Burns v. Com.

Present: Carrico, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ.

WILLIAM JOSEPH BURNS
OPINION BY
v. Record Nos. 001879 & 001880 JUSTICE CYNTHIA D. KINSER
March 2, 2001
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY
Dennis Lee Hupp, Judge

A jury convicted William Joseph Burns of the capital

murder of Tersey Elizabeth Cooley in the commission of rape

and/or forcible sodomy in violation of Code § 18.2-31,

statutory burglary in violation of Code § 18.2-90, rape in

violation of Code § 18.2-61, and forcible sodomy (anal

intercourse) in violation of Code § 18.2-67.1. 1 At the

conclusion of the penalty phase of a bifurcated trial, the

jury recommended that Burns be sentenced to death on the

capital murder conviction, finding that “there is a

probability that [Burns] would commit criminal acts of

violence that would constitute a continuing serious threat to

society” and that his conduct in committing the offense was

“outrageously or wantonly vile, horrible or inhuman in that

it involved torture, depravity of mind or aggravated battery

to the victim beyond the minimum necessary to accomplish the

act of murder.” The jury also sentenced Burns to 18 years on
the statutory burglary conviction, and to life imprisonment

on each of the convictions for rape and forcible sodomy.

After reviewing the post-sentence report required by Code

§ 19.2-264.5, the trial court sentenced the defendant in

accordance with the jury verdicts.

Burns appealed his non-capital convictions to the Court

of Appeals pursuant to Code § 17.1-406. We certified that

appeal (Record No. 001880) to this Court under the provisions

of Code § 17.1-409 for consolidation with the defendant’s

appeal of his capital murder conviction (Record No. 001879)

and the sentence review mandated by Code § 17.1-313. After

considering Burns’ assignments of error, the record, and

argument of counsel, we find no error and will affirm the

judgments of the circuit court.

I. FACTS

Applying familiar principles of appellate review, we

will recite the evidence presented at trial in the light most

favorable to the Commonwealth, the prevailing party before
2
the circuit court. Johnson v. Commonwealth, 259 Va. 654,

662, 529 S.E.2d 769, 773, cert. denied, ___ U.S. ___, 121

______________________
1
The jury found Burns not guilty of forcible sodomy
(fellatio). The circuit court granted Burns’ motion to
strike the evidence with regard to a charge of robbery.
2
Some of the facts and material proceedings will be
summarized when addressing specific assignments of error.

2
S.Ct. 432 (2000); Walker v. Commonwealth, 258 Va. 54, 60, 515

S.E.2d 565, 568 (1999), cert. denied, 528 U.S. 1125 (2000).

We also accord that evidence all inferences fairly deducible

from it. Horton v. Commonwealth, 255 Va. 606, 608, 499

S.E.2d 258, 259 (1998) (citing Higginbotham v. Commonwealth,

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

A. GUILT PHASE

During the day on September 20, 1998, Burns was drinking

heavily at his trailer in Baker, West Virginia. He resided

there with his wife, Penny Marlene Cooley Burns, and her two

sons. Apparently some home repairs were not going well, and

Burns became increasingly angry with his wife. Because Burns

had previously assaulted and battered Penny on several

occasions when he was drinking, she became concerned for her

safety and decided to leave their residence. She had left

Burns once before when he was drinking. On that occasion,

Penny went to her mother's house in Edinburg, Virginia, and

stayed there a few days before returning home. 3

When Penny left her home on September 20th, she did not

go to her mother’s home. Instead, she took a circuitous

route unfamiliar to Burns to the home of her friends, Amanda

3
Penny’s mother was Tersey Elizabeth Cooley, the victim
in this case.

3
and Leonard Funkhouser. 4 On the way to their house, Penny

stopped several times to telephone her mother. Penny wanted

her mother to know that Penny had left Burns and would be

staying at the Funkhousers’ house. Penny also wanted to warn

her mother not to let Burns into Cooley’s home if he came

there. 5 However, Penny was never able to reach her mother,

even after she arrived at the Funkhousers’ residence.

Around midnight, Burns showed up at the Funkhousers’

house and asked Penny to go home with him. She refused.

Burns then left but returned about an hour later. He

remained outside the Funkhousers’ home in his car until the

next morning. When the Funkhousers left for work that

morning, they did not want to leave Penny alone in their

home. So, Leonard took Penny to work with him. At Leonard’s

suggestion, Penny then went on a commercial truck run to Ohio

and Pennsylvania with a friend of Leonard’s. While in

Pennsylvania, Penny learned about her mother’s murder during

a telephone conversation with Penny’s son.

Around noon on September 21, 1998, Penny’s sister, Linda

Yvonne Heres, went to the home of her 73-year old mother.

4
The Funkhousers lived in Fort Valley, Virginia, which
is about a 45-minute drive from Cooley’s house in Edinburg.
5
According to Penny, when she left Burns the first time,
he threatened to kill her or her mother if she ever left him
again.

4
When Linda arrived at Cooley’s home, she discovered that the

screen on the kitchen door had been pushed in, and she later

realized that a window pane in the kitchen door had been

broken. After Linda entered the house, she yelled for her

mother but heard no response. Linda then proceeded into her

mother’s bedroom and found her mother’s unclothed, dead body

lying on the floor. 6 Cooley’s face was partially covered by a

mattress that had been pulled from the bed, and her lower

dentures were lying on the floor about four feet from her

jaw. The bedroom was in disarray, and the bedclothes were

scattered around the room.

Frances Patricia Field, Assistant Chief Medical Examiner

for the Northern Virginia District Medical Examiner’s Office,

performed an autopsy on Cooley’s body. Dr. Field reported

that Cooley had “multiple injuries about the head,” including

abrasions and bruises on the right forehead; beside the right

eyebrow; on the white part of the eyeball; on the right and

left jaw lines; on the neck; and on the right cheek, chin,

and mouth. Cooley also had large bruises on her upper chest

and lower neck. Cooley’s inner lips were likewise bruised,

and Dr. Field testified that the injuries to Cooley’s gums

and lips were consistent with her dentures having been in

______________________
6
Cooley had on only a bra when Linda found her body.

5
place at the time of the assault. Finally, Cooley sustained

24 fractures to her ribs.

Dr. Field determined that the cause of death was “blunt

force trauma to [Cooley’s] chest, with rupture of the heart”

and compression of the neck. There was also a tearing of

Cooley’s pericardium, causing blood to spill out of the heart

into the chest cavity. Dr. Field opined that a broken rib

probably had punctured the heart, although direct force

applied to the chest might have ruptured the heart. Because

bleeding is rapid when the heart is ruptured, Dr. Field

concluded that death occurred within two to three minutes

after Cooley’s heart ruptured.

After Linda found her mother’s body, she called “911.”

Soon thereafter, the police and rescue squad arrived at the

scene. Larry W. Green, Sheriff of Shenandoah County,

subsequently decided to set up a “traffic-canvassing detail”

to ascertain if any drivers had traveled through the area

where Cooley’s house was located between approximately 7:00

p.m. on September 20th and 11:30 a.m. on September 21st. As

Sheriff Green was moving a flare on the roadway south of the

Cooley residence, a vehicle approached him. Sheriff Green

testified that he “was in the center of the road, walking

with the flare, and, of course, that stopped the car, and

[he] approached the driver’s side.” Burns was operating that

6
vehicle. After Burns stopped and before Sheriff Green could

say anything, Burns asked, “What’s going on? That’s my

mother-in-law’s house.” Upon realizing that Burns was a

relative of the decedent, Sheriff Green asked him to speak

with Garlan Gochenour, a lieutenant with the Shenandoah

County Sheriff’s Office, who would explain what had happened.

Burns then walked over to a nearby police cruiser and

got into the right front seat as Gochenour got into the left

front seat. Gochenour informed Burns about Cooley’s death

and then advised Burns of his Miranda rights. Burns told

Gochenour that he had not been in the victim’s house within

the last five days or within the last year. However, Burns

admitted that he had driven by Cooley’s home on September

21st between 1:00 a.m. and 1:30 a.m., but insisted that he

had merely turned around in the driveway and then proceeded

to the Funkhouser residence.

Upon realizing that Burns had been at the crime scene

during the approximate time when the murder occurred,

Gochenour asked Burns to go to the sheriff’s department to be

fingerprinted. Burns agreed and drove his own vehicle to the

sheriff’s department, where he later was fingerprinted.

While at the sheriff’s office, Gochenour again advised Burns

of his Miranda rights, and during subsequent questioning,

Burns stated that he had been at a gas station near Cooley’s

7
residence at approximately 2:52 a.m. and again at

approximately 6:35 a.m. on September 21st. In fact, Burns

subsequently produced receipts for items that he had

purchased at the station, and explained that he kept the

receipts because he was on probation and needed to account

for every place that he went. Gochenour also talked with

Burns about a Physical Evidence Recovery Kit (PERK Kit), and

Burns agreed to go to the hospital so that samples of his

hair and bodily fluids could be obtained for the PERK Kit.

Gochenour and John Thomas, an investigator with the

Shenandoah County Sheriff’s Office, accompanied Burns to the

hospital, where the samples were taken.

On September 26th, Burns returned to the sheriff’s

office. After advising Burns of his Miranda rights,

Gochenour interviewed him again. This time, Burns admitted

that he was in the victim’s home on the night of the murder.

Burns stated that, when he entered the house, he encountered

a black male who had already murdered Cooley. According to

Burns, he killed that man and disposed of the body because

Burns did not want his wife to find out that a black man had

raped and murdered her mother. Burns further stated that, in

order to advance his cover-up, he cleaned Cooley’s vaginal

area with soap and water, masturbated, digitally inserted his

semen into Cooley’s vagina, and “smeared it on the bed.”

8
However, Burns specifically denied inserting his semen into

the victim’s anus. At the conclusion of this interview,

Burns was arrested.

At Burns’ request, Gochenour again spoke with him on

September 27th. After Gochenour informed Burns of his

Miranda rights, Burns admitted that he had not encountered an

unidentified black man at Cooley’s house on the night of her

murder. Instead, Burns admitted that he broke into Cooley’s

house by putting his hand through the screen and then

breaking a window pane in the door. However, Burns insisted

that Cooley was already dead when he broke in. Burns stated

that, because he thought his wife, Penny, had murdered her

mother, he decided that he wanted “the crime to lead to

[him].” So, he masturbated and digitally inserted his semen

into the victim.

Karolyn Leclaire Tontarski, a forensic scientist

employed by the Commonwealth of Virginia Department of

Criminal Justice Services Division of Forensic Science,

analyzed the physical evidence collected from Burns, Cooley,

and the crime scene. Tontarski reported the presence of

spermatozoa on vaginal and anal smears taken from the victim.

Based upon DNA typing results, Tontarski testified that the

sperm fraction found in the vaginal swab was 1.6 million

times more likely to have come from Burns than from any other

9
randomly chosen Caucasian individual, 100 million times more

likely in the Black population, and 18 million times more

likely in the Hispanic population. According to Tontarski,

the sperm fraction in the anal swab was 8.7 million times

more likely to have originated from Burns than from any other

randomly selected Caucasian individual, 540 million times

more likely in the Black population, and 86 million times

more likely in the Hispanic population. Tontarski also found

sperm cells on a sheet and pillowcase recovered from the

bedroom where Cooley’s body was discovered, on Cooley’s lower

denture found on the floor of the bedroom, on a washcloth

found under Cooley’s left thigh, and on several items

recovered from Cooley’s bathroom.

B. PENALTY PHASE

At the penalty phase of the trial, the Commonwealth

presented evidence primarily with regard to the issue of

Burns’ future dangerousness. To establish that predicate,

the Commonwealth introduced Burns’ prior convictions for

felony theft, breaking and entering, malicious destruction of

property, resisting arrest, battery, assault, disorderly

conduct, and a third-degree sex offense.

In addition, Hazel Buckley, Burns’ ex-girlfriend,

testified that Burns had anally raped her nine times during a

two-week period. Buckley stated that she did not report

10
those incidents to the police because Burns had threatened

her and her daughter.

Burns offered evidence in mitigation of his offense.

Members of his family testified regarding the abuse that

Burns suffered as a child, primarily from his father who was

an alcoholic. They also indicated that Burns did not do well

in school. A former inmate testified that Burns had been a

“peacemaker” when they were in jail together. Similarly, a

shift supervisor at the Shenandoah County Jail testified that

Burns was respectful and that Burns had never become violent

during his incarceration there.

II. ANALYSIS

A. ASSIGNMENTS OF ERROR WAIVED OR DEFAULTED

Burns filed 46 separate assignments of error, which he

has reduced to 26 questions presented on appeal. However,

Burns failed to brief several of his assignments of error.

Consequently, they are waived, and we will not consider them

on appeal. 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)). 7

7
Burns failed to brief the following assignments of
error:
No. 2: trial court erred in denying defendant’s motion
to make ex parte applications to the court;

11
______________________
No. 4: trial court erred in denying defendant’s motion
for the appointment of a DNA expert, forensic pathologist,
and forensic scientist;
No. 5: trial court erred in appointing a mental health
expert under Code § 19.2-264.3:1 rather than under Ake v.
Oklahoma, 470 U.S. 68 (1985);
No. 6: trial court erred in denying defendant’s motion
for a bill of particulars regarding the aggravating factors
on which the Commonwealth intended to rely in the penalty
phase of the trial;
No. 14: trial court erred in denying defendant’s motion
for additional peremptory strikes;
No. 15: trial court erred in denying defendant’s motion
for individual, sequestered voir dire;
No. 21(c-h): trial court erred in failing to strike for
cause jurors Buchanon, Dellinger, Kruska, Kisamore, Showman,
and Lin;
No. 26: trial court erred in refusing to declare a
mistrial based on questions the court asked Penny Burns
concerning threats made by defendant;
No. 30: trial court erred in denying defendant’s motion
for a mistrial based on the hearsay testimony of Pam Cooley
concerning a threat made by defendant to kill Penny Burns;
No. 31: trial court erred in limiting cross examination
of the forensic scientist, Tontarski;
No. 33: trial court erred in admitting into evidence
testimony from Dr. Field that her findings were consistent
with intercourse in the vagina and anus;
No. 34: trial court erred in instructing the jurors that
they “may infer that a person intends the natural and
probable consequences of his acts,” as contained in
Instruction No. 6;
No. 35: trial court erred in allowing members of the
victim’s family to remain in the courtroom during closing
argument at the guilt phase even though several of those
family members were called as witnesses during the penalty
phase; and,
No. 36: trial court erred in denying defendant’s motion
for a mistrial when the Commonwealth’s Attorney, during
closing argument, misstated Instruction No. 6 by saying that
it created a “presumption” and by arguing that defendant was
a future danger during the guilt phase.
Burns’ attempt to save these assignments of error by
relying on his arguments contained in the record does not
cure his waiver. See Jenkins v. Commonwealth, 244 Va. 445,

12
 Similarly in his first assignment of error, Burns

challenges the constitutionality of the Virginia capital

murder statute. However, on brief, he relied solely on his

memorandum presented to the circuit court with regard to this

issue. Burns’ reference to argument that he made in the

circuit court “is insufficient and amounts to procedural

default.” Jenkins, 244 Va. at 461, 423 S.E.2d at 370.

B. GUILT PHASE

1. INDICTMENT

Burns contends that the circuit court erred by failing

to quash the capital murder indictment on the basis that he

was denied a preliminary hearing and the indictment was

multiplicious. When Burns was arrested on September 26,

1998, he was charged with first degree murder. However,

after he was indicted by a grand jury on two counts of

capital murder, an order of nolle prosequi was entered with

regard to the first degree murder charge. So, Burns never

had a preliminary hearing. He now claims that he was

entitled to that hearing pursuant to Code § 19.2-218 because

both the capital murder and first degree murder charges arose

out of the same circumstances. He also argues that the

______________________
461, 423 S.E.2d 360, 370 (1992), cert. denied, 507 U.S. 1036
(1993).

13
Commonwealth’s failure to afford him a preliminary hearing

deprived him of substantive and due process rights.

In pertinent part, Code § 19.2-218 provides that “[n]o

person who is arrested on a charge of felony shall be denied

a preliminary hearing.” As the Commonwealth correctly notes,

this provision does not apply to the present situation.

Burns was not arrested on the charges of capital murder; he

was arrested on the charge of first degree murder. The

capital murder charges were brought by a direct indictment.

“[T]his Court has consistently held that a preliminary

examination of one accused of committing a felony is not

necessary where an indictment has been found against him by a

grand jury.” Webb v. Commonwealth, 204 Va. 24, 30-31, 129

S.E.2d 22, 27 (1963); accord Waye v. Commonwealth, 219 Va.

683, 689, 251 S.E.2d 202, 206, cert. denied, 442 U.S. 924

(1979). Thus, the procedure used to indict Burns, without

affording him a preliminary hearing, did not violate any of

his statutory rights. 8 Id.

8
There is no constitutional right to a preliminary
hearing. Ashby v. Cox, 344 F. Supp. 759, 763 (W.D. Va.
1972).
To the extent that Burns suggests that he was entitled
to a preliminary hearing on the charge of first degree
murder, that issue is moot. A nolle prosequi order was
entered on that charge, and Burns was tried and convicted on
the indictment.

14
 Burns also contends that the indictment was

multiplicious because he was charged in one count with three

separate offenses of capital murder. Thus, according to

Burns, the indictment was confusing and caused a

“multiplication of issues.”

The original indictment contained two counts charging

Burns with the commission of capital murder. The first count

alleged that he committed capital murder in the commission of

robbery, and the second count alleged that he committed

capital murder in the commission of, or subsequent to, rape

or object sexual penetration. The Commonwealth amended the

first count to allege that Burns “did unlawfully,

feloniously, willfully, deliberately, and with premeditation

kill and murder Tersey Elizabeth Cooley, in the commission of

robbery or forcible sodomy or rape . . . .” 9 The defendant

voiced no objection to that amendment. The Commonwealth then

asked that the amendment say “and/or” rather than just “or.”

When the court asked the defendant if he objected to the new

wording, his counsel responded, “if I have an objection to

it, I will file it at a later date.” The court then stated

that it would allow the amendment, and the defendant’s

counsel replied, “I will object to it, subject to me

9
At the same time, the Commonwealth moved the circuit
court to “nol-pross” the second count.

15
submitting a motion on that. If I do not submit a motion,

then I will waive the objection.”

In a subsequent order dated October 20, 1999, the court

granted “the motion over the objection of the Defendant, but

the Defendant will waive this objection unless he files his

written objection stating his grounds therefore within two

(2) weeks of this date.” Burns never filed the referenced

objection within the allotted time, but on January 25, 2000,

he moved for leave to challenge the amendment and to dismiss

the indictment on the ground that it is multiplicious. The

Commonwealth asserts on brief that the motion was never ruled

on by the circuit court and that Burns’ multiplicity claim is

therefore waived. The Commonwealth is wrong. After a

hearing during which Burns argued his motion, the court

denied the motion in an order dated February 4, 2000, and

noted the defendant’s objection.

However, we agree with the circuit court that the

indictment, as amended, contained only one charge of capital

murder and merely provided alternative “gradation”

offenses. 10 Graham v. Commonwealth, 250 Va. 487, 491, 464

______________________
10
Since the circuit court struck the evidence on the
robbery charge, neither that offense nor the offense of
capital murder in the commission of robbery was before the
jury. Burns was convicted under Code § 18.2-31(5), which

16
S.E.2d 128, 130 (1995). The indictment did not contain more

than one charge in a single count. See Webb, 204 Va. at 32,

129 S.E.2d at 28. The amended indictment also clearly

notified Burns of the offense for which he was charged.

Thus, the circuit court did not err in denying Burns’ motion

to dismiss the indictment on the basis of multiplicity.

2. SUPPRESSION OF EVIDENCE

Burns argues that the circuit court erred by denying his

motion to suppress evidence. That motion included all his

statements to law enforcement officers; physical evidence,

including DNA testing results, seized from his person and

residence; and all documents obtained from him. Burns

contends that the roadblock was unconstitutional; that his

statements were not voluntarily made and thus violated his

rights under Miranda v. Arizona, 384 U.S. 436 (1966); that

his fingerprints, hair, and samples of bodily fluids were not

voluntarily provided; and that search warrants issued for his

personal property at the Shenandoah County Jail and his

residence were based on misleading information. We will

address each of these grounds separately.

a. ROADBLOCK

______________________
proscribes, in relevant part, capital murder in the
commission of rape or forcible sodomy.

17
 Burns asserts that the roadblock that Sheriff Green set

up on the evening of September 21st did not pass

constitutional muster because the roadblock was established

at the sole discretion of law enforcement officers at the

crime scene, there was no plan regarding the particular time

and place of the roadblock, and there were no neutral

criteria for carrying out the roadblock. The Commonwealth

disagrees and contends that Burns’ argument is flawed because

Burns voluntarily stopped his vehicle before he reached the

roadblock rather than actually being stopped at the

roadblock. Alternatively, the Commonwealth argues that, if

Burns was stopped, the roadblock satisfied the three-prong

test enunciated in Brown v. Texas, 443 U.S. 47 (1979), as

adopted by this Court in Lowe v. Commonwealth, 230 Va. 346,

337 S.E.2d 273 (1985), cert. denied, 475 U.S. 1084 (1986).

While we believe that the circumstances under which Burns

stopped his vehicle as he approached the roadblock was a

“stop” and thus a “seizure” under the Fourth Amendment, see

id. at 349, 337 S.E.2d at 275, we agree with the Commonwealth

that the roadblock did not violate Burns’ constitutional

rights.

The constitutional legitimacy of a roadblock, such as

the one in this case, is determined by weighing “(1) the

gravity of the public concerns served by the seizure, (2) the

18
degree to which the seizure advances the public interest, and

(3) the severity of the interference with individual

liberty.” Id. at 350, 337 S.E.2d at 276. A roadblock is not

an unconstitutional infringement on an individual’s privacy

if it is “carried out pursuant to a plan or practice which is

explicit, contains neutral criteria, and limits the conduct

of the officers undertaking the roadblock.” Simmons v.

Commonwealth, 238 Va. 200, 203, 380 S.E.2d 656, 658 (1989).

The roadblock at issue satisfies these requirements.

Sheriff Green decided to establish the roadblock because a

brutal homicide had been recently committed in the area of

the roadblock, and because law enforcement officials did not

know the identity of the perpetrator or whether that person

was still in the area. According to Sheriff Green, the

purpose of the roadblock was to “canvas drivers who were

passing through the area, to see whether they had seen

anything or heard anything” during the time period when the

crime had probably been committed the previous day.

Certainly, the fact that a murder had occurred was a matter

of grave public concern, and the roadblock advanced that

concern by aiding in the investigation of the crime.

Additionally, Sheriff Green chose the location of the

roadblock and directed that it be conducted between the hours

of 7:00 p.m. on September 21st until approximately 11:30 a.m.

19
on September 22nd because he believed that the crime had been

committed between those hours on September 20th-21st. He

also directed that all vehicles be stopped and that the

operators be asked “if they were through that section during

those times, and if they were, did they see anything of a

suspicious nature in or around [the victim’s house].” If the

drivers inquired about what had happened, they were to be

told only that an incident had occurred; they were not to

receive specific information about the crime. Thus, the

roadblock was carried out pursuant to an explicit plan that

contained neutral criteria, and limited the discretion and

conduct of the law enforcement officers actually stopping

vehicles at the roadblock.

However, our analysis of this issue does not end here.

Recently, the Supreme Court of the United States considered

the constitutional propriety of a highway checkpoint program

whose primary purpose was to discover and interdict illegal

narcotics. Indianapolis v. Edmond, ___ U.S. ___, ___, 121

S.Ct. 447, 450 (2000). After discussing several of its prior

decisions, see e.g., Michigan Dept. of State Police v. Sitz,

496 U.S. 444 (1990); United States v. Martinez-Fuerte, 428

U.S. 543 (1976); Delaware v. Prouse, 440 U.S. 648 (1979), the

Court stated that “each of the checkpoint programs that we

have approved was designed primarily to serve purposes

20
closely related to the problems of policing the border or the

necessity of ensuring roadway safety.” Edmond, ___ U.S. at

___, 121 S.Ct. at 454. Thus, the Court concluded that the

narcotics checkpoint program contravened the Fourth Amendment

because its purpose was “to uncover evidence of ordinary

criminal wrongdoing.” Id. In reaching this conclusion, the

Court “decline[d] to suspend the usual requirement of

individualized suspicion where the police seek to employ a

checkpoint primarily for the ordinary enterprise of

investigating crimes.” Id. at 455. However, the Court

recognized that “there are circumstances that may justify a

law enforcement checkpoint where the primary purpose would

otherwise, but for some emergency, relate to ordinary crime

control.” Id.

The primary purpose of the roadblock that Sheriff Green

established obviously was not related to policing the

borders or ensuring road safety. Nor was its purpose simply

to investigate ordinary criminal wrongdoing as was the

checkpoint in Edmond. Instead, the roadblock in this case

was specifically designed to investigate a particular murder

that had recently occurred in the area where the roadblock

was placed. When Sheriff Green decided to set up the

roadblock, the perpetrator’s identity and whereabouts

remained unknown. Law enforcement officers were not stopping

21
vehicles merely to discover evidence of crimes in general.

Thus, we conclude that the roadblock in this case falls

within the exigent circumstances recognized by the Supreme

Court in Edmond and that it, therefore, did not contravene

the Fourth Amendment. 11

b. STATEMENTS AND PHYSICAL EVIDENCE

Burns contends that the circuit court erred by failing

to suppress his statements given to law enforcement officers

on September 21st, 26th, and 27th. He raises specific

objections with regard to each statement, so we will consider

them separately.

Commencing with the September 21st statement, Burns

claims that Gochenour provided only a “cursory rendition” of

Burns’ Miranda rights. Therefore, the record, according to

Burns, does not show that he sufficiently understood those

rights to enable him to make a voluntary and intelligent

waiver of them. We do not agree.

11
Even if the roadblock violated Burns' Fourth Amendment
rights, we believe that any connection between the roadblock
and the statements and physical evidence obtained from Burns
was entirely dissipated. See Wong Sun v. United States, 371
U.S. 471, 491 (1963); Warlick v. Commonwealth, 215 Va. 263,
266, 208 S.E.2d 746, 748 (1974). As will be discussed in
subsequent sections of this opinion, Burns was not in custody
when he voluntarily spoke with Gochenour at the site of the
roadblock. Nevertheless, Gochenour advised Burns of his
Miranda rights. Burns subsequently agreed to go to the
sheriff’s department and hospital.

22
 “Miranda warnings are required only where there has been

such a restriction on a person’s freedom as to render him ‘in

custody.’ ” Oregon v. Mathiason, 429 U.S. 492, 495 (1977);

accord Bailey v. Commonwealth, 259 Va. 723, 745, 529 S.E.2d

570, 583, cert. denied, ___ U.S. ___, 121 S.Ct. 488 (2000).

As the circuit court correctly determined, Burns was not “in

custody” when he talked with Gochenour on the evening of

September 21st. 12 After Burns stopped at the roadblock and

asked Sheriff Green what was going on, Burns voluntarily got

into a police vehicle and talked with Gochenour. Burns

subsequently agreed to go to the sheriff’s office to be

fingerprinted. Even then, he traveled there in his own

vehicle, which is certainly not an indicia of being “in

custody.” After arriving at the sheriff’s office, Burns was

taken into an office that contained several desks and a

computer. It was not an interview room or a cell, and the

office was not locked. Thus, even though Gochenour advised

Burns of his Miranda rights both at the roadblock and again

upon arriving at the sheriff’s office, we conclude that Burns

was not in custody at either time. Consequently, he has no

basis upon which to allege that the statements obtained on

September 21st violated his Fifth Amendment rights.

12
The circuit court also concluded that Miranda rights
were given to Burns and that he made a voluntary and knowing

23
 We reach the same conclusion with regard to Burns’

September 26th statement. Although Burns argues that he was

not advised of his Miranda rights before he made this

particular statement, the evidence before the circuit court

reflects that Burns again was not in custody when he made

that statement. Burns had previously agreed to provide some

receipts to Gochenour in order to document Burns’ activities

on the night of the murder. On September 26th, Burns and

Gochenour talked by telephone, and Burns agreed to bring

those receipts to the sheriff’s office that evening around

8:00 p.m. After he arrived, Gochneour again read Miranda

rights to Burns, and Burns then signed a written waiver

acknowledging that he understood those rights and that he

wished to talk to the law enforcement officers. During the

subsequent interview, Burns admitted that he had been in

Cooley’s residence on the night of her murder and claimed

that he had killed an unidentified black male whom he had

encountered there. Near the end of the interview, Burns

requested an attorney, and the interview was terminated.

Burns then asked to use a restroom, after which Gochenour

arrested him. Thus, Burns voluntarily came to the sheriff’s

office that evening and was never in custody until after he

made the statement.

______________________
waiver of those rights on September 21st.

24
 After the interview on September 26th ended, Gochenour

told Burns that, if he wanted to talk to anyone again, he

could inform a jailer of that desire. According to

Gochenour, he received such a call from a jailer on September

27th. After returning to the jail, Gochenour first advised

Burns of his Miranda rights and then asked Burns if he had

requested to speak with Gochenour. The transcript of that

taped interview reflects that Burns responded affirmatively

to that question.

Nevertheless, Burns contends that, when he contacted the

jailer on September 27th, he did not intend to subject

himself to further interrogation by a police officer.

Relying on McNeil v. Wisconsin, 501 U.S. 171 (1991), Burns

argues that, once he asserted his right to counsel, he could

not be approached for further interrogation until counsel was

available to him. We do not agree with Burns’ argument.

As the circuit court concluded, Burns initiated contact

with Gochenour on September 27th. “If ‘the accused, not the

police, [reopens] the dialogue with the authorities’, a

court, upon consideration of that fact and ‘the totality of

the circumstances’, may reasonably find that the accused has

made a ‘knowing and intelligent’ waiver of his rights.”

Harrison v. Commonwealth, 244 Va. 576, 583, 423 S.E.2d 160,

164 (1992) (quoting Edwards v. Arizona, 451 U.S. 477, 486 n.9

25
(1981)). Here, the totality of the circumstances, including

the fact that Burns requested to speak with Gochenour and

that Gochenour re-advised Burns of his Miranda rights before

even inquiring whether Burns had made such a request, support

the circuit court’s conclusion that Burns’ September 27th

statement was “knowingly and intelligently and voluntarily

made.”

In addition to these specific objections to each of his

statements, Burns also asserts three additional reasons why

none of his statements “were voluntary in the constitutional

sense.” First, he claims that his intellectual functioning,

psychological problems, recent use of alcohol, and mental and

physical condition rendered him incapable of voluntarily

making the statements. Next, he argues that Gochenour “used

the prospect of the defendant seeing his wife” as a means of

pressuring Burns to the point that his ability to function

was critically impaired. Finally, Burns claims that

Gochenour repeatedly asked him to submit to a polygraph

examination, thus subjecting Burns to increased pressure.

Again, the record supports the circuit court’s

conclusion that all of Burns’ statements were made knowingly,

voluntarily, and intelligently. Although Burns was declared

incompetent to stand trial at one point before the trial

commenced, his competency was restored, and there is no

26
evidence that he was suffering from depression or was

incompetent when he made the statements to Gochenour. His

ability to understand and act voluntarily is further

reflected by the fact that he requested an attorney at one

point during the interview on September 26th. In short, the

totality of the circumstances demonstrates that Burns’

statements were “ ‘the product[s] of an essentially free and

unconstrained choice by [their] maker.’ ” Gray v.

Commonwealth, 233 Va. 313, 324, 356 S.E.2d 157, 163, cert.

denied, 484 U.S. 873 (1987) (quoting Schneckloth v.

Bustamonte, 412 U.S. 218, 225 (1973)); accord Yeatts v.

Commonwealth, 242 Va. 121, 132, 410 S.E.2d 254, 261 (1991),

cert. denied, 503 U.S. 946 (1992).

Burns makes the same argument that his fingerprints,

hair, and samples of bodily fluids were taken in violation of

his constitutional rights. He claims that he did not execute

a written consent or waiver, and that his oral consent to be

fingerprinted and to provide hair and bodily fluids for the

PERK Kit was not “voluntarily, intelligently or freely

given.” For the reasons that we have already enunciated, we

do not agree. We have also recognized that consent to a body

search may be oral as well as written. Coleman v.

Commonwealth, 226 Va. 31, 49, 307 S.E.2d 864, 874 (1983),

cert. denied, 465 U.S. 1109 (1984).

27
 Furthermore, according to Gochenour, Burns asked several

questions about how the bodily fluids would be obtained.

Those inquiries evidence Burns’ understanding of the PERK Kit

and what he was being asked to do. Gochenour also testified

that, while Burns was waiting at the hospital, Burns stated

that his stomach was hurting and that he would have to leave

and come back later if the medical personnel did not hurry.

When Burns went into the examination room at the

hospital, Thomas accompanied him into that room. Thomas

testified that, when the medical personnel asked Burns to

remove his underwear, Burns stated that he did not know that

his underwear would be taken. At that point, Thomas advised

Burns, “Well, you know, if you don’t want to do this, you

don’t have to, we can stop now.” According to Thomas, Burns

indicated that he wanted to go ahead and get it over. Thus,

the circuit court did not err in refusing to suppress the

results of the tests conducted on Burns’ fingerprints, hair,

and samples of bodily fluids.

c. SEARCH WARRANTS

Citing Franks v. Delaware, 438 U.S. 154 (1978), Burns

argues that the search warrants issued for his personal

property at the jail and for his residence were based on

misleading information and that, therefore, any evidence

seized as a result of those searches must be suppressed. In

28
the affidavit to obtain the warrants, Thomas included Burns’

admission that he had committed a sexual assault against

Cooley, but failed to mention Burns’ statements in which he

denied any criminal involvement in Cooley’s murder and

claimed that he was attempting to cover up the murder to

protect another individual.

This argument has no merit. We agree with the circuit

court that Burns’ admission regarding the sexual assault

established probable cause for issuance of the search

warrants. Burns offered no evidence at the suppression

hearing to show either an intention to deceive the magistrate

or a reckless omission of relevant information. A police

officer’s mere negligence “in checking or recording the facts

relevant to a probable-cause determination” is not enough to

necessitate further inquiry. Id. at 170; see also United

States v. Colkley, 899 F.2d 297, 300 (4th Cir. 1990).

3. EXAMINATION OF INVESTIGATORS UNDER OATH

Prior to trial, Burns moved to examine law enforcement

officials under oath to determine whether such officials had

disclosed all exculpatory evidence to the Commonwealth’s

Attorney. The circuit court denied the motion but directed

the Commonwealth’s Attorney to explain the meaning of

exculpatory evidence to the police officers and ask whether

29
all exculpatory evidence had been given to the Commonwealth’s

Attorney.

Burns now claims that “the problem of police-concealed

exculpatory evidence is pervasive . . . throughout the

country” and that the court’s failure to grant Burns’ motion

“impinged on [Burns’] constitutional right to effective

assistance of counsel.” He also asserts the court’s ruling

violated his Fourteenth Amendment right to a fair trial and

due process of law. This argument is without merit.

First, to the extent that Burns raises an ineffective

assistance of counsel claim, such a claim is not cognizable

on direct appeal. Johnson, 259 Va. at 675, 529 S.E.2d at

781. Second, Burns has offered no authority for the

proposition that he should have been allowed to examine the

police investigators under oath merely to determine whether

they had turned over all exculpatory evidence to the

Commonwealth’s Attorney. In Kyles v. Whitley, 514 U.S. 419,

437 (1995), the Supreme Court of the United States recognized

that it is “the individual prosecutor [who] has a duty to

learn of any favorable evidence known to the others acting on

the government’s behalf in the case, including the police.”

Finally, Burns admitted that the Commonwealth’s Attorney had

disclosed all exculpatory evidence in his possession, and the

30
circuit court directed the prosecutor to ensure that the

investigators had provided all such evidence.

4. JURY SELECTION

With regard to jury selection, Burns first claims that

the trial court erred by precluding him from asking questions

during voir dire to ascertain potential jurors’ “true

feelings” about the death penalty. Both parties submitted a

list of proposed voir dire questions to the circuit court,

and the court asked some, but not all, of those questions.

During Burns’ voir dire of the jurors, his counsel asked

whether any of them had “any particularly strong feelings for

or against the death penalty.” The court sustained an

objection to the question because it was not asked in

response to a juror’s specific answer to any previous

question.

The circuit court did not err in disallowing this

particular voir dire question. We stated in Mackall v.

Commonwealth, 236 Va. 240, 251, 372 S.E.2d 759, 766 (1988),

cert. denied, 492 U.S. 925 (1989), that “either party may

require prospective jurors to state clearly that whatever

view they have of the death penalty will not prevent or

substantially impair their performance as jurors in the

conformity with their oath and the court’s instructions.”

However, we held “that a party may [not] inquire what

31
prospective jurors’ views of the death penalty might be.”

Id. Furthermore, here, as in Mackall, the circuit court

repeatedly asked potential jurors such questions as whether

they would automatically impose the death penalty and whether

they would consider voting for a sentence less than death,

that is, life without parole, depending on the evidence. The

court’s questions assured “ ‘the removal of those [potential

jurors] who would invariably impose capital punishment.’ ”

Mueller v. Commonwealth, 244 Va. 386, 400-01, 422 S.E.2d 380,

390 (1992), cert. denied, 507 U.S. 1043 (1993) (quoting

Turner v. Commonwealth, 221 Va. 513, 523, 273 S.E.2d 36, 42-

43 (1980), cert. denied, 451 U.S. 1011 (1981)).

Burns also challenges the circuit court’s decision to

strike juror Trina H. Bailey for cause and its refusal to

strike juror Emma M. Smith for cause. Concerning juror

Bailey, Burns argues that she was improperly struck because

she expressed some doubt about the death penalty. However,

the record shows that the circuit court granted the

Commonwealth’s motion to strike this juror because she

indicated that she would hold the Commonwealth to a higher

burden of proof than is required by law because the death

penalty was at issue in the case. Burns moved to strike

juror Smith because she stated, “if [the defendant] did it, I

feel like that he should get [the death penalty],” and also

32
because her son was a jailer at the Shenandoah County Jail.

However, Smith stated that she had not discussed the case

with her son, and, in response to several questions, she

indicated that she could listen to the evidence and determine

the appropriate punishment. When asked if it would be

difficult for her to vote for life imprisonment if she found

Burns guilty of capital murder, Smith answered, “Not really,

no.”

Upon considering the entire voir dire of both jurors at

issue, see Mackall, 236 Va. at 252, 372 S.E.2d at 767,

(“entire voir dire examination must be considered”), we find

no error in the circuit court’s decisions regarding those

jurors. The circuit court heard those jurors’ responses and

observed their demeanor. Therefore, its findings are

entitled to great weight and will not be reversed on appeal

absent a “showing of manifest error or abuse of discretion.”

Id. No such showing has been made in this case.

5. PHOTOGRAPHIC EVIDENCE

Burns asserts that the trial court erred in admitting

into evidence certain photographs of the victim’s body,

specifically Exhibit Numbers 141, 142, 143, and 146. He also

challenges the court’s decision to admit into evidence all

the autopsy photographs of the victim. In Burns’ limited

33
argument on this issue, he merely asserts that these

photographs were prejudicial and cumulative.

We have repeatedly held that the admission of

photographic evidence rests within the sound discretion of

the trial court. See Hedrick v. Commonwealth, 257 Va. 328,

338, 513 S.E.2d 634, 639, cert. denied, 528 U.S. 952 (1999);

Walton v. Commonwealth, 256 Va. 85, 91-92, 501 S.E.2d 134,

138, cert. denied, 525 U.S. 1046 (1998); Goins v.

Commonwealth, 251 Va. 442, 459, 470 S.E.2d 114, 126, cert.

denied, 519 U.S. 887 (1996). We have examined all the

photographs admitted into evidence and conclude that the

circuit court did not abuse its discretion.

6. TRANSCRIPT OF VIDEOTAPED CONVERSATION

On September 20th, Burns went to the home of his friend,

Hazel Buckley, between 10:30 p.m. and 11:00 p.m. While he

was there, Burns, according to Buckley, told her that “[h]e

had done something really bad.” Buckley testified that Burns

then stated that he would need to account for his whereabouts

from about 7:30 p.m. until 12:00 p.m. that evening. Buckley

later contacted the police and agreed to assist in the

investigation of Cooley’s murder by allowing a subsequently

arranged meeting between her and Burns to be videotaped.

At trial, the Commonwealth played the videotape of the

meeting for the jury and, over Burns’ objection, provided the

34
jury with a transcript of the conversation between Buckley

and Burns as the tape was played. On appeal, Burns argues

that the circuit court erred in allowing the jury to use the

transcript because it “contained numerous ‘inaudible’

references and numerous gaps.” Burns also claims that the

transcript highlighted portions of the conversation that were

prejudicial to him.

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

refer to a transcript, the accuracy of which is established,

as an aid to understanding a recording.” Fisher v.

Commonwealth, 236 Va. 403, 413, 374 S.E.2d 46, 52 (1988),

cert. denied, 490 U.S. 1028 (1989). Burns has not challenged

the accuracy of the transcript, only its completeness. That

fact, coupled with the lengthy cautionary instruction that

the circuit court gave the jury regarding the portions of the

transcript that indicated the videotape was inaudible and

advising the jurors to decide for themselves what was being

said, persuade us that the court did not abuse its discretion

in allowing the jury to use the transcript.

7. TESTIMONY REGARDING COOLEY’S POWER OF ATTORNEY

During cross-examination of Penny’s sister, Linda, Burns

attempted to elicit testimony regarding why Cooley revoked

her power of attorney naming Penny as Cooley’s attorney-in-

fact. The court sustained the Commonwealth’s objection.

35
However, the court allowed cross-examination to establish

“that there was a new power of attorney, a revocation, and it

was at the request of Mrs. Cooley.” Later, during his case-

in-chief, Burns called Kermit L. Racey, Cooley’s attorney,

and attempted to ask Racey why Cooley had revoked her power

of attorney. The court again sustained the Commonwealth’s

objection. Burns later proffered Racey’s testimony that

there were two reasons why Cooley revoked her power of

attorney. The first reason was because Penny lived too far

away to take care of her mother’s needs, and the second one

was the fact that a judgment had been entered against Cooley

on a promissory note that Penny had signed by using her

mother’s power of attorney. The proceeds of the loan

evidenced by the note were for Penny’s benefit.

On appeal, Burns contends that the excluded evidence

should have been admitted to show that Penny had a motive to

murder her mother. However, the jury heard evidence from

Linda and Racey that Cooley had revoked the power of

attorney. Burns also introduced into evidence a notice that

a judgment entered against “PENNY M. COOLEY & TERSEY COOLEY

(PENNY COOLEY (BURNS) POWER OF ATTORNEY FOR TERSEY)” in West

Virginia had been docketed in Shenandoah County. Thus, we

conclude that, if there was error in excluding the reasons

36
why Cooley revoked the power of attorney, it was clearly

harmless.

8. TESTIMONY CONCERNING BURNS’ PROBATION
STATUS AND PRIOR ACTS OF VIOLENCE

Prior to trial, Burns filed a motion in limine to

exclude, during the guilt phase of his trial, references to

his probation status and to other offenses contained in his

statements to law enforcement officials. He specifically

objected to that portion of his statement to Gochenour where

Burns stated that he had to keep good records, including

receipts, because he was on probation. Burns also objected

to the statement, attributed to him by Buckley, that he had

done something “worse than his drug runs, and it was worse

than anything he had done.” With regard to each statement,

the Commonwealth argued that its probative value outweighed

any prejudice to the defendant. The circuit court agreed,

and so do we.

Burns referenced his probation status in an effort to

create an alibi for himself on the night of Cooley’s murder.

Similarly, his comment to Buckley reflects his awareness of

the seriousness of the crime he had committed and the reason

he needed her help to establish an alibi. “The

responsibility for balancing the competing considerations of

probative value and prejudice rests in the sound discretion

37
of the trial court. The exercise of that discretion will not

be disturbed on appeal in the absence of a clear abuse.”

Spencer v. Commonwealth, 240 Va. 78, 90, 393 S.E.2d 609, 617,

cert. denied, 498 U.S. 908 (1990) (citing Coe v.

Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986)).

We find no abuse of that discretion with regard to this

issue.

Burns also argues that the court erred in allowing into

evidence his wife’s testimony concerning prior episodes of

violence and threatening conduct, and Burns’ tendency to

become sexually aggressive when he consumed alcohol.

However, the court allowed the evidence only for the purpose

of showing why Penny left her residence on September 20th.

Furthermore, the jury heard the court’s ruling in open court,

and Burns did not request the court to give the jury a more

explicit cautionary instruction. See Cheng v. Commonwealth,

240 Va. 26, 40, 393 S.E.2d 599, 607 (1990). Thus, we find no

error in the court’s admission of this testimony. Its

probative value to explain why Penny left her home on

September 20th and took a circuitous route to a friend’s

house outweighed any prejudice to the defendant.

9. MARITAL COMMUNICATIONS

While incarcerated awaiting trial, Burns wrote several

letters to his wife. Those letters contained incriminating

38
statements by Burns and differing versions of the events

surrounding Cooley’s murder. Penny turned the letters over

to Thomas, who had the letters examined by a handwriting

expert. That examination revealed that Burns had written the

letters.

Relying on Code § 8.01-398, Burns filed a motion in

limine to exclude the letters from evidence. The circuit

court concluded that “[t]he statute does not prevent a third

party who is in possession of the letters, and has gained

that possession lawfully, from testifying.” Therefore, the

court denied Burns’ motion, and the letters were introduced

into evidence during the trial through the testimony of

Thomas. Penny did not testify about the letters.

On appeal, Burns contends that the privilege created in

Code § 8.01-398 is separate and distinct from the privilege

granted in Code § 19.2-271.2, and that the former privilege

applies in any case irrespective of whether the spouse of an

accused testifies. According to Burns, the court’s ruling

eviscerates the marital privilege and renders it meaningless

with regard to written communications. We do not agree.

Code § 8.01-398(A) provides:

Husband and wife shall be competent witnesses to
testify for or against each other in all civil actions;
provided that neither husband nor wife shall, without
the consent of the other, be examined in any action as
to any communication privately made by one to the other

39
 while married, nor shall either be permitted, without
such consent, to reveal in testimony after the marriage
relation ceases any such communication made while the
marriage subsisted.

As Burns argues, we have construed the privilege embodied in

this statute broadly to include “all information or knowledge

privately imparted and made known by one spouse to the other

by virtue of and in consequence of the marital relation

through conduct, acts, signs, and spoken or written words.”

Menefee v. Commonwealth, 189 Va. 900, 912, 55 S.E.2d 9, 22

(1949). However, the plain words utilized in this statutory

provision limit the privilege to situations where a spouse is

being examined in an action or is revealing a private

communication through testimony. When a statute does not

contain an express definition of a term, we infer the intent

of the legislature from the plain meaning of the words used.

City of Virginia Beach v. Flippen, 251 Va. 358, 362, 467

S.E.2d 471, 473 (1996). Consequently, since Penny did not

testify about the letters or their content, Code § 8.01-

398(A) does not apply to the present situation. Thus, the

circuit court did not err in admitting Burns’ letters into

evidence through the testimony of a law enforcement officer.

10. COMPETENCY EVALUATION DURING TRIAL

On the second day of trial during the playing of the

audio-tape of Burns’ September 26th statement, Burns’ counsel

40
moved, pursuant to Code § 19.2-169.1, to have the defendant

evaluated for his competency to stand trial. 13 At that time,

Burns’ counsel proffered to the court that Burns had advised

his counsel that he did not want to participate anymore, and

wanted to leave the courtroom and return to the jail. After

hearing argument of both counsel, the court questioned Burns

about his wish to leave the courtroom. Burns repeatedly said

that he did not want to remain in the courtroom even though

the court advised Burns about the importance of his presence

at his trial. The court then decided to recess for about one

hour and twenty minutes.

After the recess, Burns returned to the courtroom. His

counsel proffered that Burns had expressed his willingness to

remain in the courtroom throughout the proceedings but that

Burns had indicated that he was having difficulty

understanding what was transpiring. Burns’ counsel then

moved again for an evaluation under Code § 19.2-169.1. In

doing so, counsel quoted from Dr. Stejskal’s June 10, 1999

13
Prior to trial, the circuit court found Burns
incompetent to stand trial based on an evaluation conducted
by Dr. William J. Stejskal, a licensed clinical psychologist.
Consequently, the court directed that Burns be committed on
an inpatient basis for further evaluation and for treatment
to restore his competency. Approximately four months later,
the court, after hearing evidence and argument, found that
Burns’ competency had been restored.

41
report, in which Dr. Stejskal stated that Burns’ “capacity to

assist in his own defense is marginally intact.”

Before ruling on the motion for a competency evaluation,

the court called the jail nurse, Bonnie Sager, to testify as

a witness. Sager explained the medications that had been

prescribed to treat Burns’ anxiety and depression, and to

help him sleep. She further stated that she had given Burns

his medicine at noon that day and that the jail records

indicated that Burns had been receiving his medications.

Finally, Sager described Burns as having occasional mood

changes when he became angry.

The court then denied the motion and made the following

relevant findings:

On June 23rd, 1999, I determined that [Burns]
competency had been restored, based on the opinion of
Dr. Stejskal and the psychologist from Central State
. . . .

Now, while the psychologist from Central State did
agree that Mr. Burns suffered from depression and did
need medication, she had also found, during the course
of the treatment, that he was malingering—that is,
acting—for a period of time. . . . [T]here are letters
from Mr. Burns, or at least one letter, where he admits
to acting.

I also note that Dr. Stejskal was appointed to be
the Defendant’s mental-health expert, and the Defendant
has already given notice that he does not intend to use
him in mitigation. Now, there can be a lot of reasons
for that, but again, it would indicate to me that this
problem that we are experiencing today, while it might
have some background, is fairly sudden.

42
 He has prescribed medication. Dr. Stejskal
suggested that, in order for him to be competent to
stand trial, he must be given medication, as needed and
as prescribed. We have evidence from the jail nurse
that he is being furnished all of his medications, as
prescribed.

Mr. Burns' conduct in this trial, until this
morning, until his statement, his audio statement to Mr.
Gochenour was being played, was alert and attentive, he
participated. I saw him, numerous times, talking with
Counsel during voir dire. Certainly, he took notes at
other times. During the course of this trial, he has
taken notes and has interacted with Counsel, all of
those things that I would expect him to do as the
Defendant in this case.

He did get upset, visibly upset, as the statement
was being played, and there could be a whole number of
reasons for that. It was obviously stressful to him at
the time, he was emotional, at times, when giving the
statement, and that stress may now be recalled. It may
be that, hearing his statement today, he perceives it as
being harmful to his case, and that could be a
depressing event to anybody. And, perhaps, hearing the
statement, and playing it, may bring this whole episode,
and that, too, may be upsetting to him.

Now, during the pendency of this case, Mr. Burns
has written me a number of letters in chambers, all of
which I have shared with Counsel. I am now making this
part of this record, for this purpose: because I think
those letters indicate that he does understand the
proceedings against him. Many of the letters were
challenging the officers’ statements, as to what he told
them and how he was treated, which is exactly the
statements being played here today. And as I say, there
are a number of things covered in the letters, but, by
and large, it would indicate to me that he did indeed
understand the proceedings against him, and understood
just how important his own statements may be in the case
against him.

Earlier today, when I was asking him questions on
the record, his responses were inaudible, not
necessarily nonsensical. The bits and pieces that I

43
 could understand were responsive to my questions. All
told, though, they were simply inaudible.

The other thing I think is worthy of note that the
attorneys have advised the Court, and Mr. Burns has
advised the Court, that he has made the request, several
times, not to be present at the trial. So his request
earlier today is consistent with a request made
pretrial, when there was no immediate question as to his
competency.

Code § 19.2-169.1 provides, in pertinent part, that

“[i]f . . . the court finds, upon hearing evidence or

representations of counsel for the defendant or the attorney

for the Commonwealth, that there is probable cause to believe

that the defendant lacks substantial capacity to understand

the proceedings against him or to assist his attorney in his

own defense, the court shall order that a competency

evaluation be performed . . . .” Upon our review of the

record, we do not find probable cause to believe that Burns’

mental state deteriorated to the point that he was no longer

competent to stand trial. The jail nurse indicated that

Burns had been receiving his medications, and until the tape

of his September 26th statement was played for the jury, he

had actively interacted with his counsel during the

proceedings. As the circuit court observed, it is entirely

understandable that Burns would become upset upon hearing his

statement to Gochenour. Also notable is the fact that Burns

had apparently expressed a desire to his counsel, even before

44
the tape was played, not to be present at his trial. Thus,

we conclude that the circuit court did not err in refusing to

order a competency evaluation during the trial of this case.

11. SUFFICIENCY OF THE EVIDENCE

Burns argues that the evidence is insufficient to

sustain the jury’s verdict finding him guilty of the offenses

of capital murder, rape, forcible sodomy, and statutory

burglary. He claims that, because he was allegedly

intoxicated, and because the Commonwealth’s evidence was in

conflict regarding Burns’ whereabouts on the night of

Cooley’s murder, the Commonwealth failed to prove beyond a

reasonable doubt that he committed a willful, deliberate, and

premeditated murder. He also claims that there was

insufficient evidence of penetration to support his

convictions for rape and forcible sodomy. Finally, Burns

concedes that the evidence established that he broke into and

entered Cooley’s residence, but he asserts that the evidence

failed to show that he did so with the intent to commit

murder or rape. We do not agree with any of Burns’ arguments

regarding the sufficiency of the evidence.

As we said earlier in this opinion, we must view the

evidence in the light most favorable to the Commonwealth and

afford that evidence all reasonable inferences that are

fairly deducible from it. Horton, 255 Va. at 608, 499 S.E.2d

45
at 259. Under that standard of review, we affirm the

judgment of the circuit court unless that judgment is without

evidence to support it or is plainly wrong. Id.

Viewed in the light most favorable to the Commonwealth,

the evidence showed that Burns had been drinking prior to

Cooley’s murder, but, as the circuit court noted in ruling on

Burns’ motion to strike the Commonwealth’s evidence, Burns

was not “so intoxicated as to be unable to premeditate.” He

drove his vehicle to several different locations on the

evening of the murder and even asked Buckley to help him

establish an alibi. The alleged conflicts in the evidence

regarding Burns’ whereabouts on the evening of Cooley’s

murder were matters for the jury to resolve. As the fact

finder, the jury was certainly free to reject Burns’ self-

serving statements regarding his activities on that evening.

As to the issue of penetration, Burns’ position

overlooks the fact that Burns’ sperm were found on the

vaginal and anal swabs taken from the victim. In Spencer v.

Commonwealth, 238 Va. 275, 284, 384 S.E.2d 775, 780 (1989),

cert. denied, 493 U.S. 1036 (1990), we found that the

presence of sperm in the victim’s vagina alone was sufficient

to support a finding that penetration had occurred.

Furthermore, Tontarski reported the presence of sperm cells

on a sheet and pillowcase recovered from the bedroom where

46
Cooley’s body was found, on Cooley’s lower denture found on

the floor of the bedroom, on a washcloth found under Cooley’s

left thigh, and on several items recovered from Cooley’s

bathroom. As we have already stated, the jury was free to

reject Burns’ self-serving statements, especially the

statement that he digitally inserted his semen into Cooley in

order to cover up the crime.

Finally, with regard to the statutory burglary

conviction, the evidence already discussed along with the

evidence detailing the circumstances of Cooley’s murder and

the wounds inflicted upon her are sufficient to establish

Burns’ intent to commit murder and/or rape when he broke into

and entered Cooley’s home. Intent is frequently shown by

circumstances or by a person’s conduct. Hargrave v.

Commonwealth, 214 Va. 436, 437, 201 S.E.2d 597, 598 (1974).

Thus, we find sufficient evidence to support all the

convictions in this case.

C. PENALTY PHASE ISSUES

1. REBUTTAL EVIDENCE FROM VIRGINIA
DEPARTMENT OF CORRECTIONS

At Burns’ request prior to trial, a subpoena duces tecum

was issued to a regional director of the Virginia Department

of Corrections. The subpoena sought “documents or records

describing the daily inmate routine, general prison

47
conditions, and security measures at the Red Onion

Correctional Center and Wallens Ridge State Prison, . . . and

videotapes” of those facilities. The Commonwealth moved to

quash the subpoena, and after a hearing on that motion, the

circuit court granted the motion. 14

During the penalty phase of his trial, Burns attempted

to introduce evidence concerning the conditions at those

prisons in rebuttal to the Commonwealth’s evidence of Burns’

future dangerousness. Burns’ counsel reminded the court that

subpoenas had been issued to the wardens of those two so-

called “super-max” prisons, but since the court had indicated

that it would grant a motion to quash those subpoenas,

counsel had obtained newspaper articles from the Internet

that discussed the security and life of a prisoner at those

facilities. Burns’ counsel proffered those articles as “what

the testimony would show.” The court adhered to its prior

decision and did not admit the testimony.

Recognizing that this Court held in Walker v.

Commonwealth, 258 Va. 54, 70, 515 S.E.2d 565, 574 (1999),

cert. denied, 528 U.S. 1125 (2000), and Cherrix v.

14
At Burns’ request, subpoenas were also issued to the
wardens of those facilities. Since the Commonwealth’s motion
did not cover those subpoenas, the court’s decision likewise
did not address them. However, the court indicated that it
would make the same ruling if a motion to quash those
subpoenas were before it.

48
Commonwealth, 257 Va. 292, 310, 513 S.E.2d 642, 653, cert.

denied, 528 U.S. 873 (1999), that evidence regarding the

conditions of prison life in a maximum security prison is not

proper mitigating evidence, Burns offered this evidence, not

in mitigation, but in rebuttal to the Commonwealth’s evidence

of Burns’ future dangerousness. Burns argues that, since the

only possible sentence for an accused convicted of capital

murder is either the death penalty or life imprisonment

without parole, the prison society is the only society to

which such a defendant can ever pose a “continuing serious

threat.” Code §§ 19.2-264.2 and -264.4(C). Thus, according

to Burns, evidence regarding the quality and structure of an

inmate’s life in a maximum security prison, as well as the

prison’s safety and security features, is relevant evidence

to rebut the Commonwealth’s evidence that a defendant would

“commit criminal acts of violence” in the future. Id. We do

not agree.

First, we have rejected the argument that a jury’s

determination, under Code §§ 19.2-264.2 and –264.4(C),

regarding whether a defendant “would commit criminal acts of

violence that would constitute a continuing serious threat to

society” is restricted to a consideration of only the prison

society. Lovitt v. Commonwealth, 260 Va. 497, 517, 537

S.E.2d 866, 879 (2000). Nevertheless, Burns contends that

49
his proffered evidence should have been admitted to dispel

the misconception that prison life includes such features as

weekend furloughs, conjugal visits, and unrestricted work

privileges. However, the Commonwealth offered no such

evidence regarding the nature of prison life for a defendant

convicted of capital murder or any other felony. Nor did the

Commonwealth introduce evidence about the number of violent

crimes committed in prison or the likelihood that a prisoner

could escape. Instead, the Commonwealth’s evidence

concerning Burns’ future dangerousness consisted of his prior

criminal record and unadjudicated criminal acts. Thus,

Burns’ evidence was not in rebuttal to any evidence

concerning prison life.

Instead, Burns wanted to show, in rebuttal to the

Commonwealth’s evidence of his future dangerousness, that his

opportunities to commit criminal acts of violence in the

future would be severely limited in a maximum security

prison. However, in Cherrix, we reiterated the principle

that the United States Constitution “does not limit ‘the

traditional authority of a court to exclude, as irrelevant,

evidence not bearing on the defendant’s character, prior

record, or the circumstances of his offense.’” Cherrix, 257

Va. at 309, 513 S.E.2d at 653 (quoting Lockett v. Ohio, 438

U.S. 586, 605 n.12 (1978)). Thus, the relevant inquiry is

50
not whether Burns could commit criminal acts of violence in

the future but whether he would. Indeed, Code §§ 19.2-264.2

and –264.4(C) use the phrase “would commit criminal acts of

violence.” Accordingly, the focus must be on the particular

facts of Burns’ history and background, and the circumstances

of his offense. 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.

We also note that the cases relied upon by Burns with

regard to this issue, specifically Gardner v. Florida, 430

U.S. 349 (1977), Skipper v. South Carolina, 476 U.S. 1

(1986), and Simmons v. South Carolina, 512 U.S. 154 (1994),

are inapposite. In Gardner, the trial court imposed a

sentence of death after reviewing the contents of a pre-

sentence report, part of which had not been disclosed to the

defendant. Gardner, 430 U.S. at 353. Skipper involved the

trial court’s refusal to allow the defendant to introduce

evidence showing his good behavior in jail while awaiting

trial. Skipper, 476 U.S. at 4. The Court in Skipper noted

that the relevancy of that evidence was “underscored . . . by

the prosecutor’s closing argument, which urged the jury to

51
return a sentence of death in part because petitioner could

not be trusted to behave if he were simply returned to

prison.” Id. at 5. Unlike the evidence proffered by Burns,

the evidence in Skipper was peculiar to that defendant’s

history and background. Finally, Simmons required the giving

of an instruction regarding life without parole when a

defendant is parole ineligible and future dangerousness is at

issue. Simmons, 512 U.S. at 156.

Accordingly, we find no error in the circuit court’s

decision quashing the subpoena directed to the Department of

Corrections and refusing to admit evidence about prison life

in a maximum security prison in rebuttal to the

Commonwealth’s evidence in this case of Burns’ future

dangerousness.

2. CLOSING ARGUMENT OF COMMONWEALTH’S ATTORNEY

During closing argument in the penalty phase of this

case, the Commonwealth’s Attorney argued that Cooley was a

modest, private person who had an “animal” enter her life.

At that point, Burns objected and the court stated, “Hold on,

Mr. Ebert [the Commonwealth’s Attorney].” The following

colloquy then occurred:

MR. EBERT: Excuse me. A person acting like an
animal. Excuse me.

THE COURT: All right.

52
 MR. EBERT: A person acting with depravity of mind.

MR. ALLEN [Burns’ attorney]: I have a motion, Your
Honor. And I will make the motion after he finishes.
Note my objection at this time.

THE COURT: All right.

MR. EBERT: Excuse me, ladies and gentlemen. I
don’t mean to characterize him as an animal. But I will
characterize him as a human being with a depravity of
mind, a person who acted in a vile, horrible, inhumane
way, to an innocent person.

After the Commonwealth’s Attorney concluded his closing

argument, Burns argued that the reference to an “animal” was

improper and prejudicial, and that a mistrial was required.

He also complained because the court had not admonished the

Commonwealth’s Attorney at the time he made the statement.

The court then explained that, although Burns had objected at

the time, it had not admonished the Commonwealth’s Attorney

because he had corrected the statement. For the same reason,

the court denied the motion for a mistrial. Burns assigns

error to that ruling.

Although the Commonwealth argues that Burns procedurally

defaulted this assignment of error because he did not move

for a mistrial at the moment “when the objectionable words

were spoken,” Reid v. Baumgardner, 217 Va. 769, 774, 232

S.E.2d 778, 781 (1977), we are not inclined to agree. While

Burns’ counsel did not specifically move for a mistrial when

the Commonwealth’s Attorney said that an “animal” had entered

53
Cooley’s life, he did object and advised the court that he

had a motion that he would make after the Commonwealth’s

Attorney finished his closing argument. While the better

practice would have been to move for a mistrial at that very

moment, we cannot say under the circumstances of this case

that Burns’ motion came too late. 15 Accordingly, we will

address the merits of this assignment of error.

In doing so, we are mindful of the principle that “[a]

trial court exercises its discretion when it determines

whether it should grant a motion for mistrial.” Beavers v.

Commonwealth, 245 Va. 268, 280, 427 S.E.2d 411, 420, cert.

denied, 510 U.S. 859 (1993). “When a motion for mistrial is

made, based upon an allegedly prejudicial event, the trial

court must make an initial factual determination, in the

light of all the circumstances of the case, whether the

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

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

78, 95, 393 S.E.2d 609, 619, cert. denied, 498 U.S. 908

(1990) (quoting LeVasseur v. Commonwealth, 225 Va. 564, 589,

304 S.E.2d 644, 657 (1983), cert. denied, 464 U.S. 1063

(1984)). Unless we find that the trial court’s denial of a

mistrial is wrong as a matter of law, we will not disturb the

15
However, Burns never asked the court to instruct the
jury to disregard the argument of the Commonwealth’s

54
court’s decision on appeal. Spencer, 240 Va. at 95, 393

S.E.2d at 619.

In the present case, we cannot say, as a matter of law,

that the circuit court erred in denying Burns’ motion for a

mistrial. By the time that Burns moved for a mistrial, the

Commonwealth’s Attorney had retracted the reference to Burns

as an “animal” and had stated to the jury three times,

“Excuse me.” Furthermore, despite the court’s explanation

why it did not admonish the Commonwealth’s Attorney, we

believe that the court’s initial response to Burns’

objection, i.e., “Hold on, Mr. Ebert[,]” was tantamount to an

admonishment, which the jury heard. An “admonition of [a]

trial court in the presence of [a] jury [makes] it known to

the jury that the court [is] not satisfied as to the

propriety of [an] argument.” Clanton v. Commonwealth, 223

Va. 41, 54, 286 S.E.2d 172, 179 (1982). Thus, we conclude

that Burns’ rights were not “indelibly prejudiced.”

LeVasseur, 225 Va. at 589, 304 S.E.2d at 657.

3. MENTAL EVALUATION PRIOR TO PENALTY PHASE

Prior to the commencing the penalty phase of the trial,

Burns moved for an evaluation pursuant to Code § 19.2-300.

The circuit court denied the motion on the basis that an

evaluation under that section is to guide the trial judge,

______________________
Attorney.

55
not the jury. The court advised Burns that he could renew

his motion at the proper time.

In pertinent part, Code § 19.2-300 provides, that, when

any person is convicted for

any criminal offense which indicates sexual abnormality,
the trial judge . . . shall upon application of the
attorney for the Commonwealth, the defendant, or counsel
for defendant . . . defer sentence until the report of a
mental examination conducted as provided in § 19.2-301
of the defendant can be secured to guide the judge in
determining what disposition shall be made of the
defendant.

Although Burns acknowledges that this statute provides for a

mental evaluation to “guide the judge,” he claims that such

an evaluation is equally valuable to a jury when it is

deciding the sentence for a capital murder conviction.

However, his argument overlooks the plain language of the

statute. This provision authorizes a mental evaluation for

the purpose of guiding the trial judge, not the jury.

Furthermore, Burns renewed his motion for an evaluation

under Code § 19.2-300 after the jury returned its sentencing

verdicts, and the court granted it. Thus, Burns received all

that he was entitled to under that statute. Accordingly, we

will reject his claim.

4. PENALTY PHASE JURY INSTRUCTIONS

Before the jury commenced its deliberations during the

penalty phase of the trial, the court instructed the jurors

56
that “[t]he words ‘imprisonment for life’ mean imprisonment

for life without possibility of parole.” In addition to this

instruction, the court stressed to the jury that imprisonment

for life does mean life without parole. Nevertheless, Burns

now complains because the circuit court refused his proposed

Instruction A, which instructed the jury that it could

“consider as a possible mitigating factor that a sentence of

life in prison means that the defendant will never be

eligible for parole[,]” and his proposed Instruction C, which

instructed the jury that, in determining the question of

future dangerousness, it “may consider the fact that if you

set the defendant’s punishment at life imprisonment, he will

never be eligible for parole.”

We conclude that the circuit court properly rejected

these instructions. Since the jury was instructed that

imprisonment for life means life without the possibility of

parole, both of Burns’ proposed instructions were

repetitious. See Gray, 233 Va. at 351, 356 S.E.2d at 178.

Furthermore, we have consistently held that a defendant

convicted of capital murder is not entitled to a jury

instruction that emphasizes a particular mitigating factor.

See e.g. George v. Commonwealth, 242 Va. 264, 283, 411 S.E.2d

12, 23 (1991), cert. denied, 503 U.S. 973 (1992); Gray, 233

57
Va. at 351, 356 S.E.2d at 178; LeVasseur, 225 Va. at 595, 304

S.E.2d at 661. 16

D. STATUTORY REVIEW

1. PASSION, PREJUDICE, AND PROPORTIONALITY

Pursuant to Code § 17.1-313(C)(1), we must determine

whether the death sentence in this case was imposed under the

influence of passion, prejudice, or other arbitrary factors.

Upon careful review of the record, we find no evidence that

any such factor was present or influenced either the jury’s

or the circuit court’s sentencing decision.

However, Burns contends that his sentence of death was

imposed under the influence of passion and prejudice because

the Virginia death penalty statute is unconstitutional; he

was not allowed to introduce evidence from prison officials

to rebut the Commonwealth’s closing argument that, if Burns

receives life imprisonment, he would pose a continuing danger

16
The court, sua sponte, asked the parties to address
the verdict form utilized during the penalty phase of Burns’
trial in light of our decision in Atkins v. Commonwealth, 257
Va. 160, 179, 510 S.E.2d 445, 457 (1999). Upon considering
the parties’ letter briefs, we conclude that any question
concerning the verdict form in this case is procedurally
defaulted because Burns neither raised the issue in the
circuit court nor assigned it as error before this Court.
See Rule 5:25; Orbe v. Commonwealth, 258 Va. 390, 403 n.13,
519 S.E.2d 808, 816 n.13 (1999), cert. denied, ___ U.S. ___,
120 S.Ct. 1970 (2000).

58
to the prison staff and could escape from prison; 17 and the

Commonwealth’s Attorney referred to Burns as an “animal” and

argued to the jury that their decision “will send a message.”

We do not believe that any of these factors created an

atmosphere of passion or prejudice that influenced the

sentencing decision.

2. PROPORTIONALITY REVIEW

Code § 17.1-313(C) (2) requires us to determine whether

the sentence of death in this case is “excessive or

disproportionate to the penalty imposed in similar cases,

considering both the crime and the defendant.” Pursuant to

Code § 17.1-313(E), we have accumulated the records of all

capital murder cases reviewed by this Court. The records

include not only those capital murder cases in which the

death penalty was imposed, but also those cases in which the

trial court or jury imposed a life sentence and the defendant

17
This argument by the Commonwealth occurred during its
rebuttal closing argument at the end of the penalty phase.
At that time, Burns did not object to the argument. However,
after the court explained the verdict forms to the jury and
the jury retired to deliberate, Burns moved for a mistrial on
the basis that the Commonwealth’s argument was precisely the
kind of argument that he sought to rebut with his evidence
concerning the security features of a maximum security prison
and the nature of an inmate’s life incarcerated in such a
facility. Clearly, this motion for a mistrial, unlike the
first one, came too late. See Reid, 217 Va. at 774, 232
S.E.2d at 781. However, we express no opinion regarding the
question whether Burns should have been allowed to introduce

59
petitioned this Court for an appeal. Whitley v.

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

denied, 459 U.S. 882 (1982). In complying with the statutory

directive to compare this case with “similar cases,” we have

specifically focused on cases in which a person was murdered

during the commission of rape and/or forcible sodomy, and the

death penalty was imposed upon both the future dangerousness

and vileness predicates. See, e.g., Cherrix, 257 Va. 292,

513 S.E.2d 642; Pruett v. Commonwealth, 232 Va. 266, 351

S.E.2d 1 (1986), cert. denied, 482 U.S. 931 (1987); Coleman

v. Commonwealth, 226 Va. 31, 307 S.E.2d 864 (1983), cert.

denied, 465 U.S. 1109 (1984); Mason v. Commonwealth, 219 Va.

1091, 254 S.E.2d 116, cert. denied, 444 U.S. 919 (1979);

Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 135 (1978),

cert. denied, 441 U.S. 967 (1979).

We have also considered cases in which defendants

received life sentences, rather than the death penalty, for

capital murder during the commission of rape. See, e.g.,

Horne v. Commonwealth, 230 Va. 512, 339 S.E.2d 186 (1986);

Keil v. Commonwealth, 222 Va. 99, 278 S.E.2d 826 (1981).

“However, our proportionality analysis encompasses all

capital murder cases presented to this Court for review and

______________________
that evidence to rebut the Commonwealth’s argument if he had
made a timely objection.

60
is not limited” to these selected cases. Overton v.

Commonwealth, 260 Va. 599, 605-06, ____ S.E.2d ____, ____

(2000) (citing Boggs v. Commonwealth, 229 Va. 501, 522, 331

S.E.2d 407, 422 (1985), cert. denied, 475 U.S. 1031 (1986)).

Our proportionality review also does not require that a given

capital murder case “equal in horror the worst possible

scenarios yet encountered.” Turner v. Commonwealth, 234 Va.

543, 556, 364 S.E.2d 483, 490, cert. denied, 486 U.S. 1017

(1988).

The defendant has argued that the sentence of death in

his case is disproportionate because of his borderline range

of intellectual functioning, 18 the physical and sexual abuse

that he suffered as a child, his incompetence to stand trial

at one time, his continued need for medications during the

trial, and his symptoms of anxiety and depression. Burns,

however, fails to address the fact that he broke into and

entered the home of his elderly mother-in-law, raped and

sodomized her, and killed her by breaking her ribs in 24

places and rupturing her heart. He also wants this Court to

ignore his lengthy criminal record and his repeated attacks

on Buckley. Finally, we have approved the imposition of the

death penalty for a defendant with a significantly lower IQ

61
than that of Burns. See Atkins v. Commonwealth, 260 Va. 375,

387-89, 534 S.E.2d 312, 319-21 (2000) (defendant had IQ of

59). Thus, we do not find that any of the factors identified

by Burns, when considered in light of his prior criminal

history and the circumstances of this offense, distinguish

him from other defendants who have received the death

penalty.

Accordingly, based on our review of this case and

“similar cases,” we conclude that Burns’ sentence of death is

not excessive or disproportionate to sentences generally

imposed in this Commonwealth for capital murders comparable

to the defendant’s murder of Tersey Elizabeth Cooley.

III. CONCLUSION

For the reasons stated, we find no error either in the

judgments of the circuit court or in the imposition of the

death penalty. We also see no reason to commute the sentence

of death. Therefore, we will affirm the judgments of the

circuit court.

Record No. 001879 — Affirmed.
Record No. 001880 — Affirmed.

JUSTICE KOONTZ, concurring in part and dissenting in part.

______________________
18
Dr. Cathy Williams-Sledge administered an intellectual
test to Burns. The results showed that he has a verbal IQ of
73, a performance IQ of 86, and a full-scale IQ of 77.

62
 I respectfully dissent from that part of the majority

opinion in this case concluding that the trial court did not

err in refusing to order a competency evaluation of William

Joseph Burns upon motion of his counsel during his trial for

the capital murder of Tersey Elizabeth Cooley and other

related felony crimes. I concur in all respects with the

remainder of that opinion.

Beyond question, the conviction of a legally incompetent

defendant violates that defendant’s constitutional right to a

fair trial. Drope v. Missouri, 420 U.S. 162, 171-72 (1975).

In that regard, the issue in the present case does not

involve an insanity defense which would concern Burns’ mental

state at the time these crimes were committed. Nor does the

issue involve a final determination that Burns was, or was

not, incompetent to stand trial at some point during this

trial. Rather, the narrow issue is whether, under the facts

of this particular case, Burns was improperly denied a

competency evaluation pursuant to Code § 19.2-169.1(A) so as

to ensure that he received a fair trial. See Drope at 181-82

(due process violated when trial court failed to make further

inquiry into defendant’s competency during trial).

In pertinent part, Code § 19.2-169.1(A) provides that:

“If, at any time . . . before the end of trial, the court

finds, upon hearing evidence or representations of counsel

63
for the defendant . . . that there is probable cause to

believe that the defendant lacks substantial capacity to

. . . assist his attorney in his own defense, the court shall

order that a competency evaluation be performed.” (Emphasis

added). The probable cause standard in this statute is the

familiar objective one requiring less than a preponderance of

the evidence. Thus, where the circumstances of a particular

case would reasonably cause doubt with respect to the

defendant’s substantial capacity to assist his attorney in

his own defense, this statute mandates, as is

constitutionally required, that the trial judge order an

evaluation of the defendant’s competency. This statute does

not give the trial judge the discretion as to whether to

order that evaluation. Accordingly, our review of the trial

judge’s denial of the motion by Burns’ counsel for a

competency evaluation pursuant to this statute involves

consideration of the objective circumstances known to the

trial judge at the time of his ruling, and not the trial

judge’s subjective beliefs regarding Burns’ competency.

Although reflected only in a footnote in the majority

opinion, it is significant that prior to Burns’ trial the

trial judge had found him incompetent to stand trial, and

that only after approximately four months of inpatient care

had the trial judge found that Burns’ competency had been

64
restored. However, Dr. William J. Stejskal, a court-

appointed mental health expert, had opined in his report to

the trial court that Burns’ capacity to assist in his own

defense was only “marginally intact,” and that Burns would

require appropriate antidepressant and anxiety medication

under “continuing psychiatric care with respect to the

management of the medications.” Burns was receiving these

medications, prescribed by a physician, while in jail so that

his capacity to assist in his own defense could be

maintained. Nevertheless, on the first day of trial it

became necessary for the trial court to recess so that

medication could be administered to Burns. Then on the next

day of trial, Burns became “visibly upset” while a tape of

his statement to police was played for the jury. Again the

trial court recessed, questioned Burns, and heard evidence

from the jail nurse that Burns was receiving the prescribed

medications.

During the trial judge’s questioning of Burns, he gave

answers that the court reporter noted in some instances as

“inaudible” and in others as “unintelligible.” As indicated

in the majority opinion, the trial judge dismissed this

distinction in Burns’ answers, finding that Burns’ “responses

were inaudible, not necessarily nonsensical. The bits and

pieces that I could understand were responsive to my

65
questions. All told, though, they were simply inaudible.”

In contrast to this conclusion, admittedly based on only

“bits and pieces” that could be understood, Burns’ counsel

asserted that “quite clearly, [Burns] is not thinking

rationally at this time, and his statements are

incomprehensible. I am sitting right next to him.”

In denying the motion for a competency evaluation, the

trial judge expressed in detail his reasons for doing so.

Those reasons are related in the majority opinion and need

not be repeated here. It is apparent that the trial judge

concluded that because Burns was receiving medication he was

competent, that he was probably “malingering” or “acting,”

and that playing the tape of his statement to the police was

understandably “upsetting” to him. In short, the trial judge

simply did not believe that Burns lacked substantial capacity

to assist his attorney in his own defense. The trial judge

may have been right in his conclusions regarding Burns’

competency. No appellate court will ever know for sure,

however.

In any event, the trial judge was not called upon under

the proper application of Code § 19.2-169.1(A) to determine

Burns’ competency or to deny the requested evaluation upon a

subjective belief that Burns was “acting” incompetent.

Rather, the trial judge was called upon to determine

66
objectively whether from the undisputed facts there existed

probable cause to believe that Burns lacked the requisite

capacity to assist his attorney in his own defense. Upon a

showing of that probable cause, the trial judge was

statutorily mandated to order the requested competency

evaluation.

In my view, the conclusion that such probable cause was

established is compelled by the undisputed facts in this

case. Burns was known to be only “marginally” competent to

stand trial when the trial began. His competency during

trial depended entirely on the continuing effectiveness of

the prescribed medications and not merely that Burns received

them. On at least one occasion it became necessary to recess

the trial proceedings so that Burns could be given additional

medication. On another occasion, Burns became “visibly

upset,” another recess was required, and at that time he gave

“unintelligible” answers to some of the trial judge’s

questions. Moreover, Burns’ counsel advised the trial court

that Burns was not thinking “rationally” and that Burns’

statements were “incomprehensible” to him. Surely, these

circumstances created a reasonable question whether the

prescribed medications were continuing to be effective so

that Burns could maintain substantial capacity to assist his

attorney in his own defense. Accordingly, probable cause was

67
established on the issue of Burns’ competency and it was

error for the trial court to deny the motion for a competency

evaluation as mandated by Code § 19.2-196.1(A).

For these reasons and because the error in this case

denied Burns his right to a fair trial, I would reverse his

conviction and remand this case for a new trial.

68