Hedrick v. Commonwealth

Present: All the Justices

BRANDON WAYNE HEDRICK
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record Nos. 982055 & 982056 February 26, 1999

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF APPOMATTOX COUNTY
Richard S. Blanton, Judge

In these appeals, we review the capital murder

conviction, sentence of death, and related convictions imposed

upon Brandon Wayne Hedrick.

I. PROCEEDINGS

The defendant was tried before a jury on indictments for

the following offenses: capital murder of Lisa Yvonne

Alexander Crider in the commission of robbery, forcible

sodomy, and rape in violation of Code § 18.2-31(4) and (5);

robbery in violation of Code § 18.2-58; rape in violation of

Code § 18.2-61; forcible sodomy in violation of Code § 18.2-

67.1; abduction in violation of Code § 18.2-47; and use of a

firearm in the commission of murder in violation of Code

§ 18.2-53.1. The jury found the defendant guilty of these

crimes and fixed his punishment at life imprisonment on the

charge of forcible sodomy, life imprisonment on the charge of

rape, life imprisonment on the charge of robbery, ten years

imprisonment on the charge of abduction, and three years
imprisonment on the charge of use of a firearm in the

commission of a felony.

In the penalty phase of the capital murder trial, the

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

he represented a continuing serious threat to society and that

his offense was outrageously or wantonly vile, horrible, or

inhuman in that it involved torture, depravity of mind, or

aggravated battery to the victim. After considering a report

prepared by a probation officer pursuant to Code § 19.2-264.5,

the trial court sentenced the defendant in accord with the

jury verdicts.

We consolidated the automatic review of the defendant's

death sentence with his appeal of the capital murder

conviction. Code § 17.1-313(F). The defendant's appeal of

his non-capital convictions was certified from the Court of

Appeals, Code § 17.1-409, and was consolidated with his

capital murder appeal and given priority on our docket.

II. THE EVIDENCE

On May 10, 1997, William K. Dodson, Trevor Jones, and the

defendant were together at Jones' apartment in Lynchburg. The

defendant and Jones decided to leave the apartment and drive

to an area in downtown Lynchburg where they could find some

prostitutes. Dodson remained at the apartment.

2
 Jones drove his truck to an area near Fifth and Madison

Streets in Lynchburg where the defendant and Jones met two

prostitutes. The defendant and Jones gave the prostitutes

money, asked them to purchase a small quantity of crack

cocaine, and returned to Jones' apartment with the women. The

defendant and Jones smoked the crack cocaine that they

purchased, and the women smoked their own cocaine. Jones, the

defendant, and Dodson had sexual relations with the

prostitutes. The defendant and Jones, along with the women,

returned to the area near Fifth and Madison Streets. The

defendant and Jones gave the women $50 and asked them to

purchase some more crack cocaine. The women took the money

but never returned.

The defendant and Jones then rode around in Jones' truck

for about 45 minutes. They met two different prostitutes and

returned with them to Jones' apartment. The defendant and

Jones drank bourbon, smoked marijuana, and had sexual

relations with the women. Dodson, who was still at Jones'

apartment, was asleep when these women were present.

Around 11:00 p.m., the defendant and Jones, along with

the prostitutes, left the apartment and returned to the area

near Fifth and Madison Streets. After the women left Jones'

truck, Jones observed Crider "walking down the road." Jones,

who had met Crider previously, told the defendant that

3
Crider's boyfriend was a seller of crack cocaine. The

defendant and Jones decided to "pick up" Crider, have sexual

relations with her, and rob her because they thought she may

have crack cocaine in her possession.

Jones approached Crider and "asked if she wanted to have

sex." Crider got into Jones' truck, and the defendant, Jones,

and Crider went to Jones' apartment. Once they arrived at the

apartment, Jones paid Crider $50 and had sexual intercourse

with her. The defendant did not have sexual relations with

Crider at the apartment.

After Jones had sexual intercourse with Crider, he left

his bedroom while Crider was "getting dressed." Jones went to

a living room and spoke with the defendant. The defendant and

Jones devised a plan in which the defendant would pretend to

rob both Jones and Crider. Jones did not want Crider to know

that he was involved in the robbery because Crider knew where

Jones lived, and Jones was afraid that Crider's boyfriend

would retaliate against him.

Jones told the defendant to leave the apartment, go to

Jones' truck, and get Jones' shotgun. While the defendant was

retrieving the shotgun, Jones told Crider that he had lost his

keys, and she began to help him look for the supposedly lost

keys. Jones went into the kitchen, got some duct tape,

returned to the bedroom, and placed the tape there. Jones

4
also got a set of handcuffs. When the defendant entered the

house with the shotgun, Jones and Crider were in the kitchen.

The defendant "racked" the pump on the shotgun to "get

[Crider's] attention," and the defendant "motioned for" Crider

and Jones and told them to go into Jones' bedroom.

The defendant ordered Jones to empty Crider's pockets,

and Jones took the $50 bill that he had paid Crider,

cigarettes, and a cigarette lighter. The defendant told Jones

to place the handcuffs on Crider. Jones did so. Jones also

covered Crider's eyes and mouth with duct tape, and he placed

a shirt over her face. The defendant took Crider out of the

apartment and placed her in Jones' truck.

Dodson, who had been asleep in the living room, woke up

when he heard the sound caused when the defendant "racked" the

pump on the shotgun. In response to Dodson's question, "what

. . . is going on?", Jones responded that, "this is one of the

girls that ripped us off; we're just going to scare her."

The defendant, Jones, and Crider left the apartment about

1:00 a.m. Jones sat in the driver's seat. The defendant and

Crider were in the backseat of the truck. The defendant

removed the shirt and duct tape from Crider. After riding

around in the truck for some time, the defendant decided that

he wanted to have sexual intercourse with Crider. The

defendant told Crider that he "wanted some ass." The

5
defendant warned her, "don't try anything; I got a twenty-

five," referring to a .25-caliber pistol. Jones stopped the

truck and got out. The defendant raped Crider.

After the defendant raped Crider, he got out of the truck

and spoke with Jones. The defendant told Jones that the

defendant did not want to return Crider to the downtown area

of Lynchburg because he was "afraid something might happen."

The defendant, because he had just raped Crider, was afraid

that "she might come back on him with her boyfriend." The

defendant and Jones had a brief conversation, "about killing"

Crider, and decided to do so.

The defendant and Jones got back into the truck. Crider

was crying. She was "upset" and "scared." Jones drove the

truck as he and the defendant tried to find a good location to

kill Crider. As the defendant and Jones continued to look for

a place to kill Crider, Jones drove the truck into Appomattox

County. Crider, who "kind of figured" that the defendant and

Jones intended to harm her, pled, "don't kill me; I got two

kids." She was "sniffling and crying."

Crider, continuing to plead for her life, asked: "[I]s

there anything I can do to make ya'll not do this?" The

defendant responded, "if you suck my dick, I'll think about

it." Crider then performed oral sodomy on the defendant.

6
 Jones continued to drive the truck, and he proceeded on a

road in Appomattox County and drove onto a "pull-off" space on

a "back road" near the James River. The defendant got out of

the passenger side of the truck with the shotgun, and Jones

took Crider out of the truck. Jones removed the handcuffs

from Crider because he was afraid that his fingerprints were

on them. The defendant and Jones put gloves on their hands to

avoid leaving their fingerprints at the crime scene.

The time was now "daybreak." Crider, who was crying,

continued to beg the defendant and Jones not to kill her,

saying, "I got two kids." After Jones had removed the

handcuffs from Crider, he bound her hands together with duct

tape. He also placed duct tape around her mouth and around

her eyes. The defendant was standing, watching with the

shotgun in his hands.

The defendant, Jones, and Crider walked toward the river

bank. Jones led Crider because she was "blindfolded." Jones

"turned [Crider and] faced her back to the river." Jones

turned to the defendant, who was armed with the shotgun, and

said, "do what you got to do." Jones began to walk to the

truck. When Jones was within 10 feet from the truck, he heard

a gunshot.

The defendant returned to the truck with the shotgun and

told Jones that Crider "went into the river." Jones took the

7
shell from the shotgun so that it would not be present at the

scene. The defendant and Jones returned to Lynchburg. They

disposed of the shotgun shell, duct tape, and other evidence

en route to Lynchburg. They arrived at Jones' apartment at

about 6:30 or 7:00 a.m. on Sunday morning, and went to sleep.

The defendant and Jones subsequently fled Virginia, and

they were arrested in Lincoln, Nebraska. The shotgun that the

defendant used to kill Crider was found in Jones' truck, which

he had driven to Nebraska.

Sherry Kelly Mays and Warren Johns, two friends who had

gone to the James River to fish, found Crider's body on the

evening of May 11, 1997. Crider's body had been placed in

such a manner that the body appeared to be "sitting up with

[the] feet crossed," and the victim's hands were bound with

duct tape.

Dr. David Oxley, a deputy chief medical examiner for the

Commonwealth of Virginia, qualified as an expert witness on

the subject of forensic pathology. He performed an autopsy on

Crider's body. Dr. Oxley testified that an examination of the

body revealed that Crider had been shot in the face with a

shotgun. Several of her teeth were missing and other teeth

were fractured. The top portion of her head had been bound

with silver duct tape, which extended to the bridge of her

nose. Duct tape was also found around her mouth.

8
 The shotgun wound caused massive injury to Crider's

brain, and shot pellets and wadding were found in the interior

of her cranial cavity. The location of the shotgun wad, deep

in the victim's cranial cavity, indicated that she was killed

within a "range of fire of less than ten feet." The entrance

wound from the shotgun blast measured an inch and a half in

greatest diameter. An x-ray of Crider's skull showed the

presence of shotgun pellets in her skull and brain. A blood

sample was extracted from Crider's body, and a toxicology

screen on that sample revealed an absence of any "drugs of

abuse or prescription drugs" in her blood system.

Robert L. Strubel, a forensic scientist, qualified as an

expert witness on the subject of blood stain pattern analysis.

He testified that based upon his analysis of certain

photographs, after Crider had been shot in the face her body

was moved and placed in the position where Sherry Mays found

the body.

Elizabeth Bush, a forensic scientist, qualified as an

expert witness on the subject of DNA (deoxyribonucleic acid)

and DNA testing. She conducted DNA tests which revealed that

the possibility of a person other than the defendant providing

a sperm sample found in the victim's vagina was one out of

260,000 in the Caucasian population, one out of 1,000,000 in

9
the Hispanic population, and one out of 8,000,000 in the Black

population. The defendant is Caucasian.

Richard V. Roberts qualified as an expert witness on the

subject of firearms. He examined the shotgun that the

defendant used to kill Crider, shotgun shells, and waddings.

He also examined the wadding that was removed from Crider's

brain. Based upon his tests and examination, which included a

pattern spray of 12-gauge shotgun shells, he concluded that

the muzzle of the shotgun was three to seven feet from

Crider's mouth when she was killed.

III. EVIDENCE ADDUCED IN PENALTY PHASE

During the penalty phase of the capital murder

proceedings, the Commonwealth adduced the following evidence.

The defendant had been convicted of three robberies in three

different jurisdictions. The defendant was armed with a

"Rambo type" knife when he participated in robberies in

Campbell County and Bedford County. The defendant was armed

with a shotgun when he robbed a motel clerk in Farmville.

During that robbery, the defendant, wearing a hood over his

head and a bandanna around his face, pointed the shotgun at

the clerk, who was five or six feet away from him, and

demanded money.

In September 1997, after the defendant had been arrested

for the murder of Crider, and while being transported from

10
Appomattox to the Campbell County Jail, he tried to take a

deputy sheriff's revolver. The defendant later had to be

restrained while being transported. In July 1997, the

defendant attempted to escape from incarceration by climbing a

fence.

The defendant told a State police officer that he shot

Crider and that "he was an avid hunter, he liked to hunt . . .

and how good a shot he was, how he killed deer in the past

using shotguns and rifles at long range."

IV. ASSIGNMENT OF ERROR PROCEDURALLY DEFAULTED

The defendant argues that the trial court erred in

refusing to grant his "motion to dismiss the capital murder

charges on the grounds that the capital murder statutes are

unconstitutional." In support of his contention, the

defendant merely refers this Court to a memorandum of law that

he filed in the trial court. We hold that the defendant's

assertions are insufficient and constitute a procedural

default. "An appellant who asserts that a trial court's

ruling was erroneous has an obligation to state clearly to the

appellate court the grounds for that assertion. A cross-

reference to arguments made at trial is insufficient."

Spencer v. Commonwealth, 240 Va. 78, 99, 393 S.E.2d 609, 622,

cert. denied, 498 U.S. 908 (1990); Swisher v. Commonwealth,

256 Va. 471, 479, 506 S.E.2d 763, 767 (1998); Jenkins v.

11
Commonwealth, 244 Va. 445, 460-61, 423 S.E.2d 360, 370 (1992),

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

V. ISSUE PREVIOUSLY DECIDED

The defendant argues that the trial court erred in

refusing his motion for a jury questionnaire. We have

previously held that a trial court is not required to permit a

defendant to mail a questionnaire to the potential jurors.

See Swisher, 256 Va. at 479, 506 S.E.2d at 767; Goins v.

Commonwealth, 251 Va. 442, 454, 470 S.E.2d 114, 122, cert.

denied, 519 U.S. 887 (1996); Strickler v. Commonwealth, 241

Va. 482, 489-90, 404 S.E.2d 227, 232, cert. denied, 502 U.S.

944 (1991). We will adhere to our previous rulings, and we

will not discuss the jury questionnaire issue further.

VI. BILL OF PARTICULARS

The defendant argues that the trial court erred in

refusing his motion for a bill of particulars. We hold that

the defendant's contention is without merit. The trial

court's decision whether to require the Commonwealth to file a

bill of particulars is a matter which rests within the trial

court's sound discretion. Swisher, 256 Va. at 480, 506 S.E.2d

at 768; Goins, 251 Va. at 454-55, 470 S.E.2d at 122-23;

Quesinberry v. Commonwealth, 241 Va. 364, 372, 402 S.E.2d at

218, 223, cert. denied, 502 U.S. 834 (1991). The defendant

simply does not explain how the trial court abused its

12
discretion by failing to grant his motion for a bill of

particulars. The defendant's conclusional argument fails to

identify any error by the trial court.

VII. ADMISSIBILITY OF EVIDENCE

At trial, the Commonwealth was permitted, over the

defendant's objection, to introduce in evidence an enlarged

photograph of the victim's face. The photograph, which was

approximately two feet by three feet in size, revealed the

injuries that the victim suffered when the defendant shot her

in the face with the shotgun. The defendant argues that the

trial court erred by admitting this photograph in evidence

because it was duplicative of another photograph of the

victim's face which had not been enlarged, and the photograph

was inflammatory and gruesome.

We disagree with the defendant's contentions. We have

held that the admission of photographs in evidence rests

within the sound discretion of the trial court. Walton v.

Commonwealth, 256 Va. 85, 91, 501 S.E.2d 134, 138 (1998);

Goins, 251 Va. at 459, 470 S.E.2d at 126. Photographs of a

victim are admissible to show intent, method, malice, motive,

premeditation, and the atrociousness of the crime. Walton,

256 Va. at 92, 501 S.E.2d at 138. Photographs which

accurately depict the crime scene are not rendered

inadmissible simply because they are gruesome or shocking.

13
Id.; Goins, 251 Va. at 459, 470 S.E.2d at 126; Gray v.

Commonwealth, 233 Va. 313, 343, 356 S.E.2d 157, 173, cert.

denied, 484 U.S. 873 (1987). We have examined the photograph,

and we hold that the trial court did not abuse its discretion.

VIII. AGGRAVATED BATTERY

Code § 19.2-264.2 states:

"In assessing the penalty of any person
convicted of an offense for which the death penalty
may be imposed, a sentence of death shall not be
imposed unless the court or jury shall (1) after
consideration of the past criminal record of
convictions of the defendant, find that there is a
probability that the defendant would commit criminal
acts of violence that would constitute a continuing
serious threat to society or that his conduct in
committing the offense for which he stands charged
was outrageously or wantonly vile, horrible or
inhuman in that it involved torture, depravity of
mind or an aggravated battery to the victim; and (2)
recommend that the penalty of death be imposed."

The jury, in accordance with this statute, sentenced the

defendant to death finding that there is a probability that

the defendant would commit criminal acts of violence that

would constitute a continuing serious threat to society and

that the defendant's conduct was wantonly vile, horrible, or

inhuman.

During the penalty phase of the capital murder

proceeding, the defendant proffered the following jury

instruction which the trial court refused: "A single gunshot

wound causing immediate death does not constitute an

14
aggravated battery of the victim." The defendant contends

that he did not commit an aggravated battery upon Crider and,

citing Godfrey v. Georgia, 446 U.S. 420 (1980), asserts that

"an aggravated battery is not proven where the evidence shows

that the victim died almost instantaneously from a single

gunshot wound." The defendant's argument is without merit.

We have stated that "[w]ithin the context of [Code

§ 19.2-264.2], the term 'aggravated battery' means 'a battery

which, qualitatively and quantitatively, is more culpable than

the minimum necessary to accomplish an act of murder.'"

Sheppard v. Commonwealth, 250 Va. 379, 392, 464 S.E.2d 131,

139 (1995), cert. denied, 517 U.S. 1110 (1996) (quoting Smith

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

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

Here, there was more than sufficient evidence which would

have permitted the jury to find, beyond a reasonable doubt,

that the defendant committed an aggravated battery upon

Crider. Before the defendant murdered Crider, he had robbed

and raped her, forced her to perform an act of oral sodomy

upon him, bound her hands with duct tape, covered her eyes and

mouth with duct tape, and held her in captivity for five

hours. He subsequently removed the duct tape from her hands

and restrained her with handcuffs. The defendant, an avid

hunter who considered himself skilled with firearms, shot the

15
victim in the face with the shotgun, as she stood helplessly

awaiting her execution at a distance of three to seven feet

from the barrel of the shotgun. Without question, under the

facts and circumstances of this case, the manner in which the

defendant terrorized and killed Crider was qualitatively and

quantitatively more culpable than the minimum necessary to

accomplish an act of murder.

The United States Supreme Court's decision in Godfrey v.

Georgia, supra, is not controlling here and is factually

distinguishable. In Godfrey, a defendant, who had been

convicted of capital murder, killed two people by shooting

each victim once with a rifle. There was no other evidence of

physical injury. The Supreme Court, which reversed judgment

confirming the sentence of death, stated that

"[n]o claim was made, and nothing in the record
before us suggests, that the petitioner committed an
aggravated battery upon [the victims], or, in fact,
caused either of them to suffer any physical injury
preceding their deaths. Moreover, in the trial
court, the prosecutor repeatedly told the jury — and
the trial judge wrote in his sentencing report —
that the murders did not involve 'torture.'" 446
U.S. at 432.

Unlike the defendant in Godfrey, Hedrick committed an

aggravated battery upon Crider and caused her to suffer

physical injury and torture preceding her death.

Moreover, we have held that "a mere inspection of the

statutory language in [Code § 19.2-264.2] demonstrates clearly

16
that the term 'vileness' includes three separate and distinct

factors, with the proof of any one factor being sufficient to

support a finding of vileness and hence a sentence of death."

Bunch v. Commonwealth, 225 Va. 423, 442, 304 S.E.2d 271, 282,

cert. denied, 464 U.S. 977 (1983). We have also stated that:

"Code §§ 19.2-264.2 and -264.4(C) define vileness as conduct

that involves torture, depravity of mind, or aggravated

battery to the victim; the use of the disjunctive word 'or,'

rather than the conjunctive 'and,' signifies the availability

of alternative choices." Id. Here, the evidence was

overwhelming that the defendant's conduct showed a depravity

of mind and torture, which the defendant does not challenge on

appeal.

Furthermore, we also observe that the jury found beyond a

reasonable doubt that there was a probability, based upon the

evidence of the prior history of the defendant or of the

circumstances surrounding the commission of the offense of

which the defendant was accused, that he would commit criminal

acts of violence that would constitute a continuing, serious

threat to society. The defendant does not challenge this

finding, which is a separate and independent basis for the

imposition of the death penalty in this case.

IX. SUFFICIENCY OF THE EVIDENCE

17
 The defendant argues that the trial court erred "in

refusing to set aside the verdicts of the jury finding [him]

guilty of robbery, rape and forcible sodomy as contrary to the

law and the evidence." The defendant, in another assignment

of error, argues that the trial court erred in refusing to set

aside the verdicts of the jury finding the defendant guilty of

capital murder in the commission of robbery, capital murder in

the commission of rape, and capital murder in the commission

of forcible sodomy. The defendant's contentions are without

merit.

The standard of review for determining the sufficiency of

evidence on appeal is well established. We must examine the

evidence in the light most favorable to the Commonwealth, the

prevailing party at trial, and we will not disturb the trial

court's judgment unless it is plainly wrong or without

evidence to support it. Goins, 251 Va. at 466, 470 S.E.2d at

130; Beavers v. Commonwealth, 245 Va. 268, 281-82, 427 S.E.2d

411, 421, cert. denied, 510 U.S. 859 (1993); Code § 8.01-680.

Here, the evidence of record established, beyond a reasonable

doubt, that the defendant robbed Crider, raped her, and forced

her to commit an act of oral sodomy. The defendant and Jones

decided before they asked Crider to get into Jones' truck that

they would rob her of crack cocaine. The defendant admitted

to deputy sheriffs that he ordered Jones and Crider to a

18
bedroom where he demanded that she empty her pockets. At

trial, the defendant admitted that he brought the shotgun into

the apartment as part of the plan to rob the victim.

As we have already stated, Jones testified that the

defendant told the victim he "wanted some ass," and the

defendant told Crider, before raping her, "don't try anything;

I got a twenty-five [caliber pistol]." Jones also testified

that when the victim begged the defendant and Jones not to

kill her, the defendant told her that he would consider

sparing her life if she performed oral sodomy upon him. Thus,

we hold that the jury's findings are fully supported by the

evidence.

X. COMMUTATION

The defendant argues that the trial court erred in

failing to commute the death sentence to a sentence of life

imprisonment. We disagree.

Code § 19.2-264.5 states in relevant part:

"When the punishment of any person has been
fixed at death, the court shall, before imposing
sentence, direct a probation officer of the court to
thoroughly investigate the history of the defendant
and any and all other relevant facts, to the end
that the court may be fully advised as to whether
the sentence of death is appropriate and just.
Reports shall be made, presented and filed . . .
[and] such reports shall in all cases contain a
Victim Impact Statement. . . . After consideration
of the report, and upon good cause shown, the court
may set aside the sentence of death and impose a
sentence of imprisonment for life."

19
 Our review of the record reveals that the trial court

gave thorough consideration to the evidence and properly

discharged its statutory duties imposed by Code § 19.2-264.5.

And, the defendant simply failed to show good cause why the

sentence of death should not be imposed.

XI. PASSION AND PREJUDICE

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

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

influence of passion, prejudice or any other arbitrary

factor." The defendant argues that "the fact that the jury

. . . imposed the maximum possible sentence in all of the

predicate cases, when each of the predicate offenses was,

standing alone, clearly not a maximum penalty offense,

indicates that the jury gave no consideration whatever to the

actual offenses involved, but blindly followed the request and

recommendation of the Attorney for the Commonwealth. It seems

clear that the rape in this case, and the sodomy, involving a

victim whose profession was prostitution, and who was in no

way physically injured in the offense, do not rationally

support life sentences for each offense." Continuing, the

defendant says that his robbery of the victim was "so little

supported by the evidence that, absent the murder later, it

would not have resulted in any conviction whatever."

20
 We find no merit in the defendant's assertions. The

defendant's argument that the victim was not physically

injured ignores the undisputed fact that he killed her with a

shotgun blast to her face at close range while she was bound

and gagged with duct tape. Additionally, the defendant

abducted the victim for over five hours, and the victim was

forced "to experience the horror of waiting for [her]

execution." Briley v. Commonwealth, 221 Va. 563, 579, 273

S.E.2d 57, 67 (1980). Our review of the record indicates that

the jury and the trial court gave thoughtful and careful

consideration to all the evidence, and we find nothing in the

record before us which suggests that the jury or the trial

court imposed the sentences of death under the influence of

passion, prejudice, or other arbitrary factors.

XII. EXCESSIVENESS AND DISPROPORTIONALITY

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

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

disproportionate to the penalty imposed in similar cases,

considering both the crime and the defendant."

The test of proportionality that we apply is whether

"juries in this jurisdiction generally approve the supreme

penalty for comparable or similar crimes." Murphy v.

Commonwealth, 246 Va. 136, 145, 431 S.E.2d 48, 54, cert.

21
denied, 510 U.S. 928 (1993); Walton, 256 Va. at 96, 501 S.E.2d

at 140.

Our comparison of the record in this case with the

records in capital cases, including capital cases in which

life sentences were imposed, fails to indicate that the death

penalty imposed here is excessive or disproportionate to the

penalty imposed in similar cases, considering both the crime

and the defendant. We have examined the records of all

capital cases reviewed by this Court pursuant to Code § 17.1-

313(E). See Swisher, 256 Va. at 488-89, 506 S.E.2d at 773.

XIII. CONCLUSION

Having reviewed the sentence of death and related

convictions, finding no reversible error in the record, and

perceiving no reason to commute the death sentence, we will

affirm the judgment of the trial court.

Record No. 982055 —Affirmed.
Record No. 982056 —Affirmed.

22