v. Commonwealth, 210 Va. 462, 468, 171 S.E.2d

678, 683 (1970).

This principle is consistent with that announced by the

United States Supreme Court. In Irvin v. Dowd, although a

significant percentage of jurors were struck for cause and had

pre-formed opinions of the defendant's guilt, the trial court

was able to seat a jury that it judged would be impartial.

Irvin, 366 U.S. at 727. The United States Supreme Court

reversed, however, holding that given the difficulty of

impaneling the jury and the evident influence of publicity on

the jury pool, the trial court's finding of impartiality

failed to make it reasonably certain that the defendant would

get a fair trial and, therefore, a change of venue was

necessary. Id. at 727-28.

Measuring the ease of impaneling a jury is an important

tool in considering a request for change of venue. It allows

the trial court to take into account a cross section of the

community so as to understand the pervasiveness of prejudice.

It also allows the trial court to keep in mind that justice

must not only be fair, it must also be above suspicion,

Breeden v. Commonwealth, 217 Va. 297, 298, 227 S.E.2d 734, 735

(1976) (citing Wright v. Commonwealth, 73 Va. (32 Gratt.) 941,

943 (1879)), because the more difficult it is to seat a jury,

23
the more likely it is that the public will believe the

judicial process to be tainted by prejudice. While both

victims and society have an interest in punishing those

individuals who violate our criminal statutes, no one's

interests are served when the process by which a defendant is

found guilty is not above suspicion. The fairness of a

criminal proceeding cannot be sacrificed because of the

"heinousness of the crime charged, the apparent guilt of the

offender or the station in life which [the defendant]

occupies." Irving v. Dowd, 366 U.S. 717, 722 (1961).

Accordingly, we conclude that the trial court erred, as a

matter of law, by failing to apply the proper test and failing

to consider the necessary factors when making its decision to

deny Thomas' motion to change venue. Consequently, because

the trial court used an improper legal standard in exercising

its discretionary function, we are unable to apply the

appellate review standard of abuse of discretion. In light of

this holding, the judgment of conviction must be vacated.

While this disposition eliminates the need for us to address

many of Thomas' remaining assignments of error, we will

address one assignment of error that is likely to arise again

in the event of retrial.

VII. VICTIM IMPACT TESTIMONY

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 In Assignment of Error 33, Thomas asserts the trial court

erred in allowing Ella Buchanan, a cousin of the victim, and

Nicholas Ryan Zaroba, the victim's fiancé, to testify in the

penalty phase of the trial because such testimony violated the

provisions of Code § 19.2-264.4. Thomas failed to object to

the introduction of such testimony until July 9, 2001, four

months after the penalty hearing. The trial court noted that

Thomas failed to comply with the contemporaneous objection

requirement, Rule 5:25, but addressed the matter nevertheless,

concluding that the testimony of these two witnesses did not

violate the provisions of Code § 19.2-264.4. Because the

trial court considered the matter on its merits, we will

address the issue.

Code § 19.2-264.4 allows victims to testify regarding the

impact of the offense upon them. The General Assembly has

defined "victim" to include "a spouse, parent, sibling or

legal guardian" of the murder victim. Code § 19.2-11.01(B).

In Beck v. Commonwealth, 253 Va. 373, 484 S.E.2d 898

(1997), we considered whether the trial court erred in

considering written communications from persons who where not

family members of the victims in conjunction with the

sentencing of the defendant in a capital murder bench trial.

The defendant argued that victim impact evidence in a capital

murder case was limited to persons defined as "victims" by

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Code § 19.2-11.01. We rejected this argument finding that the

statutes at issue, Code §§ 19.2-11.01, -264.5, and -299.1, did

not limit evidence of victim impact to that received from the

victim and family members. The reference to the definition of

"victim" in Code § 19.2-299.1 served only to identify the

individuals whose consent was required for the inclusion of a

victim impact statement in the presentence report prepared in

non-capital cases. Code § 19.2-264.4.

In 1998, subsequent to our decision in Beck, the General

Assembly amended Code § 19.2-264.4 by adding the subsection at

issue in this case, subsection (A1). That subsection

provides:

In any proceeding conducted pursuant to
this section, the court shall permit the
victim, as defined in § 19.2-11.01, upon the
motion of the attorney for the Commonwealth,
and with the consent of the victim, to testify
in the presence of the accused regarding the
impact of the offense upon the victim. The
court shall limit the victim's testimony to the
factors set forth in clauses (i) through (vi)
of subsection A of § 19.2-299.1.

Unlike the statutes considered in Beck, this subsection

specifically limits a "victim" to one meeting the definition

contained in Code § 19.2-11.01 and specifically limits the

testimony of such individuals to those items enumerated in

subsection A of Code § 19.2-299.1. The issue now before us

then is whether the enactment of subsection (A1) of Code

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§ 19.2-264.4 precluded all persons not coming within Code

§ 19.2-11.01's definition of "victim" from testifying in a

capital murder proceeding regarding the crime's impact on

their lives. We conclude that this subsection does not so

limit victim impact testimony in capital cases.

In Beck, we observed that the Victim Witness Rights Act,

Code §§ 19.2-11.01 through -11.4, preserves the victims' right

to have the impact of a crime considered in the sentencing

proceeding. 253 Va. at 384, 484 S.E.2d at 905. However,

prior to 1998, the statutes only addressed this right in terms

of the pre-sentence or written report. See Code §§ 19.2-

11.01(A)(4)(a), -264.5, -299.1. The 1998 General Assembly

added the subsection at issue in this case along with Code

§ 19.2-295.3 and subsection (c) of Code § 19.2-11.01(A)(4). 7

7
Code § 19.2-11.01(A)(4)(c):

On motion of the attorney for the Commonwealth,
victims shall be given the opportunity, pursuant to
§§ 19.2-264.4 and 19.2-295.3, to testify prior to
sentencing of a defendant regarding the impact of
the offense.

Code § 19.2-295.3:

In cases of trial by jury or by the court, upon a
finding that the defendant is guilty of a felony,
the court shall permit the victim, as defined in
§ 19.2-11.01, upon motion of the attorney for the
Commonwealth, to testify in the presence of the
accused regarding the impact of the offense upon
the victim. The court shall limit the victim's
testimony to the factors set forth in clauses (i)

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These amendments specifically addressed testimony by a victim

and preserved the victim's right to present oral testimony.

While the written statements were generally available only to

the judge in the sentencing process, these amendments allowed

the victim testimony to be presented to and considered by the

jury in its sentencing deliberations. This right to testify

is, by statute, restricted to persons meeting the definition

of "victim" in Code § 19.2-11.01.

Nothing in the subsection, however, supports the theory

that other persons who may have relevant victim impact

testimony may not testify. While such persons do not have a

statutorily protected right to testify, their testimony is not

automatically barred by Code § 19.2-264.4(A1). As we said in

Beck, the statutes

do not limit evidence of victim impact to that
received from the victim's family members. Rather,
the circumstances of the individual case will
dictate what evidence will be necessary and
relevant, and from what sources it may be drawn. In
a capital murder trial, as in any other criminal
proceeding, the determination of the admissibility
of relevant evidence is within the sound discretion

through (vi) of subsection A of § 19.2-299.1. In
the case of trial by jury, the court shall permit
the victim to testify at the sentencing hearing
conducted pursuant to § 19.2-295.1 or in the case
of trial by the court, the court shall permit the
victim to testify before the court prior to the
imposition of a sentence. Victim impact testimony
in all capital murder cases shall be admitted in
accordance with § 19.2-264.4.

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 of the trial court subject to the test of abuse of
that discretion.

253 Va. at 384-85, 484 S.E.2d at 905.

Accordingly we reject Thomas' assertion that the trial

court violated Code § 19.2-264.4(A1) when it allowed Buchanan

and Zaroba to testify in the penalty phase of Thomas' capital

murder trial.

Because Thomas does not assign error to the admission of

this testimony on the ground that the testimony was not

relevant, and because the substance of such testimony may be

different in the event of retrial, we need not address Thomas'

arguments regarding the substance of the challenged testimony.

CONCLUSION

For the reasons stated, we will vacate the conviction of

the defendant and remand the case for further proceedings,

should the Commonwealth be so advised, consistent with this

opinion.

Record No. 012253 – Reversed and remanded.
Record No. 012254 – Reversed and remanded.

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