Schmitt v. Commonwealth

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

JOHN YANCEY SCHMITT

v. Record No. 003010 OPINION BY JUSTICE BARBARA MILANO KEENAN
Record No. 010007 June 8, 2001

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge

In these appeals, we review the capital murder conviction

and death sentence imposed on John Yancey Schmitt, along with

his several non-capital convictions.

I. PROCEEDINGS

Schmitt was indicted for capital murder based on the

willful, deliberate, and premeditated killing of Earl Shelton

Dunning during the commission of a robbery, in violation of Code

§ 18.2-31(4). Schmitt also was indicted for armed entry of a

bank with the intent to commit larceny, in violation of Code

§ 18.2-93; two counts of robbery, in violation of Code § 18.2-

58; and three counts of use of a firearm, in violation of Code

§ 18.2-53.1.

In the first stage of a bifurcated trial conducted under

Code § 19.2-264.3, a jury convicted Schmitt of all the offenses

charged. In the penalty phase of the trial, the jury fixed his

punishment for capital murder at death based on a finding of

"future dangerousness," and for the other offenses at
imprisonment for a total of 118 years. The trial court

sentenced Schmitt in accordance with the jury verdict.

We consolidated the automatic review of Schmitt's death

sentence with his appeal of the capital murder conviction. Code

§ 17.1-313(F). We also certified Schmitt's appeal of his

convictions for the non-capital offenses from the Court of

Appeals and consolidated that appeal with his capital murder

appeal. Code § 17.1-409.

II. GUILT PHASE EVIDENCE

We will state the evidence presented at trial in the light

most favorable to the Commonwealth, the prevailing party in the

trial court. Burns v. Commonwealth, 261 Va. 307, 313, 541

S.E.2d 872, 877 (2001); Lovitt v. Commonwealth, 260 Va. 497,

502, 537 S.E.2d 866, 870 (2000). On February 17, 1999, Earl

Shelton Dunning was shot and killed while working as a security

guard at the Bon Air branch of NationsBank (the bank) on Buford

Road in Chesterfield County. About a month before Dunning was

killed, Schmitt had robbed this same bank and, after that

robbery, the bank had hired Dunning to work as a security guard.

Shortly after 1:00 p.m. on February 17, 1999, a man entered

the bank wearing dark sunglasses and a bulky jacket. He kept

his head lowered and appeared to scan the interior of the bank.

Bank manager Sara Parker-Orr testified that she was "nervous"

about this man because he was wearing sunglasses inside the bank

2
on a "really cloudy day." Dunning was outside the bank and,

after the man went inside, Dunning entered the bank and walked

across the lobby to stand at the end of the "teller line" in

which customers were waiting.

The man stood in the teller line behind several customers.

Parker-Orr watched him leave his place in line and walk toward

Dunning. When the man was within "a foot or so" of Dunning,

Parker-Orr heard two gunshots and then heard someone scream,

"[G]et down, get down."

The man next approached Parker-Orr's teller window and

banged on the counter yelling, "Money, give me money," and "[I]f

I don't get money, I'm going to kill everybody." Parker-Orr

opened her cash drawer and threw money into a black plastic bag

that the robber was holding.

The robber continued to bang on the counter demanding "more

money." He announced that he would give the tellers "ten

seconds" to give him more money, and began counting backward

from the number "ten." By the time he reached "nine," teller

Marlene Austin was "throwing money in the bag." Parker-Orr also

gave him money from a third teller's drawer. When she told the

robber that she had no more money to give him, the robber left

the bank.

The bank's security camera system recorded photographs of

Schmitt approaching the end of the teller counter and standing

3
at a teller window holding a bag and pointing a gun. None of

the witnesses who testified at trial saw the actual shooting of

Dunning, and the shooting was not recorded by the bank's

security camera system. However, Parker-Orr, Austin, and Kelli

Konstaitis, another teller, all identified a photograph of

Schmitt recorded by the bank's security camera system as

depicting the man who robbed the bank that day.

After Schmitt left the bank, witnesses telephoned the "911"

emergency response number and attended to Dunning, who was lying

on the floor. By the time emergency medical personnel arrived,

Dunning was dead. The witnesses in the bank testified that they

did not touch or see anyone else touch Dunning's gun or its

holster. Dunning's gun was found in its holster, which was

closed and snapped.

An autopsy revealed that Dunning was killed as a result of

a gunshot wound to his chest. The bullet entered the right side

of Dunning's chest, causing significant injuries to the aorta,

and exited from the right side of his back.

After the murder and robbery, Schmitt registered at a

Williamsburg hotel the same day under the name "R. Napier." The

hotel desk clerk testified that Schmitt asked for directions to

the local shopping areas, and that when Schmitt later returned

to the hotel, his hair was a different color. Schmitt paid cash

for a three-day stay at the hotel.

4
 Captain Karl S. Leonard of the Chesterfield County Police

Department identified Schmitt after reviewing the photographs

taken by the bank's security camera system. Two days after the

murder and robbery, on February 19, 1999, Leonard learned where

Schmitt was staying in Williamsburg. The James City County

Tactical Team surrounded Schmitt's hotel room, and a crisis

negotiator, Lieutenant Diane M. Clarcq of the James City County

Police Department, attempted to persuade Schmitt to surrender.

About 10:30 a.m. the following morning, Schmitt surrendered and

was taken into police custody.

Leonard obtained a search warrant for Schmitt's hotel room,

where a satchel, a handgun, a box of shotgun shells, a black

leather jacket, and a variety of newly purchased clothing items

were seized. Inside the satchel was $27,091 in cash, most of

which still bore "bank bands" identifying the money as coming

from the Bon Air branch of NationsBank.

John H. Willmer, a firearms and tool mark examiner employed

by the Virginia Division of Forensic Science, qualified as an

expert witness on the subject of firearms. Willmer testified

that he examined the handgun found in Schmitt's hotel room and

the cartridge casings and bullets found in the bank. He stated

that based on his examination, the cartridge casings and bullets

had been fired from this handgun. Willmer also tested the

handgun and items of Dunning's clothing to establish the

5
distance of the firearm from Dunning at the time of the

shooting. Based on these tests, Willmer concluded that the

pattern of gunpowder residue found on Dunning's clothing

indicated that when Dunning was shot, the distance between him

and the firearm muzzle was between 12 and 36 inches.

III. PENALTY PHASE EVIDENCE

During the penalty phase of the trial, the Commonwealth

presented evidence of Schmitt's criminal record. Between 1992

and 1996, Schmitt was convicted twice of possession of marijuana

with the intent to distribute, and also had convictions of

receiving stolen property, possession of a firearm by a

convicted felon, and possession of marijuana. Schmitt was on

probation for some of these offenses at the time of the capital

murder and robbery. He had failed to keep the conditions of his

probation requiring him to have regular drug tests and to meet

with his probation officer and, as a result, a capias had been

issued for his arrest prior to both bank robberies.

In the earlier robbery of the bank on January 19, 1999,

Schmitt and another man had stolen over $65,000. Schmitt was

armed with a sawed-off shotgun in that robbery. The

Commonwealth presented evidence that before the first robbery,

police were called to investigate an argument between Schmitt

and a girlfriend involving a shotgun, and that Schmitt had

6
"sawed off" the barrel of the gun the night before the first

bank robbery.

The Commonwealth also presented evidence of a tape

recording of a telephone conversation between Schmitt and a

friend in which Schmitt described the present offenses. In

addition, the Commonwealth introduced evidence of the "drug

dealer lifestyle" that Schmitt had been leading in the months

before he committed the present offenses.

The Commonwealth presented testimony from Dunning's family

and friends concerning the impact of Dunning's murder on them.

Dunning's mother and brother testified that in January 1999, a

month before his murder, Dunning had retired from the United

States Army after over 20 years of service, and that he had

received many commendations honoring his bravery and leadership

while in military service. The Commonwealth also presented

testimony that Dunning had three children and that he had

planned to marry in March 1999. Several bank employees

testified that during the few weeks that Dunning worked at the

bank, he had developed close relationships with his fellow

employees that demonstrated extraordinary thoughtfulness and

generosity.

Schmitt presented testimony from the crisis negotiator,

Lieutenant Clarcq, that Schmitt had expressed remorse over the

killing during the negotiations culminating in his surrender.

7
In addition, Schmitt presented testimony from a medical

specialist dealing with adolescent addiction who testified

generally concerning the effects of drug addiction and

withdrawal. However, this specialist had never treated or

evaluated Schmitt. Schmitt also presented testimony from his

juvenile probation officer, friends, and family members who

described Schmitt as courteous and respectful when he was not

under the influence of drugs.

IV. ISSUES WAIVED OR DEFAULTED

Schmitt raises on appeal the following issues that are

procedurally defaulted from consideration in this Court:

1. Schmitt did not ask the trial court to strike

prospective juror James J. Goodin for cause based on Goodin's

statements concerning the death penalty. Therefore, Schmitt has

waived his objection to the seating of this juror. Rule 5:25. 1

2. Schmitt did not object in the trial court to the

exclusion of prospective jurors Linda Miles and Leo Gibbs based

on their statements expressing objections to the death penalty.

Schmitt also did not argue in the trial court that by excluding

1
Schmitt asserts that his later motion objecting to the
seating of the entire panel was sufficient to preserve this
issue. That motion, however, merely referenced "all the reasons
stated in our objections to particular jurors," and Schmitt had
stated during the voir dire of Goodin that he had no objection
to Goodin serving as a juror. Thus, Schmitt's motion was
insufficient to preserve for appeal any objection to Goodin
serving on the jury.

8
Miles, Gibbs, and others, the court adopted a "pattern of

seating pro-death penalty jurors." Because Schmitt failed to

make these objections in the trial court, he has waived these

issues on appeal. Rule 5:25.

3. Schmitt did not argue in the trial court that the

capital murder charge should be struck on the ground that the

charge encouraged the jury to impose harsher sentences for the

non-capital offenses. Since Schmitt failed to raise this

argument in the trial court, he has waived the issue on appeal.

Rule 5:25.

4. Schmitt filed a pre-trial motion to bar admission

during the penalty phase of the trial of evidence of his

unadjudicated conduct. Prior to the trial, the court reserved

ruling on the motion. During the penalty phase proceedings,

Schmitt did not object to the testimony of several witnesses

concerning Schmitt's unadjudicated conduct. Because Schmitt

failed to object contemporaneously to the admission of this

evidence, Schmitt has waived this objection on appeal. Rule

5:25.

5. Schmitt argues that the trial court erred in allowing

the jury to consider the issue of "future dangerousness." In

the trial court, Schmitt argued that the "future dangerousness"

aggravator is unconstitutionally vague and violates the Sixth,

Eighth, and Fourteenth Amendments. However, on brief, he refers

9
solely to his motion presented to the trial court with regard to

this issue. Schmitt's references to arguments that he made in

the trial court are insufficient and amount to procedural

default of this issue. Burns, 261 Va. at 319, 541 S.E.2d at

881; Hedrick v. Commonwealth, 257 Va. 328, 336, 513 S.E.2d 634,

638, cert. denied, 528 U.S. 952 (1999); Swisher v. Commonwealth,

256 Va. 471, 478, 506 S.E.2d 763, 767 (1998), cert. denied, 528

U.S. 812 (1999).

6. At the conclusion of his brief, Schmitt sets forth an

additional argument "relating to all assignments of error" that

the alleged errors violated his constitutional rights. However,

Schmitt failed to specify in what manner his rights were

violated with respect to each assignment of error.

Consequently, this argument is waived, and we will not consider

it on appeal. See Burns, 261 Va. at 318, 541 S.E.2d at 880;

Kasi v. Commonwealth, 256 Va. 407, 413, 508 S.E.2d 57, 60

(1998), cert. denied, 527 U.S. 1038 (1999) (citing Jenkins v.

Commonwealth, 244 Va. 445, 451, 423 S.E.2d 360, 364 (1992),

cert. denied, 507 U.S. 1036 (1993)).

V. ISSUE PREVIOUSLY DECIDED

Schmitt raises an argument that we have resolved in a

previous decision. Since we find no reason to modify our

previously expressed view, we reaffirm our earlier holding and

reject the following argument:

10
 The trial court erred in admitting "victim impact evidence"

because it is not relevant to the jury's sentencing decision in

a capital murder case. Rejected in Weeks v. Commonwealth, 248

Va. 460, 476, 450 S.E.2d 379, 480 (1994), cert. denied, 516 U.S.

829 (1995) (citing Payne v. Tennessee, 501 U.S. 808, 827

(1991)).

VI. JURY SELECTION

Schmitt argues that the trial court abused its discretion

in refusing to strike certain prospective jurors for cause based

on their alleged biases in favor of the death penalty. Schmitt

also contends that the trial court abused its discretion in

refusing to strike one prospective juror who formerly was

employed as a bank teller. Finally, Schmitt argues that the

court abused its discretion in striking for cause one

prospective juror who stated that her objection to the death

penalty would prevent her from voting to impose it. We disagree

with Schmitt's arguments.

A prospective juror should be excluded for cause based on

the juror's views about the death penalty if those views would

substantially impair or prevent the performance of the juror's

duties in accordance with his oath and the court's instructions.

Barnabei v. Commonwealth, 252 Va. 161, 173, 477 S.E.2d 270, 277

(1996), cert. denied, 520 U.S. 1224 (1997) (citing Wainwright v.

Witt, 469 U.S. 412, 424 (1985)). On appellate review, we give

11
deference to the trial court's determination whether to retain

or exclude a prospective juror because the trial court is able

to see and hear each member of the venire respond to the

questions posed. Thus, the trial court is in a superior

position to determine whether a prospective juror's responses

during voir dire indicate that the prospective juror would be

prevented or impaired in performing the duties of a juror.

Lovitt, 260 Va. at 510, 537 S.E.2d at 875; Vinson v.

Commonwealth, 258 Va. 459, 467, 522 S.E.2d 170, 176 (1999),

cert. denied, 530 U.S. 1218 (2000). A trial court's decision

regarding the selection or exclusion of jurors will be upheld on

appeal unless it is shown that the trial court abused its

discretion. Id.

In conducting our review, we consider a prospective juror's

entire voir dire, rather than isolated statements made by the

prospective juror. Id. In the present case, when prospective

juror Darlene W. Temple was asked, "generally speaking," about

her views on the death penalty, she responded that she was "in

favor" of the death penalty. When asked whether there was "any

particular type of crime in which you think a death penalty

would be appropriate," Temple responded, "[P]remeditated,

brutal, planned, and [sic] I'm going to kill you kind of

murder." In response to a question whether she could fairly

weigh the options of death or life imprisonment even in that

12
category of cases in which she considered the death penalty to

be appropriate, Temple answered in the affirmative.

Similarly, prospective juror William A. Chewning was asked

to assume that a defendant had been convicted of capital murder,

that the Commonwealth had proved "vileness" or "future

dangerousness," or both, and that the jury had "listened to all

the evidence[] [in] mitigation and aggravation." When asked

whether he would "automatically vote for the death penalty"

under these circumstances, Chewning stated, "I think I would,

yes." Chewning was then asked to state his understanding of the

jury's function after finding a defendant guilty of capital

murder. Chewning responded:

[T]he Commonwealth presents you with evidence[]
[whether] they were violent crimes or [whether] he
would be able to in the future commit more violence
and malice. And if you did find it, then the death
penalty should be justified, but if it's not so
strong, the evidence, then you might give him a life
sentence.

In addition, Chewning responded in the affirmative when asked

whether he would be able "to fairly listen to that evidence

before deciding whether to give [a defendant] the death penalty

or a life sentence."

Prospective juror Mary T. Richardson stated that she

previously transferred from a job as a bank teller because she

was afraid to work in a bank that had been robbed several times.

When asked whether this experience would affect her ability to

13
be an impartial juror, Richardson responded, "I can't say that

it will or that it won't," and she later added, "I want to

listen to all the facts before I ma[k]e any decision. But

knowing that, you know, I've had that fear when I worked at a

bank, I might let that sway [me]. I don't know." When asked

whether she could "put aside that bias" and base her decision on

the evidence in this case and on the law as instructed by the

trial court, Richardson responded that she could do so "because

the case would not be about me."

The above responses are illustrative of the entire voir

dire testimony of these prospective jurors, which contains no

indication that the trial court abused its discretion in

accepting their statements that they could fulfill the duties of

jurors in the trial of the case. The responses of prospective

jurors Chewning and Temple indicated that they could consider

both the death penalty and life imprisonment in sentencing a

defendant for capital murder. Prospective juror Richardson

indicated that she could fairly evaluate the evidence, follow

the court's instructions, and not be influenced by her

experience as a bank teller because the present case was not

"about" her. Thus, we conclude that the trial court did not

abuse its discretion in refusing to strike these jurors for

cause.

14
 In contrast, prospective juror Lyn S. Carroll advised the

trial court that she had "moral, religious, or conscientious

objections to voting for the death penalty," and indicated that

she did not think she "could ever vote [for] or consider the

death penalty." Carroll also acknowledged that she could not

foresee any circumstance under which she "would consider voting

for the death penalty." We conclude that the trial court did

not abuse its discretion in striking Carroll from the jury panel

because her responses demonstrated that her personal objections

to the death penalty would have substantially impaired or

prevented her from carrying out her duties as a juror. See

Vinson, 258 Va. at 467, 522 S.E.2d at 176; Barnabei, 252 Va. at

173, 477 S.E.2d at 277; Yeatts v. Commonwealth, 242 Va. 121,

134-35, 410 S.E.2d 254, 262-63 (1991), cert. denied, 503 U.S.

946 (1992).

Schmitt next argues that the trial court erred in limiting

his questioning of prospective jurors during voir dire regarding

their views on the death penalty. In support of his argument,

Schmitt identifies three portions of the voir dire record in

which the trial court limited his attempts to have prospective

jurors respond to hypothetical questions concerning the death

penalty, and contends that he should have been "allowed latitude

in probing the juror's true position."

15
 We find no merit in this argument. In the identified

portions of the voir dire examination, Schmitt improperly asked

the prospective jurors to speculate regarding whether they would

automatically impose a death sentence for certain types of

killings or under certain hypothetical circumstances. These

questions were posed without any reference to the prospective

jurors' ability to consider the evidence and the court's

instructions in deciding whether to impose the death penalty.

In addition, the record demonstrates that the trial court

allowed Schmitt considerable latitude in questioning members of

the venire concerning their beliefs on the death penalty. Thus,

we conclude that the trial court did not abuse its discretion in

restricting Schmitt's questions during voir dire, and that the

questioning allowed by the trial court assured the removal of

those prospective jurors who would automatically impose the

death penalty. See Clagett v. Commonwealth, 252 Va. 79, 89, 472

S.E.2d 263, 269 (1996), cert. denied, 519 U.S. 1122 (1997);

Beavers v. Commonwealth, 245 Va. 268, 277-78, 427 S.E.2d 411,

418, cert. denied, 510 U.S. 859 (1993); Mueller v. Commonwealth,

244 Va. 386, 400-01, 422 S.E.2d 380, 389-90 (1992), cert.

denied, 507 U.S. 1043 (1993).

Schmitt next argues that the trial court improperly asked

leading questions of prospective jurors during voir dire to

"rehabilitate" them and to make them "appear to qualify" for

16
service on the jury, without probing these jurors for their true

opinion or bias. Schmitt contends that the trial court

improperly used these responses to its questions to "offset or

override" other responses elicited by his counsel.

We do not reach the merits of this argument because Schmitt

did not object to any particular question posed by the trial

court to any individual member of the venire. See Rule 5:25.

Instead, he raised only a general objection after 14 potential

jurors had been questioned by the parties and the court, and

again referred to that general objection at the conclusion of

all the voir dire testimony in the case. These general

objections were based on Schmitt's assertion that the trial

court acted "inappropriate[ly]" by asking prospective jurors

whether they could fairly consider both sentencing alternatives,

thereby "hindering [Schmitt's] opportunity to get valid

responses."

Such general objections were insufficient to preserve this

issue for appeal. While a party may state an objection to any

question posed by a trial judge during voir dire, including an

objection that the trial judge improperly has asked a leading

question, the objection must be stated in a timely manner with

reference to the precise question at issue. Therefore, a

defendant may not assert on appeal that the trial judge has

asked improper questions during voir dire unless he first has

17
given the judge a timely opportunity to rule on the merits of

such objections and to take any necessary corrective action.

See Hodges v. Commonwealth, 213 Va. 316, 317-18, 191 S.E.2d 794,

795 (1972).

VII. GUILT PHASE ISSUES

Schmitt argues that the trial court erred in denying his

motions to strike the capital murder charge and that the

evidence was insufficient as a matter of law to support his

conviction on that charge. Schmitt contends that certain

physical evidence supports a reasonable hypothesis that the

shooting occurred during a struggle and was unintentional,

thereby negating the element of premeditation. Schmitt relies

on the evidence of powder residue on Dunning's jacket, the

location of the bullet hole in the jacket, as well as the

evidence of blood on Schmitt's left hand and the location of the

bullet casings "to the left of where the defendant would have

been." We disagree with Schmitt's arguments.

The issue of premeditation is a question to be resolved by

the finder of fact. Bailey v. Commonwealth, 259 Va. 723, 749,

529 S.E.2d 570, 585, cert. denied, ___ U.S. ___, 121 S.Ct. 488

(2000); Weeks, 248 Va. at 477, 450 S.E.2d at 390; Clozza v.

Commonwealth, 228 Va. 124, 134, 321 S.E.2d 273, 279 (1984),

cert. denied, 469 U.S. 1230 (1985). The intent to kill need not

exist for any specific period of time before the actual killing.

18
Id. To establish the element of premeditation, the Commonwealth

need only show that the intent to kill existed for a moment

before the fatal act was committed. Id.

The evidence showed that Schmitt entered the bank armed

with a loaded and concealed weapon. After Dunning came inside

the bank and stood near the end of the teller line, Schmitt left

his place in that line and walked directly to the location where

Dunning was standing. Without saying anything, Schmitt fired

two shots, one of which hit Dunning in the chest. After the

shooting, Schmitt shouted, "get down," and threatened to "kill

everybody" if he did not get some money.

We conclude that this evidence was sufficient to establish

the element of premeditation. Viewed in the light most

favorable to the Commonwealth, the evidence supported a

conclusion that Schmitt intended to kill Dunning from the moment

that Schmitt left his place in the teller line and began to

approach Dunning. At this point, he possessed a concealed,

loaded weapon, which he used to shoot Dunning at close range

within seconds of departing from his place in the teller line.

Schmitt's contrary argument relies largely on speculation,

rather than on reasonable inferences that can be drawn from the

evidence. Moreover, the jury was entitled to reject his view of

the evidence and conclude that he acted with premeditation when

he fired the shot that killed Dunning. Therefore, we conclude

19
that the evidence was sufficient to support the jury's

determination of guilt on the capital murder charge.

Schmitt argues that the trial court erred in refusing to

permit the crisis negotiator, Lieutenant Clarcq, to testify

regarding statements Schmitt made to Clarcq about the robbery

and shooting. These statements included Schmitt's admission

that he robbed the bank and a statement that he did not intend

to kill Dunning but shot him during a struggle. Schmitt

contends that these statements were admissible as a declaration

against his penal interest. We disagree.

Schmitt's statements to Clarcq do not qualify as

declarations against his penal interest. This exception to the

hearsay rule allows out-of-court statements that tend to

incriminate a declarant to be received in evidence upon a

showing that the declaration is reliable and that the declarant

is presently unavailable. Ellison v. Commonwealth, 219 Va. 404,

408, 247 S.E.2d 685, 688 (1978). Underlying this exception is

the presumption that individuals have a strong interest in

protecting themselves and thus do not often make statements that

expose themselves to criminal liability unless those statements

are true. See Newberry v. Commonwealth, 191 Va. 445, 461, 61

S.E.2d 318, 326 (1950); Hines v. Commonwealth, 136 Va. 728, 743-

44, 117 S.E. 843, 847 (1923). When the declarant has made an

incriminating statement that is contrary to his self-interest,

20
this "element of self-interest" functions as "a reasonably safe

substitute for the oath and cross-examination as a guarantee of

truth." Newberry, 191 Va. at 461, 61 S.E.2d at 326 (citing

Hines, 136 Va. at 744, 117 S.E. at 847).

Here, however, the chief portion of the statement that

Schmitt sought to have admitted was a self-serving denial of his

criminal intent on the capital murder charge. 2 Schmitt's

statement that he shot Dunning during a struggle is not contrary

to Schmitt's self-interest but instead promotes the goal of

protecting himself from criminal liability for capital murder.

For this reason, as a threshold matter, the statement is not a

declaration against penal interest. 3 Accordingly, we conclude

that the trial court did not err in refusing Schmitt's request

to admit evidence of these statements made to Lieutenant Clarcq.

Schmitt argues that the trial court erred in refusing his

tendered jury instruction concerning the Commonwealth's alleged

failure to produce as witnesses two bank customers who were

shown in a bank camera photograph standing behind Schmitt in the

2
Schmitt cannot plausibly argue that he was prejudiced by
the trial court's refusal to admit that portion of his statement
to Clarcq that admitted his culpability in the robberies.
Moreover, this portion of his statement to Clarcq was cumulative
evidence of his guilt on the robbery charges. See Harrison v.
Commonwealth, 244 Va. 576, 585, 423 S.E.2d 160, 165 (1992).
3
Based on our disposition of this assignment of error, we
need not address whether Schmitt's declaration was reliable or
whether his decision not to testify made him "unavailable" for
purposes of the hearsay exception on which he relies.

21
teller line. The refused instruction stated that the

Commonwealth's "unexplained" failure to produce these witnesses

raised a presumption that their testimony would be unfavorable

to the Commonwealth.

We find no merit in this argument. The granting of such an

instruction in a criminal case is improper. Russell v.

Commonwealth, 216 Va. 833, 836-37, 223 S.E.2d 877, 879 (1976).

The rationale underlying this rule is plain. The Commonwealth's

burden of proof does not include the duty to produce all

witnesses possibly having some knowledge of a case, and a

criminal defendant need not prove anything or call any witnesses

in his defense. Id.; see Wise v. Commonwealth, 230 Va. 322,

330, 337 S.E.2d 715, 721 (1985), cert. denied, 475 U.S. 1112

(1986); Robinson v. Commonwealth, 207 Va. 66, 69, 147 S.E.2d

730, 732 (1966). Thus, the trial court properly refused the

instruction at issue.

Schmitt argues that the trial court erred in instructing

the jury that "[i]t is permissible to infer that every person

intends the natural and probable consequences of his or her

acts." Schmitt contends that this instruction effectively

created an improper presumption that "negated or diminished the

effect of the presumption of innocence." We disagree with

Schmitt's argument.

22
 This instruction did not establish an improper presumption

but merely stated a permissive inference. Kelly v.

Commonwealth, 8 Va. App. 359, 374, 382 S.E.2d 270, 278 (1989).

Unlike conclusive or burden shifting presumptions regarding a

defendant's criminal intent, which are constitutionally invalid,

the present instruction did not require the jurors to draw any

inference or alter the Commonwealth's burden of proving

Schmitt's criminal intent beyond a reasonable doubt. Id.; see

Connecticut v. Johnson, 460 U.S. 73, 84 (1983); Sandstrom v.

Montana, 442 U.S. 510, 521 (1979).

VIII. SENTENCING PHASE ISSUES

Schmitt argues that the admission into evidence of the tape

recording of the telephone conversation between him and his

friend, Clifford Sauer, violated his Fifth and Sixth Amendment

rights because Sauer acted as a "police agent" during the

conversation. In response, the Commonwealth asserts that

Schmitt's failure to comply with the notice requirements of Code

§ 19.2-266.2 in the trial court bars consideration of this issue

on appeal. We agree with the Commonwealth.

Code § 19.2-266.2 requires that, in the absence of good

cause shown and in the interests of justice, all motions seeking

suppression of evidence based on an alleged violation of the

Fourth, Fifth, or Sixth Amendments be made in writing, not later

than seven days before trial. Schmitt does not dispute that he

23
failed to comply with these statutory requirements, and he does

not argue on appeal that he satisfied the good cause exception

provided in the statute. Since Schmitt has failed to meet these

statutory requirements, he has waived on appeal his argument

regarding the admissibility of the tape recording. See Upchurch

v. Commonwealth, 31 Va. App. 48, 51, 521 S.E.2d 290, 291-92

(1999).

Schmitt argues that the trial court erred in refusing to

admit evidence concerning prison life and the security features

of a "maximum security" prison in the Commonwealth to rebut the

Commonwealth's contention of Schmitt's future dangerousness. He

asserts that in a capital murder sentencing, such evidence is

relevant to the issue whether a defendant will pose a future

threat to society.

We conclude that Schmitt's argument has no merit, given the

sentencing phase evidence presented by the Commonwealth. In

that portion of the trial, the Commonwealth did not present

evidence concerning prison security or the nature of prison

confinement imposed on a defendant who has been convicted of a

capital murder offense. Therefore, Schmitt's proffered evidence

was not admissible to rebut any particular evidence concerning

prison security or prison conditions offered by the

Commonwealth.

24
 In addition, Schmitt's proffered evidence was inadmissible

to rebut the Commonwealth's contention that he would commit

future acts of violence. As we explained in Burns:

[T]he relevant inquiry is not whether [the defendant]
could commit criminal acts of violence in the future
but whether he would. . . . In other words, a
determination of future dangerousness revolves around
an individual defendant and a specific crime.
Evidence regarding the general nature of prison life
in a maximum security facility is not relevant to that
inquiry, even when offered in rebuttal to evidence of
future dangerousness such as that presented in this
case.

261 Va. at 339-40, 541 S.E.2d at 893.

Schmitt also argues that the trial court erred in refusing

three supplemental jury instructions, each of which advised the

jury that a life sentence would be imposed if the jury could not

unanimously agree on a penalty. Schmitt asserts that these

instructions were tendered after "the jury's deliberations

became extended," and contends that the instructions were

correct statements of the law and should have been given at that

stage of the jury's deliberations. We disagree with Schmitt's

arguments.

The trial court properly refused the proffered

instructions. As we have explained in earlier decisions, such

instructions concern a procedural matter that is not an

appropriate subject for a jury instruction. Spencer v.

Commonwealth, 238 Va. 295, 318, 384 S.E.2d 785, 799 (1989),

25
cert. denied, 493 U.S. 1093 (1990) (quoting Justus v.

Commonwealth, 220 Va. 971, 979, 266 S.E.2d 87, 92 (1980), cert.

denied, 455 U.S. 983 (1982)); see also Pruett v. Commonwealth,

232 Va. 266, 279 n.6, 351 S.E.2d 1, 9 n.6 (1986), cert. denied,

482 U.S. 931 (1987). Instructions of this nature also

constitute an open invitation for the jury to avoid its

responsibility and to disagree on the sentence that a capital

murder defendant should receive. Id.; see also Eaton v.

Commonwealth, 240 Va. 236, 257, 397 S.E.2d 385, 398 (1990),

cert. denied, 502 U.S. 824 (1991).

Schmitt next argues that the trial court erred in refusing

to grant a mistrial or to give curative instructions to the jury

based on allegedly inflammatory comments made by the prosecutor

in his closing argument. The prosecutor's comments at issue

concerned: (1) Schmitt's use of a stolen gun when the

Commonwealth earlier had stipulated that the gun was not stolen;

(2) Schmitt's prior "shotgun assault" on his girlfriend; and (3)

the "wonderful life" in prison Schmitt would have were he

sentenced to life imprisonment. Schmitt asserts that the trial

court's failure to take corrective action in this regard denied

him a fair trial and violated his due process rights. We

disagree with Schmitt's arguments.

The record shows that after Schmitt objected to the

Commonwealth's improper reference to his use of a stolen gun,

26
the Commonwealth acknowledged its mistake and the trial court

granted a curative instruction. The court told the jury that

the parties had stipulated that "[t]he weapon was not stolen,

but [that Schmitt] was a convicted felon when he came into

possession of it." When the prosecutor then stated to the jury

that "your recollection of the evidence is what counts in this

case," Schmitt again objected, contending that this argument

effectively suggested that the jury could ignore the trial

court's curative instruction. In response to this objection,

the trial court stated again that there was no evidence that the

gun had been stolen.

We will presume that a jury has followed the trial court's

prompt and explicit curative instructions, unless the record

clearly shows that the jury disregarded the instructions.

Beavers, 245 Va. at 280, 427 S.E.2d at 420; Spencer v.

Commonwealth, 240 Va. 78, 95, 393 S.E.2d 609, 619, cert. denied,

498 U.S. 908 (1990). Here, the trial court promptly gave

explicit curative instructions after Schmitt timely objected to

the prosecutor's remarks, and the record does not show that the

jury disregarded the curative instructions. It is well

established that a judgment will not be reversed for a statement

of counsel that the court promptly directs the jury to disregard

unless there is a manifest probability that the improper

comments were prejudicial to the defendant. Kitze v.

27
Commonwealth, 246 Va. 283, 288, 435 S.E.2d 583, 585 (1993)

(citing Saunders v. Commonwealth, 218 Va. 294, 303, 237 S.E.2d

150, 156 (1977)). We hold that the record fails to show a

manifest probability of prejudice, and we conclude that the

trial court did not abuse its discretion in its response to the

objections raised and in denying Schmitt's motion for a mistrial

related to those objections.

We do not reach the merits of Schmitt's arguments

concerning the trial court's failure to give a curative

instruction or to grant a mistrial regarding the prosecutor's

comment on Schmitt's prior "shotgun assault" on his girlfriend,

and on the "wonderful life" that he would experience in prison.

Schmitt did not make a request for a curative instruction or a

mistrial at the time either of these remarks were made, but

waited until after the jury had retired to place the issues

before the trial court in the form of a motion for a mistrial.

Unless a defendant has made a timely motion for a cautionary

instruction or for a mistrial, we will not consider his

assignments of error alleging that improper remarks were made by

the prosecutor. Sheppard v. Commonwealth, 250 Va. 379, 394-95,

464 S.E.2d 131, 140-41 (1995), cert. denied, 517 U.S. 1110

(1996); Breard v. Commonwealth, 248 Va. 68, 82, 445 S.E.2d 670,

679, cert. denied, 513 U.S. 971 (1994); Cheng v. Commonwealth,

240 Va. 26, 38, 393 S.E.2d 599, 605-06 (1990). A motion for a

28
mistrial is untimely and is properly refused when it is made

after the jury has retired from the courtroom. Breard, 248 Va.

at 82, 445 S.E.2d at 679; Cheng, 240 Va. at 39, 393 S.E.2d at

606.

Schmitt also asserts that the trial court erred in

"allowing" the prosecutor to argue, in support of a death

sentence, that the jury should not "trust the system that can be

so easily manipulated by the defendant." However, we do not

reach the merits of this argument because Schmitt failed to

object to the argument at the time it was made. Rule 5:25.

Also, since Schmitt did not request a mistrial based on this

remark, we do not consider his argument that the trial court

erred in failing to grant a mistrial on this ground. Rule 5:25.

Schmitt next argues that the trial court erred in allowing

the Commonwealth to present evidence regarding the "vileness"

statutory aggravator, and in allowing the jury to consider this

factor. Schmitt contends that the evidence of "vileness" was

insufficient as a matter of law, and that although the jury did

not render its sentence of death based on the "vileness"

predicate, the arguments concerning "vileness" were prejudicial

to the jury's consideration of his "future dangerousness." We

disagree with Schmitt's arguments.

A finding of "future dangerousness" rests upon different

considerations than a finding of "vileness." We will presume

29
that a jury has followed the trial court's instructions setting

forth the separate considerations for determining each

aggravating factor unless the record clearly shows that the jury

disregarded these instructions. See Beavers, 245 Va. at 280,

427 S.E.2d at 420; Spencer, 240 Va. at 95, 393 S.E.2d at 619.

Here, the jury rejected a finding of "vileness" and based

Schmitt's sentence of death solely on the "future dangerousness"

predicate. Schmitt has pointed to nothing in the record

suggesting that the jury failed to follow the trial court's

instructions, and the jury's rejection of the "vileness"

predicate indicates that it considered this aggravating factor

separately as the law requires.

We next consider Schmitt's argument that the evidence is

insufficient to support the jury's finding of "future

dangerousness." Schmitt contends that neither his prior

criminal record nor that record combined with evidence of his

unadjudicated conduct was sufficient to support such a finding.

He asserts that this fact "is particularly true" given that his

"society" for the rest of his life would be a "close custody"

prison. We disagree with Schmitt's arguments.

Under Code § 19.2-264.2, the death penalty may not be

imposed unless the trier of fact finds one or both of the two

aggravating factors that we have referred to as "vileness" and

"future dangerousness." Lovitt, 260 Va. at 516, 537 S.E.2d at

30
878; Roach v. Commonwealth, 251 Va. 324, 347, 468 S.E.2d 98,

111-12, cert. denied, 519 U.S. 951 (1996). In the present case,

the jury found "future dangerousness," meaning "there is a

probability that [Schmitt] would commit criminal acts of

violence that would constitute a continuing serious threat to

society." Code § 19.2-264.2.

We have held that the facts and circumstances surrounding a

capital murder may be sufficient, standing alone, to support a

finding of "future dangerousness." See Lovitt, 260 Va. at 516,

537 S.E.2d at 878; Roach, 251 Va. at 348, 468 S.E.2d. at 112;

Murphy v. Commonwealth, 246 Va. 136, 145, 431 S.E.2d 48, 53,

cert. denied, 510 U.S. 928 (1993). Here, Schmitt murdered

Dunning, an innocent security guard, to facilitate a robbery and

to avoid being apprehended at the robbery scene. The jury was

entitled to find that this violent, premeditated action was

strong evidence that Schmitt is a dangerous person who would

commit future criminal acts of violence.

The jury also was entitled to consider Schmitt's criminal

record. As we have stated, this record includes two convictions

of possession of marijuana with the intent to distribute,

possession of a firearm by a convicted felon, and receiving

stolen property. After being released from confinement in 1997,

Schmitt was placed on probation. Based on his failure to comply

with drug testing requirements and to report to his probation

31
officer, Schmitt was charged with violating his probation and

failed to appear in court to answer those charges. Further,

during the time leading up to the present offenses, Schmitt had

been "working" as a drug dealer.

Significantly, the jury also was allowed to consider the

fact that Schmitt had committed another armed robbery less than

one month prior to the present offense. This evidence, in

addition to evidence of the present crimes, demonstrated that

Schmitt did not refrain from violent criminal behavior, even

after having experienced incarceration and having received the

benefit of probation supervision.

We find no merit in Schmitt's argument that the evidence of

his "future dangerousness" was insufficient because his

"society," after receiving a sentence of life imprisonment for

capital murder, would have been a "close custody" prison. Code

§ 19.2-264 does not limit the jury's consideration to a type of

"prison society," and we will not rewrite the statute to

restrict its scope in that manner. Lovitt, 260 Va. at 517, 537

S.E.2d at 879. Therefore, we conclude that the evidence of the

present offenses and of Schmitt's prior criminal behavior is

sufficient to support the jury's finding of "future

dangerousness."

We next consider Schmitt's argument that the trial court

erred in refusing to instruct the jury on certain "facts" in

32
alleged mitigation of the present offenses. Those "facts"

included a statement that the capital murder was committed while

Schmitt was under the influence of controlled substances, that

Schmitt had shown remorse for his actions, and that a term of

life imprisonment would be served without parole.

We conclude that the trial court properly refused Schmitt's

proposed instruction. Since the trial court separately

instructed the jury that imprisonment for life in this case

excluded the possibility of parole, the portion of the disputed

instruction that also contained this information was

repetitious. See Burns, 261 Va. at 343, 541 S.E.2d at 895; Gray

v. Commonwealth, 233 Va. 313, 351, 356 S.E.2d 157, 178, cert.

denied, 484 U.S. 873 (1987). The remainder of the disputed

instruction was properly refused because a defendant who has

been convicted of capital murder is not entitled to a jury

instruction that emphasizes any particular mitigating factors.

Burns, 261 Va. at 343, 541 S.E.2d at 895; George v.

Commonwealth, 242 Va. 264, 283, 411 S.E.2d 12, 23 (1991), cert.

denied, 503 U.S. 973 (1992).

X. SENTENCE REVIEW

Passion and Prejudice

Under Code § 17.1-313(C), we review the death sentence

imposed on Schmitt to determine whether it (1) was imposed under

the influence of passion, prejudice, or any other arbitrary

33
factor; or (2) is excessive or disproportionate to the penalty

imposed in similar cases, considering both the crime and the

defendant. Schmitt argues that the sentence was based on

passion, prejudice, and arbitrariness because the Commonwealth

improperly was permitted to argue that Schmitt's crime satisfied

the "vileness" aggravating factor in the absence of a sound

legal basis for making that argument. Schmitt also asserts that

no evidence was presented of any prior violent conduct on his

part that resulted in harm to any person, or of him having

caused "the slightest difficulty" during his previous

incarcerations.

In addition, Schmitt contends that the jurors' passions

were improperly inflamed by evidence of his tape-recorded

conversation with Clifford Sauer and by the testimony of

Dunning's family. Schmitt also argues that the prosecutor

engaged in an intentional effort during closing argument to

raise the jurors' passions by making improper comments to

encourage them to vote for the death penalty. We find no merit

in Schmitt's arguments.

First, the jury's rejection of the "vileness" aggravator

demonstrates that the death sentence was not affected by the

prosecutor's argument regarding "vileness." In addition, the

jury fixed sentences of 35 years each on the two charges of

robbery when it could have sentenced Schmitt to life

34
imprisonment for each charge. These sentencing decisions show

that the argument and evidence concerning the "vileness"

aggravator did not inflame the passions of the jury.

Second, since the "victim impact" testimony and Schmitt's

own tape-recorded conversation were properly received as

evidence in the penalty phase of the trial, the jury was

entitled to consider this evidence in making its sentencing

determination. Likewise, Schmitt's criminal record and his

conduct during prior periods of incarceration were also evidence

properly presented to the jury, which was permitted to accord

that evidence whatever weight it deemed proper.

We also conclude that the record fails to demonstrate that

the prosecutor's comments during closing argument resulted in a

death sentence that was imposed under the influence of passion,

prejudice, or any other arbitrary factor. Moreover, based on

our independent review of the record, we find no evidence that

any such impermissible factor was present or influenced the

jury's sentence.

Excessiveness and Proportionality

Schmitt argues that his sentence is excessive and

disproportionate to the penalty imposed in similar cases. He

asserts that only one capital murder defendant in Virginia, the

defendant in Roach, received the death penalty for a murder that

resulted from a single gunshot wound in the absence of torture

35
or other aggravating factor. Schmitt thus contends that juries

have not generally imposed the death penalty for crimes similar

to Schmitt's, but instead generally impose life imprisonment for

such offenses.

In conducting our proportionality review, we do not isolate

our consideration to any particular prior case, but must

determine whether "other sentencing bodies in this jurisdiction

generally impose the supreme penalty for comparable or similar

crimes, considering both the crime and the defendant." Lovitt,

260 Va. at 518, 537 S.E.2d at 880; Johnson v. Commonwealth, 259

Va. 654, 683, 529 S.E.2d 769, 786, cert. denied, ___ U.S. ___,

121 S.Ct. 432 (2000) (quoting Jenkins, 244 Va. at 461, 423

S.E.2d at 371). Thus, we reject Schmitt's invitation to focus

solely on the method in which the murder was accomplished in

this case, because to do so would ignore our statutory mandate

to conduct our review with full consideration of both the crime

and the defendant. See Code § 17.1-313(C)(2).

We have compared the record in the present case with the

records of other capital murder cases, including those in which

a sentence of life imprisonment was imposed. We also have

examined the records of all capital cases reviewed by this Court

pursuant to Code § 17.1-313(E). Since the jury imposed the

death sentence based on the "future dangerousness" predicate, we

36
give particular consideration to other capital murder cases in

which the death penalty was obtained under that predicate.

We observe that juries in this Commonwealth, with some

exceptions, generally have imposed the death sentence for

convictions of capital murder based on a finding of "future

dangerousness" in which the underlying qualifying crime was

robbery. See, e.g., Lovitt, 260 Va. 497, 537 S.E.2d 866; Orbe

v. Commonwealth, 258 Va. 390, 519 S.E.2d 808 (1999), cert.

denied, 529 U.S. 1113 (2000); Roach, 251 Va. 324, 468 S.E.2d 98;

Chandler v. Commonwealth, 249 Va. 270, 455 S.E.2d 219, cert.

denied, 516 U.S. 889 (1995); Joseph v. Commonwealth, 249 Va. 78,

452 S.E.2d 862, cert. denied, 516 U.S. 876 (1995); Swann, 247

Va. 222, 441 S.E.2d 195; Chichester v. Commonwealth, 248 Va.

311, 448 S.E.2d 638 (1994), cert. denied, 513 U.S. 1166 (1995);

Dubois v. Commonwealth, 246 Va. 260, 435 S.E.2d 636 (1993),

cert. denied, 511 U.S. 1012 (1994); Yeatts, 242 Va. 121, 410

S.E.2d 254; Savino v. Commonwealth, 239 Va. 534, 391 S.E.2d 276,

cert. denied, 498 U.S. 882 (1990); Mackall v. Commonwealth, 236

Va. 240, 372 S.E.2d 759 (1988), cert. denied, 492 U.S. 925

(1989); Townes v. Commonwealth, 234 Va. 307, 362 S.E.2d 650

(1987), cert. denied, 485 U.S. 971 (1988). Based on this

review, we hold that Schmitt's death sentence is neither

excessive nor disproportionate to penalties imposed by other

37
sentencing bodies in the Commonwealth for comparable crimes,

considering both the crime and the defendant.

IX. CONCLUSION

We find no reversible error in the judgments of the trial

court. Having reviewed Schmitt's death sentence pursuant to

Code § 17.1-313, we decline to commute the sentence of death.

Accordingly, we will affirm the trial court's judgments.

Record No. 003010 — Affirmed.
Record No. 010007 — Affirmed.

38