Bramblett v. Commonwealth

Present: All the Justices

EARL CONRAD BRAMBLETT
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record Nos. 981394 February 26, 1999
981395

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ROANOKE COUNTY
Roy B. Willett, Judge

Near 4:30 a.m. on Monday, August 29, 1994, Dorothy Ross

McGee was operating a vehicle through the Town of Vinton in

Roanoke County en route to her place of employment. As she

drove past a two-story residence located at 232 East Virginia

Avenue, a white pickup truck operated by a white male, who was

alone, pulled onto the street from the area of the residence,

followed her briefly, and then "shot" past her, exceeding the

35-mile-per-hour speed limit.

About the same time, Robert Scott Arney, travelling on

Virginia Avenue past the home, "noticed a large cloud of smoke

coming across the highway, very thick." He determined the

residence was on fire and, using a radio, reported the fire to

authorities.

Firefighters and police responded to the scene. Upon

entering the burning residence, the authorities found four

bodies. In the downstairs living room, the body of Teresa Lynn

Fulcher Hodges, an adult, was on a couch. She had died from
ligature strangulation and had been doused with gasoline; the

body was still burning when discovered.

The body of William Blaine Hodges, an adult, was on the bed

in an upstairs bedroom. He had died from a gunshot to the left

temple. His body was not burned.

The bodies of two children were on a bed in another

upstairs bedroom. Winter Ashley Hodges, 11 years of age, had

died from two gunshots to the head; the muzzle of the weapon had

been pressed against the skin when fired. Winter's body had not

been burned.

The body of Anah Michelle Hodges, three years of age, was

in the same bed with her sister. She had died from two gunshot

wounds to the head; the muzzle of the weapon was within inches

of the skin when fired. Anah's body was "covered with soot" and

had sustained "mild burns."

The mother and her daughters died during the early morning

hours of August 29 and before the fire. Blaine, the children's

father, died "many hours before the female victims died,"

probably during the afternoon of Sunday, August 28.

On July 30, 1996, appellant Earl Conrad Bramblett, 54 years

of age, was indicted for the following offenses: Capital murder

of Winter as part of the same transaction as the murder of Anah,

Code § 18.2-31; the murders of Anah, Blaine, and Teresa, Code

§ 18.2-32; arson, Code § 18.2-77; and three counts of using a

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firearm in the commission of the murders, Code § 18.2-53.1.

Apprehended on July 30 in Spartanburg, South Carolina, the

defendant waived extradition. He was brought to Virginia and

held in the Roanoke County jail.

Upon pleas of not guilty, the defendant was tried by jury

during 14 days in October and November 1997. In the guilt and

penalty phases of the trifurcated trial, 98 witnesses testified.

The jury found defendant guilty of all charges, and during

the penalty phase of the capital proceeding, fixed defendant's

punishment at death based upon the vileness and future

dangerousness predicates of the capital murder sentencing

statute, Code § 19.2-264.4.

On December 16, 1997, following a post-trial sentencing

hearing during which the trial court considered a probation

officer's report, the court sentenced defendant to death for the

capital murder. The court also imposed sentences in the

noncapital cases in accordance with the jury's verdicts as

follows: For each of the three first degree murder convictions,

life imprisonment and a $100,000 fine; for the arson conviction,

life imprisonment and a $100,000 fine (the court suspended the

fine); and for the three firearms convictions, imprisonment for

13 years.

The death sentence is before us for automatic review under

former Code § 17-110.1(A) (now § 17.1-313(A)), see Rule 5:22,

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and we have consolidated this review with defendant's appeal of

the capital murder conviction. In addition, by order entered

July 13, 1998, we certified from the Court of Appeals of

Virginia to this Court the record of defendant's appeals in the

noncapital convictions (Record No. 981395). The effect of the

certification is to transfer jurisdiction over the noncapital

appeals to this Court for all purposes. Former Code § 17-

116.06(A) (now § 17.1-409(A)). We have consolidated those

appeals with the capital murder appeal.

As required by statute, we shall consider not only the

trial errors enumerated by defendant but also whether the

sentence of death was imposed under the influence of passion,

prejudice, or any other arbitrary factor, and whether the

sentence is excessive or disproportionate to the penalty imposed

in similar cases. Former Code § 17-110.1(C) (now § 17.1-

313(C)).

Initially, we shall dispose of two appellate issues that

require no extended discussion. First, defendant contends the

trial court erred by denying his motion to dismiss the capital

murder indictment on the grounds that Virginia's death penalty

statute is unconstitutional facially and as applied. He argues

the statute dealing with the capital sentencing proceeding is

unconstitutional because the aggravating factors "are vague and

do not adequately channel the discretion of the jury." There is

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no merit in this contention; we previously have rejected it in

other cases and will not revisit the issue here. See e.g.,

Smith v. Commonwealth, 219 Va. 455, 474-79, 248 S.E.2d 135, 146-

49 (1978), cert. denied, 441 U.S. 967 (1979).

Second, defendant contends the trial court erred "by

failing to dismiss the indictments due to prosecutorial

misconduct." According to Bramblett, the prosecutor withheld

evidence in violation of court orders and asked questions during

the trial "which he knew were objectionable." This assignment

of error is procedurally defaulted because defendant did not ask

the trial court to dismiss the indictments on the foregoing

grounds. We do not entertain such issues that are raised for

the first time on appeal. Rule 5:25.

A proper understanding of the remaining issues raised by

defendant requires a brief summary of the facts. The evidence

bearing upon the commission of these crimes is undisputed.

During the guilt phase of the trial, Bramblett, who did not

testify, presented only four witnesses. According to settled

principles of appellate review, we will draw all reasonable

inferences fairly deducible from the proven facts in the light

most favorable to the Commonwealth.

The witness Arney, upon discovery of the fire, found

handwritten notes on the rear and side doors of the home. The

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note on the side door read "Had an emergency. Back late Sunday,

early Monday. Teresa."

Upon arrival, the firefighters found fire throughout the

structure. Subsequent examination of the premises revealed the

presence of petroleum accelerants and gasoline in various areas

of the home. Investigators also found that the telephone line

had been cut.

Blaine and Teresa Hodges had attended an Amway conference

in Charlottesville on the previous Friday night, leaving their

children with a relative. Blaine picked up the children on

Saturday. A friend spoke with Blaine by telephone about 5:00

p.m. on Saturday. Later on Saturday, a friend telephoned the

Hodges' residence but no one answered and an answering machine

did not activate. About 4:30 p.m. on Sunday, Teresa left a

telephone message with a friend to arrange for the children's

carpool on Monday, the first day of the school session. The

friend returned the call and talked with Teresa at a number

Teresa furnished, which was for a public pay telephone located

at a gas station on Virginia Avenue.

On Sunday, a neighbor saw Bramblett with Teresa and the

children. Bramblett, Teresa, and the children were seen

together in a nearby national forest on Sunday afternoon; the

forest ranger who saw them noted a black tailgate on Bramblett's

white truck.

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 Another friend went to the Hodges' home at 7:15 p.m. on

Sunday; he found the note on the door. Two other friends went

to the Hodges' home at 8:45 p.m. on Sunday; they also found the

note on the door. They observed the Hodges' two motor vehicles

parked nearby, and the home was dark except for a light burning

in the basement. They telephoned the house but received no

answer and the answering machine did not take the call.

When the witness McGee observed the pickup truck with a

"dark" tailgate leave the Hodges' home about 4:30 a.m. on

Monday, she thought the truck's color was "sort of pinkish red."

The jury was shown a video reenactment of a truck leaving the

area where McGee had seen the truck; the reenactment included

the burning halogen street lights present when McGee saw the

truck. Referring to the video, McGee identified the truck as

pinkish-red; that truck actually was white in color. *

At the time of these crimes, Bramblett, an acquaintance of

the Hodges family for years, drove a 1972 model white pickup

truck with a black tailgate. On the morning of the fire,

Bramblett, an expert in silk screening, arrived at his workplace

at 5:08 a.m. The workplace is 4.7 miles from the Hodges' home,

a 12-minute drive in the early morning. Although defendant told

*
The defendant assigns error to the trial court's action in
admitting the video into evidence. The defendant did not object
at trial to the playing of the video, and that failure to
present the claim below bars review upon appeal. Rule 5:25.

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his supervisor he had slept in his truck, his hair was neatly

combed, he was freshly shaven, and his clothes were clean.

Bramblett drove past the Hodges' house at 8:30 a.m. on the

morning of the fire; he did not stop. Later, he told his ex-

wife about the fire and his belief that the police would "blame

it on me."

A year prior to the fire, Bramblett had mailed two packages

to his sister, who lives in Indiana. When these packages were

opened, with the sister's permission, they were found to contain

photographs of the Hodges children and 62 audiotapes of

Bramblett's voice. On the tapes, Bramblett expressed a sexual

interest in Winter Hodges and his belief that the child's

parents were trying to "set him up" or entrap him in a sexual

act with her.

A firearms expert testified about weapons, bullets, and

casings found at the crime scene, and cartridges found in

Bramblett's truck and a storage room he had rented. The expert

opined that all the bullets recovered from the bodies had been

fired from the same weapon, and that the rifling characteristics

were consistent with weapons manufactured by QFI Arminius; an

Arminius handgun, its barrel removed, was found in Blaine

Hodges' bedroom. The fact that the barrel had been removed made

it impossible for the expert to determine whether the pistol had

fired any of the recovered bullets. The expert further opined

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that one cartridge retrieved from the pistol at the scene and

one found in Bramblett's truck were fired by the same firearm

"to the exclusion of any other gun."

Another forensic scientist analyzed the chemical

composition of the bullets recovered. He testified that two of

the bullets retrieved from the victims had the identical

composition as a bullet found in the storage room. A cartridge

found on steps in the home was "analytically indistinguishable"

from a cartridge found in defendant's truck.

A single pubic hair, described as a "characteristically

Caucasian pubic hair," found on the bed between the two

children, was determined to microscopically match a sample of

Bramblett's pubic hair. Bramblett is white, as were the

victims. DNA testing of the hair matched Bramblett.

Tracy Turner, a convicted felon who had been incarcerated

with defendant at the Roanoke County jail testified about

conversations he had with Bramblett about their addictions.

Turner was addicted to drugs, and Bramblett said he was

"addicted to young girls."

They discussed the charges the two men faced. Bramblett

"said that he had been caught with that girl, the young girl,

and that he was caught downstairs with her and that the mother

sent them upstairs — sent her upstairs and that he had choked

the life out of her." According to Turner, Bramblett said he

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"walked around for a little bit and then he went upstairs. He

said he went first to the man's room and then he went to the

girls' room and he finished the business, took care of his

business."

Bramblett also told Turner about a "forensic science book"

from which he learned that "if you burn a house that it takes

the rifling off of bullets, destroys hair samples and things

like that." According to Turner, Bramblett said "that's the

reason" he set fire to the Hodges' home. Bramblett told Turner

his defense would be to suggest that the murders were "a drug

hit." The defendant offered evidence that in the late 1980s,

Blaine and Teresa Hodges consumed cocaine supplied by one

Michael Fulcher, Teresa's half-brother. During that period

Fulcher, who is presently incarcerated, was an undercover

"cooperative witness" for the federal Drug Enforcement

Administration. Blaine Hodges, a discharged postal service

employee, was about to begin serving a six-month jail sentence

in September 1994 for embezzlement of postal funds.

Initially, the police believed they were confronted with a

murder/suicide, mainly because of the location of the weapon

beside Blaine's body. This theory was abandoned quickly,

however, when the results of the autopsies showed Blaine died

hours before the rest of his family. The investigators also

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quickly concluded that the fire was not accidental but was "a

set fire."

The investigators wanted to talk to Bramblett because of

his friendship with the Hodges family. About 5:00 p.m. on the

day of the crimes, Bramblett came to the Vinton Police

Department in response to a telephone request from Sergeant Mark

A. Vaught, an investigator. Vaught told defendant the Hodges

family had been killed in a fire. He did not mention how the

victims died. At that point, defendant "seemed to appear to cry

for a period of time." Vaught saw no tears. Bramblett then

became angry and struck a file cabinet with his fist. A few

minutes later, after Vaught had been joined by Barry Keesee,

Special Agent, Virginia State Police, Bramblett, during a

discussion "just about some general things" said, "Are you going

to charge me with murder?"

Near 9:30 a.m. on Wednesday, August 31, William F. Brown,

Jr., Assistant Chief of Police for the Town of Vinton,

accompanied by Blaine Hodges' brother, talked with defendant at

the nearby Apple Valley Motel, where Bramblett had rented a

room. At first, Bramblett was calm and then he "became . . .

very emotional. He started crying, shaking real bad. He

blurted out, 'Go ahead and arrest me for murder.'" He said that

he thought about suicide and that he actually had written a

suicide note, according to Brown. After defendant "calmed

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down,” he promised to meet Brown at twelve noon at the Vinton

Police Department, but he failed to appear.

We shall now turn to the remaining issues defendant raises

on appeal. He contends the trial court erred by denying his

pretrial motion for a change of venue, claiming extensive media

coverage of the crimes and the charges against him. At

Bramblett's request, the trial court took the motion under

advisement pending selection of a jury. After the jury was

selected, the court denied the motion. The court did not err.

There is a presumption a defendant will receive a fair

trial in the jurisdiction where the crimes are committed. To

overcome the presumption, a defendant must establish that the

citizens of the jurisdiction harbor such prejudice against him

that it is reasonably certain he cannot receive a fair trial.

Kasi v. Commonwealth, 256 Va. 407, 420, 508 S.E.2d 57, 64

(1998). The decision whether to grant a motion for a change of

venue lies within the sound discretion of the trial court. Id.

Here, 68 potential jurors were questioned. Only seven

persons were excused because of fixed opinions about Bramblett

that would have impaired their ability to serve impartially.

The remaining persons were either unaware of media reports about

the crimes or clearly stated their ability to put aside any

information they may have heard or read.

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 The defendant did not overcome the presumption that he

could receive a fair trial in Roanoke County. There was no

abuse of discretion by the trial court, especially given the

ease with which the jury was selected. See id. at 420-21, 508

S.E.2d at 64-65.

Next, defendant contends the trial court erred by finding

that Bramblett was competent to stand trial. We do not agree.

In November 1996, Dr. Evan S. Nelson, a clinical

psychologist, was appointed by the trial court to serve as

defendant's mental health expert for sentencing. After Dr.

Nelson interviewed Bramblett in jail, he became concerned about

Bramblett's competency and suggested "that someone else perform

an evaluation."

In January 1997, defendant filed a pretrial motion,

pursuant to Code § 19.2-169.1, seeking a competency evaluation.

The statute provides for such an evaluation if "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 then appointed Dr. Joseph I. Leizer, a clinical

psychologist, to conduct a competency examination and

subsequently ordered defendant examined by Dr. Leigh D. Hagan,

another clinical psychologist.

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 In May 1997, the trial court heard the testimony of the

three psychologists and found that Bramblett was competent

stating, "I have no question about his competency."

Elaborating, the court said that "as a factual matter," the

defendant "has substantial capacity to understand these

proceedings against him, and he has substantial capacity to

assist his Attorneys in his own defense." These findings are

fully supported by the record.

Dr. Leizer diagnosed Bramblett with a "delusional disorder,

persecutory type." He testified defendant had "paranoid

delusions about how evidence is being manufactured against him."

The witness had interviewed Bramblett, listened to many of

Bramblett's audiotapes, and read some of the many letters

defendant had written. Defendant told the witness that the

police had been "following him for years on end and looking for

reasons to arrest him." Bramblett also believed, according to

the witness, that the Hodges family "were involved in an

undercover Police sting aimed at him" and that Winter was

working undercover for the police, being "used by her parents

for that purpose."

Dr. Leizer disagreed with Dr. Nelson's conclusion that

Bramblett was incompetent. Dr. Leizer said that Bramblett was

intelligent, witty, charming, verbal, and articulate; that he

was able to relate information to his attorneys; that he

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understood the charges facing him and the adversarial nature of

the proceedings; and that he felt his attorneys were working

hard for him, acting in his best interest.

Dr. Hagan agreed that Bramblett had a delusional disorder

of the persecutory type. However, he considered Bramblett

"meets the criteria for competence." He opined that defendant

"is keenly motivated to work vigorously" with his attorneys on

his defense, even though there are disagreements about "the

principal focus of the defense." Dr. Hagan agreed that even

though Bramblett "may have this paranoid delusion problem," it

"does not render him incompetent or unable to cooperate with his

Attorneys."

Next, defendant contends the trial court erred by denying

his motion to suppress the audiotapes seized in Indiana and by

admitting the tapes and their contents into evidence. When

Bramblett's sister received the two packages in August or

September 1993, she placed them, unopened, in a cabinet.

Bramblett called his sister in 1993 and asked her to keep the

boxes for him. He said, "In case anything happens to me, you'll

have these."

On September 2, 1994, defendant arrived at the sister's

home about 7:30 p.m. and left about 2:30 the next morning. He

told the sister the police had questioned him about the crimes

"and he felt that they were going to arrest him."

15
 Bramblett related "he was with the mother and the two

children and that they had gone for a long drive" the Sunday

afternoon before the fire. When they returned to the Hodges'

home from the drive, Teresa thought Blaine was not at home and

"she wondered where he was at," according to Bramblett.

Bramblett told his sister that he stayed at the Hodges' home

until twelve midnight on Sunday.

The sister overheard Bramblett talking with another sister

on the telephone; he stated that a Roanoke lawyer "had advised

him since he hadn't been charged with anything to leave town and

stay away from the police." Bramblett left the Indiana home

abruptly when the sister thought she "saw a policeman outside."

After Bramblett left, the sister was reminded by her

daughter about the boxes, which defendant had not mentioned.

She "was afraid to keep the boxes" and "wanted to put these

boxes in the hands of someone I could trust," according to the

sister's testimony. The local sheriff was called. The sister

and her husband executed a form consenting to the search of the

boxes. She opened the boxes; the sheriff inventoried and

photographed the contents.

In a pretrial motion, defendant moved to suppress the items

obtained from the boxes. He asserted the sister lacked

authority to deliver the packages to the police and that the

police were required to obtain a warrant before opening the

16
boxes and examining the contents. Defendant notes that the

"tapes contain inculpatory evidence, i.e., Bramblett's

inappropriate sexual thoughts and comments concerning Winter

Hodges, and reflect Bramblett's belief that Blaine Hodges was

involved in some sort of a conspiracy to frame Bramblett for

something."

The trial court denied the motion, ruling there was "no

evidence . . . to find a basis for unlawful search or seizure."

The trial court was correct.

The sister had boxes addressed to her in her exclusive

possession. Bramblett imposed no restrictions with respect to

the contents. Thus, he had no remaining expectation of privacy

in the items.

The Fourth Amendment does not restrict the authority of the

police to accept evidence volunteered by private citizens. See

Ritter v. Commonwealth, 210 Va. 732, 739, 173 S.E.2d 799, 804

(1970) (package addressed to son voluntarily surrendered by

mother in lawful control of it). The sister's consent to the

search of the boxes was clearly sufficient to authorize the

sheriff's actions.

Next, the defendant contends the trial court erred by

failing to grant his motion to suppress evidence obtained from

the Apple Valley Motel and by admitting the evidence at trial.

We do not agree.

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 When Bramblett failed to keep his twelve noon appointment

at the Vinton Police Department on Wednesday, August 31, the

police "had some concerns about his safety," given his earlier

statements about suicide. Two officers returned to the motel,

saw defendant's truck parked outside, knocked on the door to his

room, and received no response. Then, they directed the owner

to open the door to defendant's room. When the door was opened,

one officer "stepped into the doorway" of the small room while

the other officer stood "beside the door." Neither officer

actually entered the room. At that time, Bramblett arrived in a

taxicab and the officers "talked to him briefly."

Later that same day, two brothers of Blaine Hodges decided

to go to the motel to talk with Bramblett, believing the police

might "clear Earl." One of the men wore "a wire" at the

suggestion of the police. While in the room, one brother "saw a

.22 caliber bullet in the crease of [a] chair." The defendant's

room was searched the next day pursuant to warrant.

The trial court found that the officers saw nothing as they

were standing at the doorway to the room and that the

warrantless opening of the motel room door was not grounds for

suppression of the evidence seized pursuant to the later search

warrant. The trial court ruled correctly.

Even assuming one of the officers briefly entered the room,

as the defendant argues, no search was conducted and no evidence

18
was seized. The subsequent search was conducted pursuant to

warrant, which Bramblett never challenged.

Thus, the items seized under the warrant (certain writings,

a detective magazine, a .22 caliber revolver, cartridges, and

cartridge cases) were properly admitted in evidence. Also,

there is no merit to defendant's claim that the brother who wore

the "wire" became "an agent of the Commonwealth."

Next, defendant contends the trial court erred by

permitting Tracy Turner to testify at trial. We reject this

contention.

The prosecutor learned in January 1997 about Bramblett's

statements to the felon Turner and planned to use him as a

rebuttal witness at trial. In October 1997, the prosecutor was

advised that Bramblett "had figured out" Turner was going to

testify. Because of this development, the prosecutors believed

Turner's "value as a rebuttal witness" was "diminished." On

"Thursday or Friday" before Turner testified on Wednesday,

October 29, the prosecutor decided to call Turner as part of the

Commonwealth's case-in-chief. The prosecutor immediately

disclosed Turner's name and his criminal record to the

defendant.

Prior to Turner's testimony, defendant moved the court to

bar Turner from testifying in the Commonwealth's case-in-chief

because of late disclosure of Turner's criminal record. The

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trial court overruled the motion, stating the cross-examination

would be delayed if the defendant chose, thus giving defendant's

court-appointed investigator an opportunity to investigate

Turner.

Immediately following Turner's testimony, defendant moved

for a mistrial or for an instruction to the jury to disregard

the testimony. Defendant asserted the prosecutor's failure to

disclose Turner's criminal history violated the court's prior

discovery orders and due process. The prosecutor had

interpreted the discovery order to require disclosure of

criminal histories of only case-in-chief witnesses, an

interpretation endorsed by the trial court.

The trial court denied defendant's motion, accepting the

prosecutor's representation concerning Turner. The court found

that the prosecution "acted in a rather timely manner" in

providing the criminal history to defense counsel. The court

repeated its offer to grant defendant a delayed cross-

examination "if you learn more" about Turner.

Of course, defendant was entitled to disclosure of

exculpatory evidence, including evidence that impeaches the

credibility of a prosecution witness, under Brady v. Maryland,

373 U.S. 83, 87 (1963). Robinson v. Commonwealth, 231 Va. 142,

150, 341 S.E.2d 159, 164 (1986). Evidence of the prior

convictions of a witness is impeachment evidence under Brady.

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See Correll v. Commonwealth, 232 Va. 454, 465, 352 S.E.2d 352,

358, cert. denied, 482 U.S. 931 (1987).

A defendant is entitled to "sufficient time to investigate

and evaluate the evidence in preparation for trial." Lomax v.

Commonwealth, 228 Va. 168, 172, 319 S.E.2d 763, 765 (1984).

Here, the defendant had five or six days to investigate Turner's

background. The defendant did not take advantage of the court's

offer to postpone cross-examination, and he has not demonstrated

any specific prejudice from the timing of the disclosure. If

exculpatory evidence is obtained in time for it to be used

effectively by the defendant, and there is no showing that an

accused has been prejudiced, there is no due process violation.

Read v. Virginia State Bar, 233 Va. 560, 564-65, 357 S.E.2d 544,

546-47 (1987). Hence, we hold the trial court did not err in

its various rulings connected with Turner's testimony.

Next, Bramblett argues the pubic hair should not have been

admitted into evidence because, first, "the evidence was not

relevant," and, second, "the prejudicial effect of the evidence

far outweighed any probative value."

There is no merit to this argument. The evidence was

relevant to establish Bramblett's presence in the room where the

children's bodies were found. This legitimate probative value

far outweighed any incidental prejudice to defendant, and the

21
trial court did not abuse its discretion in admitting the

evidence.

Next, defendant argues "the evidence was insufficient to

support a conviction." We disagree.

The evidence supporting the convictions was overwhelming.

It was gathered as the result of outstanding police work by

town, county, state, and federal authorities.

A further recitation of the evidence we already have

summarized is unnecessary. Indeed, we have not recited many

facts pointing to defendant's guilt. It is sufficient to point

out that Bramblett admitted to a jail inmate that he killed the

victims and set the house on fire to destroy evidence. His many

statements to police and others clearly show his guilty

knowledge of the circumstances of the murders. He was with the

Hodges family just prior to the murders. A truck closely

resembling Bramblett's truck was observed leaving the scene as

the fire was discovered. Bullets, shell casings, and cartridges

found in Bramblett's possession matched similar items found in

the home. Defendant's audiotapes and writings demonstrate the

motive for the killings. His clothing, found at his workplace,

was stained with the same accelerants used in the arson. A

pubic hair matching Bramblett was found in the same bed as the

children's bodies. Clearly, the jury was fully justified, based

22
on the evidence, in concluding defendant was the killer of the

Hodges family and that he set their house on fire.

Finally, we have considered Bramblett's remaining

assignments of error, and summarily reject them. He contends

the trial court should have directed a verdict of life

imprisonment during the penalty phase of the capital murder

proceeding because the jury was misinformed about his prior

record in several respects. Also, he contends the evidence was

insufficient to support a finding of vileness and/or future

dangerousness, and that imposition of the death sentence was

arbitrary.

None of these contentions has any merit. We will respond,

however, to defendant's claim that during the penalty phase "all

of the factors used by the Commonwealth to enhance punishment

concern events that occurred two decades before the current

offenses and thus cannot be properly used as evidence of future

dangerousness."

Defendant is referring to the testimony of women who lived

in the Bedford-Roanoke area during the late 1970s. They

testified they knew Bramblett during that period, when they were

in their early teens. Each testified that Bramblett furnished

them alcohol and drugs, after which he engaged in sexual

intercourse with them, and that he required them to perform

various sex acts upon him. The "time gap" of decades affected

23
only the weight to be accorded the evidence, not its

admissibility. George v. Commonwealth, 242 Va. 264, 273, 411

S.E.2d 12, 18 (1991), cert. denied, 503 U.S. 973 (1992).

Moreover, the factual basis for defendant's contention is

inaccurate. There was abundant other evidence presented on the

question of future dangerousness including his recent conduct

with 11-year-old Winter Hodges as well as his extensive and

long-term planning and execution of the murders, all of which

established his dangerousness.

Upon the question of disproportionality and excessiveness,

we determine whether other sentencing bodies in this

jurisdiction generally impose the supreme penalty for comparable

or similar crimes, considering both the crime and the defendant.

Kasi, 256 Va. at 426, 508 S.E.2d at 68. See former Code § 17-

110.l(C)(2) (now § 17.1-313(C)(2)). In determining whether a

sentence of death is excessive or disproportionate in a case

like this, we examine the records of all capital murder cases

previously reviewed by this Court in which the death sentence

was based upon both the vileness and future dangerousness

predicates, including capital murder cases where a life sentence

was imposed. Jenkins v. Commonwealth, 244 Va. 445, 462, 423

S.E.2d 360, 371 (1992), cert. denied, 507 U.S. 1036 (1993).

Based upon this review, we hold that defendant's sentence

is not excessive or disproportionate to penalties generally

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imposed by sentencing bodies in the Commonwealth for similar

conduct. Generally, the death sentence is imposed for a capital

murder when, as here, the defendant is convicted of a senseless

murder of a young child, Clozza v. Commonwealth, 228 Va. 124,

138, 321 S.E.2d 273, 282 (1984), cert. denied, 469 U.S. 1230

(1985), and when the defendant is also convicted of killing

other persons. See Goins v. Commonwealth, 251 Va. 442, 469, 470

S.E.2d 114, 132, cert. denied, 519 U.S. 887 (1996).

Therefore, we hold the trial court committed no reversible

error, and we have independently determined from a review of the

entire record that the sentence of death was properly assessed.

Thus, we will affirm the trial court's judgment in both the

capital murder case and the noncapital cases.

Record No. 981394 — Affirmed.
Record No. 981395 — Affirmed.

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