Cherrix v. Commonwealth

Present: All the Justices

BRIAN LEE CHERRIX
OPINION BY JUSTICE ELIZABETH B. LACY
v. Record Nos. 981798 & 982063 February 26, 1999

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ACCOMACK COUNTY
Glen A. Tyler, Judge

In this appeal, we review the capital murder conviction

and death penalty imposed upon Brian Lee Cherrix, along with

his convictions for forcible sodomy, two counts of using a

firearm in the commission of a felony, and possessing a

firearm after being convicted of a felony.

I. Facts

On the night of January 27, 1994, 23 year-old Tessa Van

Hart was working as a pizza delivery person at a pizza

delivery restaurant on Chincoteague Island. A man telephoned

the restaurant and ordered a pizza to be delivered to an

address in the "Small Piney Island" area of Chincoteague.

Around 7:45 p.m., Van Hart left the restaurant to deliver the

pizza.

When Van Hart failed to return from the delivery, the

Chincoteague police were notified, and they began a search for

Van Hart. Shortly after midnight on January 28, the police

found Van Hart's vehicle behind a vacant home approximately
one mile from the Small Piney Island area. Van Hart's body

was found in the back seat.

An autopsy revealed that Van Hart died from two gunshot

wounds to the head. The autopsy also showed that she had been

sodomized and had suffered bruises and abrasions on her

forehead, cheek, nose, and mouth sometime around the time of

death. In the yard of the house to which Van Hart was to have

delivered the pizza on January 27, the police found two

bloodstains which DNA typing showed to be consistent with Van

Hart's blood.

The murder of Tessa Van Hart remained unsolved for over

two years. On June 3, 1996, however, Brian Lee Cherrix, who

was in the Accomack County Jail pending sentencing on

unrelated charges, contacted the Accomack County Sheriff,

Robert Crockett. Cherrix said that he had information

concerning the Van Hart murder that he would share with police

in return for leniency on his pending sentencing. Cherrix

told Crockett that his cousin, Robert Birch, III, had killed

Van Hart. Cherrix claimed that Birch had told him in February

1994 that he, Birch, had lured Van Hart to an unoccupied

residence by ordering a pizza, raped and shot her, and then

discarded the rifle used in the crime in a nearby creek.

Birch died in 1995.

2
 The state police began an underwater search of the creek

for the murder weapon. When Cherrix was informed that the

dive team had not recovered the rifle, he agreed to go to

Chincoteague to show the officers the location of the rifle

according to what Birch supposedly had told him. At the

search site, Cherrix directed Trooper Mark Fowler to the place

he claimed that Birch had told him he had thrown the rifle.

Fowler testified at trial that, while Cherrix maintained that

he was only relating facts imparted to him by Birch, Cherrix

would occasionally lapse into the use of the first person in

describing how and where the rifle came to be located in the

creek. The divers recovered a .22 caliber Marlin rifle at the

location indicated by Cherrix.

Later that same day, Cherrix was taken to the City of

Chesapeake, where he was interviewed by state police

investigator Lloyd Dobbs. After being advised of his Miranda

rights and signing a written waiver of those rights, Cherrix

gave several differing versions of the story Birch supposedly

had told him, all the while using hand and arm gestures to

demonstrate how Birch supposedly had disposed of the rifle.

Sheriff Crockett then took Cherrix back to Accomack County

Jail.

Although Birch had died in 1995, the police conducted an

investigation of his whereabouts on the night of the murder,

3
and they concluded that he was not a suspect in the Van Hart

murder. In August 1996, after having been sentenced on

unrelated charges to 20 years imprisonment with all but nine

years suspended, Cherrix was transferred to the custody of the

Virginia Department of Corrections to serve his sentence.

On April 16, 1997, Cherrix was returned to Accomack

County Jail on charges of uttering and grand larceny. During

the drive from Brunswick Correctional Center to the Accomack

County Jail, Chincoteague Assistant Police Chief Edward Lewis

interviewed Cherrix regarding the Van Hart murder. After

Lewis advised Cherrix of his Miranda rights and Cherrix agreed

to discuss the matter, Cherrix told Lewis yet a different

version of what he claimed had happened on the night of the

murder, still maintaining that Birch had committed the murder.

On April 17, 1997, counsel was appointed for Cherrix's

uttering and grand larceny charges. On April 25, 1997,

Cherrix submitted a written request to the Accomack County

Jail authorities asking to see Lewis. Lewis went to the jail

to see Cherrix. After Lewis advised Cherrix of his Miranda

rights and Cherrix reaffirmed that he wanted to speak with

Lewis, Cherrix confessed to the murder and sodomy of Van Hart.

Cherrix then accompanied Lewis and an Accomack County

sheriff's deputy to Chincoteague, where he directed the

4
officers on a tour of various locations that he had described

in his confession.

II. Proceedings

Cherrix was indicted for capital murder, forcible sodomy,

two counts of using a firearm in the commission of those

offenses, and one count of being a felon in possession of a

firearm. Code §§ 18.2-31, -67.1, -53.1, and -308.2. At the

conclusion of the guilt stage of a bifurcated jury trial

conducted pursuant to Code §§ 19.2-264.3 and –264.4, the jury

convicted Cherrix on all counts.

After hearing evidence on the issue of punishment, the

jury sentenced Cherrix to death for the capital murder, life

imprisonment for the forcible sodomy, a total of eight years

for using a firearm in the commission of those offenses, and

five years for possessing a firearm after being convicted of a

felony. Cherrix's death sentence was based upon the jury's

finding of both "future dangerousness" and "vileness." See

Code § 19.2-264.4. The trial court reviewed the presentence

report and victim impact statements and imposed all of the

sentences fixed by the jury.

Cherrix appeals his capital murder conviction, Record No.

981798. We have certified Cherrix's appeal of his non-capital

convictions from the Court of Appeals, Record No. 982063, and

have consolidated the two appeals.

5
 III. Issues Previously Decided

Cherrix filed a pre-trial motion asking the trial court

to declare the Virginia death penalty statutes

unconstitutional on a number of grounds. He also filed pre-

trial motions asking the trial court to allow the use of a

jury questionnaire, to allow individual sequestered voir dire,

and to supplement the trial court's voir dire with questions

submitted by defense counsel in order to ascertain possible

juror bias necessary to empanel an impartial jury. 1 He now

appeals the trial court's denial of those motions, raising

issues that we have considered and rejected in previous cases:

(1) Virginia's two statutory aggravating circumstances

of "future dangerousness" and "vileness" are not

unconstitutionally vague. Beck v. Commonwealth, 253 Va. 373,

387, 484 S.E.2d 898, 907, cert. denied, ___ U.S. ___, 118

S.Ct. 608 (1997)("vileness"); Clagett v. Commonwealth, 252 Va.

79, 86, 472 S.E.2d 263, 267 (1996), cert. denied, 519 U.S.

1122 (1997)("future dangerousness").

(2) Virginia's penalty-stage instructions adequately

inform the jury regarding the concept of "mitigation." Swann

1
The trial court actually granted Cherrix's request for
individually sequestered voir dire, but limited its inquiry to
the issues of "publicity and whether a juror would consider
the death penalty."

6
v. Commonwealth, 247 Va. 222, 228, 441 S.E.2d 195, 200, cert.

denied, 513 U.S. 889 (1994).

(3) The use of unadjudicated conduct to prove "future

dangerousness" without proof of such conduct beyond a

reasonable doubt is not unconstitutional. Goins v.

Commonwealth, 251 Va. 442, 453, 470 S.E.2d 114, 122, cert.

denied, 519 U.S. 887 (1996).

(4) Allowing, but not requiring, a trial judge to reduce

a sentence of death to life imprisonment on a showing of "good

cause" is not unconstitutional. Breard v. Commonwealth, 248

Va. 68, 76, 445 S.E.2d 670, 675, cert. denied, 513 U.S. 971

(1994).

(5) Consideration of hearsay evidence or information in

a presentence report during the sentencing phase of a capital

murder case is not unconstitutional. Goins, 251 Va. at 453,

470 S.E.2d at 122; O'Dell v. Commonwealth, 234 Va. 672, 701-

02, 364 S.E.2d 491, 507-08, cert. denied, 488 U.S. 871 (1988).

(6) The review provided by this Court on direct appeal

in capital cases is not unconstitutional. Mickens v.

Commonwealth, 252 Va. 315, 320, 487 S.E.2d 302, 306 (1996),

cert. denied, 520 U.S. 1269 (1997).

(7) Capital murder defendants do not have the

constitutional right to individual and sequestered voir dire

7
of prospective jurors. Stewart v. Commonwealth, 245 Va. 222,

229, 427 S.E.2d 394, 399, cert. denied, 510 U.S. 848 (1993).

(8) Capital murder defendants do not have the

constitutional right to require the trial court to mail a

questionnaire to all potential jurors. Strickler v.

Commonwealth, 241 Va. 482, 489-90, 404 S.E.2d 227, 232, cert.

denied, 502 U.S. 944 (1991).

We find nothing in Cherrix's arguments here that warrants

a change in our previous positions.

IV. Pre-Trial Issues

A. Failure to Suppress Cherrix's Confession

Prior to trial, Cherrix filed a motion asking the trial

court to suppress all of his statements to the police "on or

after June 7, 1996, in that on each and every occasion the

statements secured from the defendant, if any, were obtained

while the defendant was in custody and denied his right to

counsel."

At the suppression hearing, Cherrix testified that he

requested counsel in the presence of Sheriff Crockett on the

return trip from Chesapeake to Accomack on June 7, 1996, and

that he invoked his right to counsel when he was being

interrogated by Lewis on the trip from Brunswick Correctional

Center to Accomack County Jail on April 16, 1997. He admitted

that he had asked to speak with Lewis on April 25, but he

8
denied that Lewis advised him of his Miranda rights before

interrogating him on that date.

Sheriff Crockett testified that, while in Chesapeake on

June 7, 1996, Cherrix had been advised of his Miranda rights

and that he signed a written waiver. He also testified that

Cherrix never invoked his right to counsel or his right to

remain silent during the return trip to Accomack.

Lewis testified that on April 16, 1997, he advised

Cherrix of his Miranda rights, and that Cherrix elected to

speak to him. He denied that Cherrix, "at any time . . . on

April 16," requested counsel or otherwise indicated that he

wished to stop answering questions. Finally, Lewis testified

that when he went to see Cherrix at the Accomack County Jail

on April 25 pursuant to Cherrix's request, he again advised

Cherrix of his Miranda rights, and that Cherrix never

indicated on that date that he wished to have counsel present

or that he wished to stop answering questions.

Following the suppression hearing, the trial court denied

Cherrix's motion to suppress his confession. On appeal,

Cherrix claims that he clearly invoked his right to counsel on

April 16, that interrogations nevertheless continued without

counsel being provided, in violation of his Fifth Amendment

rights, and that the statements he made during those

interrogations were thus inadmissible. See Miranda v.

9
Arizona, 384 U.S. 436 (1966); Edwards v. Arizona, 451 U.S. 477

(1981). 2 Cherrix contends that the trial court's denial of his

motion to suppress the confession therefore constituted

reversible error. We do not agree.

Admissibility of a defendant's statements is an issue to

be decided by the trial court, which evaluates the credibility

of the witnesses, resolves any conflicts in the testimony, and

weighs the evidence as a whole. Watkins v. Commonwealth, 229

Va. 469, 477, 331 S.E.2d 422, 429 (1985), cert. denied, 475

U.S. 1099 (1986). Before admitting statements made by a

defendant during custodial interrogation, the trial court must

determine whether the defendant knowingly and intelligently

relinquished and abandoned his rights. See id. The trial

court's determination is the resolution of a question of fact

based on the totality of the circumstances, Schneckloth v.

Bustamonte, 412 U.S. 218, 226 (1973); Watkins, 229 Va. at 477,

331 S.E.2d at 430, and will not be disturbed on appeal unless

2
Although Cherrix does not explicitly argue that the
admission of his confession violated his Sixth Amendment right
to counsel, he does make repeated references to the fact that
counsel had been appointed to him on unrelated charges prior
to his being interrogated on April 25. However, as the
Commonwealth points out, the Sixth Amendment right to counsel
is charge-specific and does not "travel with a defendant and
attach [itself] to any other crimes . . . ." Eaton v.
Commonwealth, 240 Va. 236, 252, 397 S.E.2d 385, 394 (1990),
cert. denied, 502 U.S. 824 (1991).

10
plainly wrong. Jones v. Commonwealth, 228 Va. 427, 441, 323

S.E.2d 554, 561 (1984), cert. denied, 472 U.S. 1012 (1985).

Here, the record supports the trial court's admission

into evidence of Cherrix's statements to the police. Lewis

testified unequivocally that he read Cherrix his Miranda

rights on April 16 and April 25, and that Cherrix never asked

for counsel on either date. Cherrix testified to the

contrary; however, the trial court was in a position to

evaluate the credibility of witnesses and its decision to

accept Lewis' testimony and reject Cherrix's testimony is

amply supported by the record. See Watkins, 229 Va. at 477,

331 S.E.2d at 430.

B. Failure to Disclose Exculpatory Material

Prior to trial, the trial court accepted the

Commonwealth's assertion that all discovery requirements had

been satisfied and declined to rule on Cherrix's motion for

discovery. At that time, the Commonwealth had a written

statement from Cherrix's grandmother asserting that Cherrix

was at home on the night of Van Hart's murder and that he

placed a telephone call to his wife "around 8:00 o'clock or

so." The Commonwealth had not disclosed this written

statement to Cherrix.

At trial, Cherrix's grandmother testified as an alibi

witness for him and stated that Cherrix placed a telephone

11
call to his wife at 8:15 on the night of the murder and that

the call went on "a long while." On cross-examination, she

testified that she had been interviewed by a police officer,

but that she could not remember what she told the officer.

The Commonwealth subsequently called the interviewing officer

as a rebuttal witness and asked him to read the statement

signed by Cherrix's grandmother. Cherrix objected to the

admission of the statement, asserting that it contained

exculpatory material which should have been disclosed by the

Commonwealth prior to trial. See Brady v. Maryland, 373 U.S.

83 (1963). The trial court overruled Cherrix's objection and

admitted the written statement.

On appeal, Cherrix asserts that his knowledge of the

information contained in the statement does not excuse the

Commonwealth's failure to disclose the statement, but shows a

lack of good faith and violates the due process clause under

Brady. We disagree.

The disclosure requirement imposed by Brady applies to

material exculpatory evidence. Exculpatory evidence is

material if there is a reasonable probability that the outcome

of the proceeding would have been different had the evidence

been disclosed to the defense. United States v. Bagley, 473

U.S. 667, 682 (1985); Robinson v. Commonwealth, 231 Va. 142,

151, 341 S.E.2d 159, 164 (1986). In calling his grandmother

12
as an alibi witness, Cherrix demonstrated that he and his

counsel knew about and relied upon her testimony regarding his

presence at home on the night of the murder and the telephone

call he made to his wife. The content of her written

statement was, as he admits, "reasonably known" and

"consistent with the defense case."

The written statement of the grandmother's testimony did

not change the substance of the information known to the

defense, and the failure to disclose the fact that she had

executed a written version of her testimony did not deprive

Cherrix of material exculpatory information in violation of

Brady. See Castillo v. Johnson, 141 F.3d 218, 223 (5th Cir.),

cert. denied, ___ U.S. ___, 119 S.Ct. 28 (1998)(prosecution

has no obligation to produce information already known to

defense). Accordingly, the trial court did not err in

overruling Cherrix's objection and admitting the statement

into evidence.

V. Guilt Phase

A. Reading and Admission of Statement

During the Commonwealth's direct examination, Lewis

related the oral confession Cherrix made during their April 25

conversation. Lewis then testified that he briefly left the

room after Cherrix made the oral confession, with the

expectation that Cherrix would write out and sign a written

13
confession. When Lewis returned, however, Cherrix had not

done so.

Lewis testified that he then initiated "a question and

answer session" with Cherrix, in which he asked Cherrix

several questions concerning the murder, wrote down each

question as he had asked it, and then wrote down Cherrix's

response to each question "word for word." Lewis testified

that he then read Cherrix's answers back to him, and that

Cherrix acknowledged the accuracy of each written response

before Lewis would proceed to the next question. When all the

questions and answers were complete, Lewis asked Cherrix to

sign the document, but Cherrix refused.

After Lewis testified about the procedure used in the

"question and answer session," he then proceeded to read each

question and answer to the jury. Cherrix objected, taking the

position that, because the "question and answer" document was

not signed, it was "nothing more than a continuing oral

statement at which time the officer may have taken notes."

Cherrix asserted that since the document was merely Lewis'

notes of the conversation, Lewis should only be permitted to

refer to it to refresh his recollection, but not to read

directly from it.

The trial court overruled Cherrix's objection and

permitted Lewis to read each question and answer. Cherrix

14
then raised an objection to the admission of the document into

evidence as an exhibit, but the trial court deferred ruling

until after Lewis finished testifying. The Commonwealth moved

to admit the document following Lewis' direct examination, and

the trial court again deferred its ruling pending cross-

examination of Lewis by the defense. The record bears no

indication that the document was thereafter admitted as an

exhibit; however, the document was made a part of the record

because Cherrix attached it to a post-trial motion.

On appeal, Cherrix renews his argument that the "question

and answer" document is merely Lewis' notes. He asserts that

a document must be admitted into evidence as an exhibit if it

is to be read to the jury by a witness, and that the only

exception to this rule is the hearsay exception of "past

recollection recorded." Cherrix concludes that, because the

Commonwealth did not meet the foundational requirements for

introduction of "past recollection recorded" material, the

trial court erred by permitting Lewis to read from the

"question and answer" document. We disagree.

Contrary to Cherrix's assertion that the "question and

answer" document represented Lewis' notes, the trial court

found that the document represented Cherrix's own statements:

[I]n all of the other statements that have come
in in this case, they have been statements that
were oral and that were testified to by the

15
 witness primarily from memory with him from time
to time referring to notes to refresh his
recollection, but in this case it is a very
different set of circumstances. The witness has
stated that he specifically referred – that he
specifically wrote out a question. Specifically
asked a question. Specifically wrote down word
for word the answer and reviewed it with the
defendant. . . .

(Emphasis added.) As characterized by the trial court, then,

the "question and answer" document was elevated to the status

of a written confession.

There can be no question but that a written confession is

admissible into evidence. Confessions, whether oral or

written, are admissible against a criminal defendant under the

"party admission exception" to the hearsay rule. Quintana v.

Commonwealth, 224 Va. 127, 148, 295 S.E.2d 643, 654 (1982),

cert. denied, 460 U.S. 1029 (1983); Land v. Commonwealth, 211

Va. 223, 229, 176 S.E.2d 586, 590-91 (1970). This is true even

if the written confession is unsigned, as long as the defendant

understood and adopted its substance. Wong Sun v. United

States, 371 U.S. 471, 491 (1963)("The fact that the statement

was unsigned, whatever bearing this may have upon its weight

and credibility, does not render it inadmissible"). Because

the "question and answer" document was admissible as a

confession, the failure of the Commonwealth to lay a foundation

for its admission under the "past recollection recorded"

exception is irrelevant.

16
 Although the "question and answer" document could have

been admitted into evidence as an exhibit and would have been

the best evidence of Cherrix's confession, see McDaniel v.

Commonwealth, 183 Va. 481, 32 S.E.2d 667 (1945), Cherrix

objected to its admission as an exhibit at trial. Therefore,

he cannot now argue that the trial court erred in allowing the

confession to be admitted in secondary form – through Lewis'

reading it into evidence. For these reasons, there was no

error in the trial court's decision to permit Lewis to read

from the "question and answer" document during his testimony.

B. Motion to Set Aside the Verdict

Cherrix argues that the trial court erred in denying his

motion to set aside the verdict as contrary to the law and

evidence because the Commonwealth failed to prove the corpus

delicti beyond a reasonable doubt. We disagree.

In every criminal prosecution, the Commonwealth must

prove the element of corpus delicti, that is, the fact that

the crime charged has been actually perpetrated. Maughs v.

City of Charlottesville, 181 Va. 117, 120, 23 S.E.2d 784, 786

(1943). Further, if the accused has fully confessed that he

committed the crime, then only slight corroboration of the

confession is required to establish corpus delicti beyond a

reasonable doubt. Jackson v. Commonwealth, 255 Va. 625, 646,

499 S.E.2d 538, 551 (1998).

17
 Cherrix was charged with capital murder, forcible sodomy,

use of a firearm in the commission of those offenses, and

being a felon in possession of a firearm. Cherrix fully

confessed to having committed these crimes, and the record

reveals that the Commonwealth produced considerably more than

slight evidence to corroborate Cherrix's confession.

As discussed above, Van Hart's dead body was found with

two .22 caliber gunshot wounds to the head. The autopsy

revealed recent penetration of the anus and signs of blunt

force trauma to the head shortly before death. This evidence

sufficiently corroborates Cherrix's statements that he

sodomized Van Hart and shot her to death.

Furthermore, Christopher Fox, an acquaintance of Cherrix,

identified the .22 caliber rifle found by the police, at the

exact location indicated by Cherrix, as the rifle Fox had sold

to Cherrix. Cherrix's former wife also identified the rifle

as one Cherrix once owned. The Commonwealth also established

that Cherrix was a convicted felon at the time of the offense.

This evidence sufficiently corroborates the commission of the

firearm offenses. Accordingly, the trial court did not err in

denying Cherrix's motion to set aside the verdict.

C. Jury Instructions

At the conclusion of the guilt stage of the trial,

Cherrix proffered the following jury instruction:

18
 If you believe that Brian Lee Cherrix did not freely
and voluntarily give a statement to law enforcement
officers concerning his alleged involvement in the
sodomy and murder of Tessa Van Hart, then you may
give any such statement as much or as little
credibility as you deem appropriate.

The credibility and weight of any statements
presented to the jury as having been made by the
defendant are submitted for your consideration along
with all the other evidence. The weight, the
credibility, the sufficiency are questions for
determination by you the jury.

The trial court granted the second paragraph of the

instruction but refused to grant the first paragraph on the

ground that there was no evidence to support a conclusion by

the jury that Cherrix's statements to police were involuntary.

The trial court also granted a "general" instruction, advising

the jury of its role in assessing the credibility of witnesses

and the weight of evidence.

On appeal, Cherrix claims that a general instruction on

credibility was insufficient to properly inform the jury of

their role in assessing the voluntariness of Cherrix's

confession, and that, therefore, the trial court erred in

refusing his instruction regarding the voluntariness of his

statements to police. After reviewing the record, however, we

find no error in the trial court's denial of Cherrix's

proffered instruction.

While it is true that the trial court's pre-trial

determination that a defendant's statements are admissible in

19
evidence does not preclude the defendant from proving at trial

that those statements were made involuntarily, see Jackson v.

Commonwealth, 193 Va. 664, 674, 70 S.E.2d 322, 328

(1952)("Admissibility of confession is for trial court but its

weight and value are for the jury."), it is also well

established that a defendant is not entitled to a jury

instruction unless it is supported by more than a scintilla of

evidence. Commonwealth v. Donkor, 256 Va. 443, 445, 507

S.E.2d 75, 76 (1998).

Cherrix testified at a pre-trial suppression hearing that

the police had violated his Miranda rights; however, he

elected not to testify at trial, and the evidence presented to

the jury was undisputed that Cherrix's statements to police

were preceded by voluntary and intelligent waivers of those

rights. Furthermore, the trial court not only gave a

"general" instruction on the jury's role in assessing

credibility, but also granted the instruction contained in the

second paragraph above, which specifically relates to the

weight and credibility of statements "having been made by the

defendant." Accordingly, we conclude that the jury was

adequately apprised of its role, and that the trial court

properly refused Cherrix's proffered instruction.

VI. Sentencing Phase

A. Mental Health Expert

20
 Cherrix argues that the trial court erred in denying him

an adequate and competent mental health expert, as required by

Code § 19.2-264.3:1. That statute provides, in relevant part:

The mental health expert appointed pursuant to this
section shall be (i) a psychiatrist, . . . who has
successfully completed forensic evaluation training
as approved by the Commissioner of Mental Health,
Mental Retardation and Substance Abuse Services and
(ii) qualified by specialized training and
experience to perform forensic evaluations. The
defendant shall not be entitled to a mental health
expert of the defendant's own choosing . . . .

Code § 19.2-264.3:1(A). Cherrix claims that Dr. John Bulette,

the expert appointed by the trial court, did not possess the

qualifications required by the statute. Because the record

shows that Dr. Bulette was qualified under the statute,

however, we find no error in the trial court's appointment. 3

Cherrix filed a motion, pursuant to the statute,

requesting the appointment of a defense expert to assist him

in the capital sentencing phase of the trial. At a subsequent

hearing, Cherrix informed the trial court that he had inquired

into available experts, that he had "selected" Dr. Leigh Hagan

of Chesterfield County, and that he wanted the trial court to

appoint Dr. Hagan.

3
On appeal, Cherrix implies that the trial court's action
denied him rights under the United States Constitution. See
Ake v. Oklahoma, 470 U.S. 68 (1985). To the extent that he
attempts to make this argument, however, it is defaulted
because he did not object to Dr. Bulette's appointment on any

21
 The trial court subsequently informed counsel by

telephone that it had decided not to appoint Dr. Hagan because

of the distance between Chesterfield County and Accomack

County, and that it would instead appoint a local

psychiatrist, Dr. John Bulette. Without any objection, the

trial court then entered an order appointing Dr. Bulette.

Two days later, Cherrix filed a motion to reconsider the

matter and to appoint Dr. Hagan rather than Dr. Bulette, which

motion the trial court denied. At the hearing on that motion,

Cherrix conceded that Dr. Bulette was a psychiatrist who had

successfully completed his forensic evaluation training. He

contended, however, as he does now on appeal, that because Dr.

Bulette had never before been involved in a capital murder

case, he was not "qualified by specialized training and

experience to perform forensic evaluations," as required by

the statute.

Contrary to Cherrix's interpretation of Code § 19.2-

264.3:1(A)(ii), however, the statute does not require

experience in capital murder cases as a qualification for an

appointed expert. The relevant part of that statute simply

requires specialized training and experience to perform

forensic evaluations. The trial court was familiar with Dr.

constitutional basis at trial. Rule 5:25. Therefore, we
address only his statutory argument.

22
Bulette's background and specifically found that Dr. Bulette

had "substantial experience" in such evaluations. Cherrix

does not argue that Dr. Bulette lacked the training and

experience expressly required by the statute, and we decline

his invitation to graft onto the statute the additional

requirement of experience in capital murder cases.

Accordingly, we find no error in the trial court's appointment

of Dr. Bulette.

B. Corrections Expert and Witnesses

Cherrix sought to present evidence regarding prison life

and its effect on his "future dangerousness" through the

testimony of an expert penologist, several Virginia

corrections officials, a criminologist, a sociologist, and an

individual serving a life sentence in the custody of the

Virginia Department of Corrections. The trial court initially

granted Cherrix's motion for the appointment of an expert

penologist pending submission of a report and cost estimate.

The Commonwealth objected to the issuance of a subpoena for

the inmate and moved to quash the subpoenas issued for the

corrections officials, criminologist, and sociologist.

Following a hearing at which Cherrix proffered the

testimony of these witnesses, the trial court determined that

Cherrix's evidence was immaterial as mitigation evidence and

therefore refused to compel the witnesses' attendance through

23
subpoenas. The trial court vacated its prior order granting

Cherrix's motion for appointment of an expert on the basis

that the report was not timely filed, the cost estimate was

high, and the proffered testimony of the expert, like the

proffered testimony of the other witnesses sought, was

immaterial.

Cherrix argues that the trial court erred because Code

§ 19.2-264.4 allows presentation of mitigating evidence. He

contends that exclusion of his proffered "mitigation evidence"

was an abuse of discretion and violated his federal

constitutional rights as established in Skipper v. South

Carolina, 476 U.S. 1 (1986), and Eddings v. Oklahoma, 455 U.S.

104 (1982). We disagree.

Although the United States Constitution guarantees the

defendant in a capital case a right to present mitigating

evidence to the sentencing authority, it 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." Lockett v.

Ohio, 438 U.S. 586, 605 n.12 (1978). Code § 19.2-264.4(B)

vests the trial court with the discretion to determine,

subject to the rules of evidence governing admissibility, the

evidence which may be adduced in mitigation of the offense.

24
Coppola v. Commonwealth, 220 Va. 243, 253, 257 S.E.2d 797, 804

(1979), cert. denied, 444 U.S. 1103 (1980).

The record shows that the evidence Cherrix sought to

introduce involved the general nature of prison life. The

inmate's proffered testimony sought to establish, based on the

inmate's personal prison experience, what prison life would be

like for Cherrix if he received a life sentence. The

officials from the Department of Corrections would have

testified regarding the ability of the penal system to contain

Cherrix and the cost to the taxpayers of an inmate's life

sentence. Cherrix's counsel stated that the testimony of the

expert penologist, the sociologist, and the criminologist

would be similar to that of the inmate and corrections

officials. As the trial court observed, none of this evidence

concerns the history or experience of the defendant. 4 We agree

with the conclusion of the trial court that "what a person may

expect in the penal system" is not relevant mitigation

evidence. Accordingly, we will affirm the judgment of the

trial court excluding this evidence.

C. Post Trial-Offense Convictions

4
Contrary to Cherrix's assertion, none of the evidence
proffered at trial addressed Cherrix's ability to conform or
his experience in conforming to prison life, as the
defendant's evidence did in Skipper, 476 U.S. at 4.

25
 Cherrix filed a pre-trial motion to exclude from the

sentencing phase of the trial evidence of crimes he committed

after he committed the capital offense in January of 1994.

The trial court declined to rule on the motion because it was

premature. During the sentencing phase, the Commonwealth

offered as evidence two convictions that Cherrix received

after January 1994. We have already stated on two prior

occasions that evidence of "prior history" to establish future

dangerousness under Code § 19.2-264.4(C) encompasses the time

after which the subject offense was committed, Joseph v.

Commonwealth, 249 Va. 78, 88-89, 452 S.E.2d 862, 869, cert.

denied, 516 U.S. 876 (1995), and includes a defendant's most

recent history, Saunders v. Commonwealth, 242 Va. 107, 117,

406 S.E.2d 39, 45, cert. denied, 502 U.S. 944 (1991).

Accordingly, the trial court's admission of this evidence was

proper.

D. Failure to Properly Advise Jury on Parole Eligibility

Cherrix contends that the trial court erred in failing to

properly advise the jury of his eligibility, or lack thereof,

for parole. He claims that, because "future dangerousness"

was relevant to his sentencing, the trial court erred in

failing to inform the jury that Cherrix "would effectively

never be paroled." The record reveals, however, that Cherrix

26
has waived this argument for failure to object in the trial

court. Rule 5:25.

At the sentencing phase of the trial, Cherrix did not

offer a parole eligibility instruction. The issue of parole

eligibility did not arise until the jury foreman inquired of

the trial court, during deliberations, whether a life sentence

would include the possibility of parole. The trial court then

suggested to counsel that it should "instruct the jury that

they are to have no concern with parole." When the trial

court then asked Cherrix for his position on the matter,

Cherrix responded, "I would suggest that the court instruct

the jury as you have indicated. [The jury] should not be

concerned with parole . . . ." The trial court subsequently

instructed the jury that it "must decide whether to impose a

life sentence or the death penalty based upon the evidence and

the instructions that you have received and you are to give no

consideration to the issue of parole." Cherrix's failure to

proffer a parole eligibility instruction and his failure to

object to the trial court's instruction in response to the

jury's inquiry mentioned above precludes us from addressing

the merits of this assignment of error.

E. Aggravating Factors

A penalty of death may be imposed only if the

Commonwealth proves, beyond a reasonable doubt, that the

27
defendant would commit criminal acts of violence that would be

a continuing serious threat to society or 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. Code § 19.2-264.4(C). In this

case, the Commonwealth sought the death penalty based on both

of the aggravating factors, future dangerousness and vileness.

The jury returned a sentencing verdict making the required

findings under both factors. Cherrix contends that the death

penalty should not have been imposed because it was

"unreasonable" for the jury to conclude that Cherrix would be

a continuing serious threat to society, and because the

Commonwealth failed to prove that his actions in committing

the crime were outrageously or wantonly vile, horrible, or

inhuman as that term is defined by the statute. We disagree.

1. Future Dangerousness

Cherrix argues that because the jury was fully informed

of Cherrix's sentences for other crimes, it "could reasonably

expect" that Cherrix had "at best" a "remote" chance of ever

being released. Thus, asserts Cherrix, any danger Cherrix

might pose would be to the society within the prison, and a

"five-foot-four inch, small framed, light weight man does not

represent a danger to fellow inmates or guards."

28
 Not only is this argument based primarily on speculation,

it ignores the substantial evidence in the record of Cherrix's

continuing assaultive behavior for which he expressed little

remorse. Cherrix had a lengthy record of criminal convictions

including assault and battery, malicious wounding, and use of

a firearm. Furthermore, after the murder of Van Hart, Cherrix

shot his half-brother and, according to his own mental health

expert, had no remorse for the shooting. Cherrix had a

similar lack of remorse after he broke his mother-in-law's arm

with a pool cue. Cherrix told his mental health expert that

he "would say anything to obtain his goals." His expert

testified that Cherrix had an anti-social personality, was

"angry with women," and acted out this anger by assaulting

them. Finally, there is nothing in the record regarding

Cherrix's ability to conform to prison life and work

productively in that environment.

Our review of the record fully supports the jury's

determination that Cherrix would constitute a continuing

serious danger to society.

2. Vileness

The jury verdict found Cherrix's conduct in committing

the crime "outrageously or wantonly vile, horrible or inhuman

in that it involved torture or depravity of mind . . . ."

Cherrix argues that the record fails to support this finding

29
because there was no showing of depravity of mind beyond that

inherent in ordinary legal malice and premeditation, and

because there was no torture in that Van Hart died almost

instantaneously. Again we disagree.

The events surrounding the murder show that Cherrix

carefully planned his crime and lured his victim to a remote

area. According to the defendant's recitation of events,

after forcing her at gun point to partially disrobe and lie on

the ground, he forcibly sodomized her while holding a rifle to

the back of her head. Even though she "begged [him] not to

kill her" and promised that she would "act like this never

happened," he stood over her and shot her in the head for fear

that "she was going to tell on [him]." Not sure that the

first shot killed her, he "shot her again to make sure."

After the murder, Cherrix drove around with the victim's

body in the car, considered going to a restaurant for a beer,

and ultimately abandoned the car and victim at a deserted site

and tossed the murder weapon in a creek. He then went home

and called his wife at the hospital "like nothing ever

happened." Cherrix visited the funeral home to view his

victim's body and told the police that she looked "beautiful."

This evidence supports the jury's determination that

Cherrix's conduct in committing the sodomy and murder

30
constituted torture of Van Hart or reflected depravity of

mind.

VII. Statutory Review

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

whether the sentence of death was imposed "under the influence

of passion, prejudice or any other arbitrary factor," and

whether such sentence is excessive or disproportionate to

penalties imposed in similar cases, "considering both the

crime and the defendant." As to our first consideration,

Cherrix asserts that the death penalty was imposed under the

influence of passion, prejudice, or some other arbitrary

factor because the jury improperly found the aggravating

factors of future dangerousness and vileness. However, we

have already determined that these jury findings were

supported by the record. Our review of the record reveals no

support for the proposition that the jury imposed the death

sentence as a result of passion, prejudice, or any other

arbitrary factor.

In considering whether the sentence imposed in this case

is excessive or disproportionate to other sentences imposed

for similar crimes, we compare the record in this case with

records in other capital murder cases, including those in

which life sentences have been imposed. Since the jury based

its death sentence on both the future dangerousness and

31
vileness predicates, we give particular consideration to other

capital murder cases in which the death penalty was sought

based on both predicates.

When considering the penalty for convictions of capital

murder based on premeditated murder and rape/forcible sodomy,

juries in this Commonwealth have generally, although not

without exception, imposed the death sentence. Barnabei v.

Commonwealth, 252 Va. 161, 477 S.E.2d 270 (1996), cert.

denied, 520 U.S. 1224 (1997); Clozza v. Commonwealth, 228 Va.

124, 321 S.E.2d 273 (1984), cert. denied, 469 U.S. 1230

(1985); Coleman v. Commonwealth, 226 Va. 31, 307 S.E.2d 864

(1983), cert. denied, 465 U.S. 1109 (1984); Waye v.

Commonwealth, 219 Va. 683, 251 S.E.2d 202, cert. denied, 442

U.S. 924 (1979). The death sentence has been imposed in cases

where the victim, like the victim in this case, was killed

solely to assure her silence. Hedrick v. Commonwealth, 257

Va. ___, ___ S.E.2d ___ (this day decided); Justus v.

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

455 U.S. 983 (1982); Smith v. Commonwealth, 219 Va. 455, 248

S.E.2d 135 (1978), cert. denied, 441 U.S. 967 (1979). Based

on this review, we conclude that Cherrix's death sentence is

neither excessive nor disproportionate to penalties imposed by

other sentencing bodies in the Commonwealth for similar and

comparable crimes.

32
 VIII. Conclusion

We find no reversible error in the issues presented in

this case. After reviewing Cherrix's death sentence pursuant

to Code § 17-110.1, we decline to commute the sentence of

death. Therefore, we will affirm the judgment of the trial

court.

Record No. 981798 —Affirmed.
Record No. 982063 —Affirmed.

33