Swisher v. Commonwealth

Present: All the Justices

BOBBY WAYNE SWISHER
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record Nos. 980677 & 980678 November 6, 1998

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Thomas H. Wood, Judge

In these appeals, we review the capital murder

conviction, sentence of death, and related convictions imposed

upon Bobby Wayne Swisher.

I. PROCEEDINGS

On April 28, 1997, an Augusta County grand jury indicted

Swisher for the following offenses: capital murder of Dawn

McNees Snyder in the commission of abduction with the intent

to defile the victim of such abduction or in the commission of

or subsequent to rape or forcible sodomy in violation of Code

§ 18.2-31; abduction with intent to defile Snyder in violation

of Code § 18.2-48; rape of Snyder in violation of Code § 18.2-

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

67.1.

Swisher was tried before a jury and found guilty of the

charged offenses. The jury fixed Swisher's punishment at life

imprisonment for the abduction with intent to defile

conviction, life imprisonment for the rape conviction, and

life imprisonment for the forcible sodomy conviction. In the
penalty phase of the capital murder trial, the jury fixed

Swisher'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 Swisher in accord with the jury verdicts.

We have consolidated the automatic review of Swisher's

death sentence with his appeal of the capital murder

conviction. Former Code § 17-110.1(F). * Swisher's appeal of

his non-capital convictions was certified from the Court of

Appeals, former Code § 17-116.06, and was consolidated with

his capital murder appeal and given priority on our docket.

II. THE EVIDENCE

On February 5, 1997, Dawn McNees Snyder disappeared from

a florist shop where she worked in Stuarts Draft in Augusta

County. Her body was found on February 21, 1997, near a

riverbank about two miles from the florist shop. Animals had

eaten extensive portions of her face, neck, and upper chest,

and her identity was established by use of her dental records.

*
Effective October 1, 1998, Title 17 was superseded by
Title 17.1. As this appeal was briefed and argued prior to
the effective date of Code § 17.1-313, our review was

2
 On February 22, 1997, the defendant, age 20, was at an

apartment with two friends, one of whom was Clarence Henry

Ridgeway, Jr. Swisher told Ridgeway that Swisher had

abducted, raped, sodomized, and killed Snyder. Swisher

stated: "You know the woman, Dawn Snyder . . . I killed her."

Swisher related the following details to Ridgeway.

On February 5, 1997, about 7:15 p.m., Swisher's uncle

drove Swisher by car to a grocery store located near the

florist shop where Snyder worked. Swisher left the grocery

store and walked to the florist shop. Swisher entered the

shop, approached Snyder, and said, "I have a gun in my

pocket." Swisher showed Snyder a "butcher knife with ridges"

and directed her to go with him.

Swisher forced Snyder to leave the florist shop through a

rear door, and they walked for some distance until they

reached a field by the South River. Then, Swisher stopped

Snyder and told her to "suck his dick." He forced her to

perform an act of oral sodomy upon him, and he made her remove

her clothes. After he raped her, she put her clothes on, and

he forced her to perform another act of oral sodomy upon him.

Swisher decided to kill Snyder because she had "seen his

face." He "pulled out the butcher knife" that had "ridges

conducted pursuant to otherwise identical provisions of the
formerly applicable Code sections.

3
around the edge of the blade," and he "slit her across the

left side of the face and was holding her; then slit her

throat and then gouged her and then tossed her into a river."

He walked along the riverbank, watching her in the river,

asking her, "[a]re -- are you dead yet?" After Snyder floated

in the river for awhile, Swisher saw her "crawl up the bank."

Then, "he got scared and took off running straight to his

house from that field." Swisher threw his knife in the river.

When Swisher finished his confession to Ridgeway, Swisher

stated that "[i]t feels like [I] could do it again." The

following morning, Ridgeway informed the Augusta County

Sheriff's Office of Swisher's crimes.

On February 23, 1997, Sergeant William E. Lemerise,

Sergeant K.W. Reed, and two other deputies went to a house

where Swisher resided with his uncles, Paul H. Swisher and

William E. Swisher. Sergeant Reed advised Bobby Swisher that

he was a suspect in the murder of Dawn Snyder and asked if

Swisher would accompany the deputies to the Sheriff's Office

for questioning. Swisher, who did not object, accompanied the

deputies. Sergeant Lemerise informed Swisher that he would be

required to wear handcuffs while en route to the Sheriff's

Office because of a departmental policy which required that

the sheriff's personnel transport suspects in restraints for

safety considerations. Lemerise told Swisher that he would

4
have to wear these restraints even though he was not under

arrest.

When Swisher arrived at the Sheriff's Office, about 10:15

p.m., the handcuffs were immediately removed from him, and he

was taken to a "briefing room." The briefing room is an open

room with a coffee machine and a drink machine. There are no

bars on the windows or door locks in that room. Swisher was

permitted to smoke cigarettes, and he was given coffee.

Sergeant Lemerise explained to Swisher that he was not

under arrest, that he was a suspect, that the sheriff's

personnel were going to ask him some questions, and that he

was free to leave. Lemerise asked Swisher "how did he feel

about the fact that he could walk out of there if he chose to,

words to that effect . . . and [Swisher] appeared at that

point in time, although he was nervous . . . to be fine with

the situation."

Swisher spoke with the deputies, but did not confess to

the commission of any crimes until after he was arrested and

twice read his Miranda rights after midnight on February 24.

Swisher admitted, in an audiotaped confession, that he had

sodomized, raped, and murdered Snyder by cutting her throat.

He also stated that after he cut her throat, he threw her into

the South River.

5
 Dr. David Oxley, a medical examiner who performed an

autopsy on Snyder's body, was unable to render an opinion

about the specific cause of Snyder's death. He did state,

however, that it was an inescapable conclusion that Snyder's

death was the result of violent causes "probably related to

the neck." Dr. Oxley was not able to determine positively

whether the victim's throat had been cut because animals had

eaten her larynx, trachea, and the large arteries and veins

that were in her neck. The highest concentration of blood on

the victim's clothing appeared on a shirt around the neck area

extending onto the chest area.

Patricia Taylor, a forensic scientist in the Forensic

Biology Unit of the Western Regional Laboratory for the

Commonwealth of Virginia, qualified as an expert witness on

the subject of forensic DNA (deoxyribonucleic acid). She

examined some panties that were found on Snyder's body. Her

examination revealed that DNA consistent with Swisher's DNA

was found in semen deposited on Snyder's panties. Taylor

testified that the odds of the DNA found on Snyder's panties

belonging to someone other than Swisher were one in

380,000,000 in the Caucasian population.

Spots of blood were found on Swisher's coat. Taylor

testified that the DNA profile obtained from that coat is

consistent with the DNA profile of Snyder and different from

6
the DNA profile of Swisher. Taylor testified that the

probability of randomly selecting an individual unrelated to

Snyder who had a DNA profile consistent with the DNA on

Swisher's coat was approximately one in 1.3 billion in the

Caucasian population. Dr. Taylor testified that the DNA

profile obtained from spermatozoa heads extracted from the

victim's stomach and esophagus were consistent with Swisher's

DNA profile.

III. ASSIGNMENT OF ERROR PROCEDURALLY DEFAULTED

Swisher argues that the trial court erred in denying his

motion to "declare the Virginia capital murder and death

penalty statutes unconstitutional and to prohibit the

imposition of the death penalty." Swisher claims that

Virginia's death penalty statutes, "specifically . . . Code

§§ 19.2-2[6]4.2 through 19.2-264.5, [and former Code §§ 17-

110.1 and 17-110.2] . . . on their face and as applied,

violate the Eighth Amendment prohibition against cruel and

unusual punishment, the Sixth Amendment guarantee to a fair

trial, and the Fourteenth Amendment guarantee that no person

shall be deprived of life, liberty, or property without due

process of law." In support of his contentions, Swisher

merely refers this Court to a memorandum of law that he filed

in the trial court.

7
 We hold that Swisher'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); Jenkins v.

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

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

IV. ISSUES PREVIOUSLY DECIDED

Swisher raised certain issues on appeal which have been

decided adversely to his claims by our previous decisions. We

adhere to those rulings, and we will not discuss them further.

The issues previously resolved are:

(1) Whether the defendant should have been granted

additional preemptory challenges. See Strickler v.

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

denied, 502 U.S. 944 (1991); Quesinberry v. Commonwealth, 241

Va. 364, 371, 402 S.E.2d 218, 223 (1991), cert. denied, 502

U.S. 834 (1991); Spencer, 240 Va. at 84-85, 393 S.E.2d at 613;

Buchanan v. Commonwealth, 238 Va. 389, 405, 384 S.E.2d 757,

767 (1989), cert. denied, 493 U.S. 1063 (1990).

(2) Whether the trial court erred in denying the

defendant's request to mail a questionnaire to the potential

8
jury venire. See Goins v. Commonwealth, 251 Va. 442, 454, 470

S.E.2d 114, 122, cert. denied, 519 U.S. 887 (1996); Strickler,

241 Va. at 489-90, 404 S.E.2d at 232.

V. BILL OF PARTICULARS

Swisher filed a motion for a bill of particulars,

requesting that the trial court enter an order requiring the

Commonwealth:

"a) To identify the grounds, and all of them, on
which it contends that defendant is guilty of
Capital Murder under . . . Code § 18.2-31.

"b) To identify the evidence, and all of it, upon
which it intends to rely in seeking a conviction of
Defendant upon the charge of Capital Murder.

"c) To identify the aggravating factors, if any,
upon which it intends to rely in seeking the death
penalty, should defendant be convicted of Capital
Murder. Additionally:

"1) If the Commonwealth intends to prove
'vileness' as an aggravating factor, as set out
in . . . Code . . . § 19.2-264.4C, to identify
as many of the components of the factor,
including torture, depravity of mind, and
aggravated battery, on which it intends to
offer evidence.

"2) If the Commonwealth intends to prove
'vileness' as an aggravating factor, as set
out in . . . Code . . . § 19.2-264.4C, to
further identify every narrowing construction
of that factor on which it intends to offer
evidence.

"3) If the Commonwealth intends to prove
'future dangerousness' as an aggravating
factor, as set out in . . . Code . . . § 19.2-
264.4C and pursuant to . . . Code . . . § 19.2-
264.3:2, to identify any unadjudicated

9
 allegations of misconduct by defendant upon
which it intends to offer evidence and any
circumstances of the offense it contends are
relevant to proof of the factor.

"4) If the Commonwealth intends to prove
'future dangerousness' as an aggravating
factor, as set out in . . . Code . . . § 19.2-
264.4C and pursuant to . . . Code . . . § 19.2-
264.3:2, to further identify every narrowing
construction of that factor on which it intends
to offer evidence.

"d) To identify the evidence, and all of it, on
which it intends to rely in support of the
aggravating factors identified, and all other
evidence which it intends to introduce in support of
its contention that death is the appropriate
punishment for this Defendant."

Swisher essentially contends that the Commonwealth should

have been required to identify its evidence so that he could

have made pretrial challenges to the application of Virginia's

capital murder statute. Swisher also asserts that the

aforementioned bill of particulars was needed to: insure that

he would have effective assistance of counsel as guaranteed by

the Sixth Amendment; assist him in challenging the suppression

of certain evidence and; assist him in challenging the

constitutionality of the vileness and future dangerousness

factors in Code § 19.2-264.4, one of which must be established

before the death penalty may be imposed. We disagree with

Swisher.

"The purpose of a bill of particulars is to state

sufficient facts regarding the crime to inform an accused in

10
advance of the offense for which he is to be tried. He is

entitled to no more." Hevener v. Commonwealth, 189 Va. 802,

814, 54 S.E.2d 893, 899 (1949); accord Goins, 251 Va. at 454,

470 S.E.2d at 123; Quesinberry, 241 Va. at 372, 402 S.E.2d at

223, Strickler, 241 Va. at 490-91, 404 S.E.2d at 233. A

defendant is not entitled to a bill of particulars as a matter

of right. Quesinberry, 241 Va. at 372, 402 S.E.2d at 223.

Rather, Code § 19.2-230 states that a trial court "may direct

the filing of a bill of particulars."

The trial court's decision whether to require the

Commonwealth to file a bill of particulars is a matter that

rests within its sound discretion. Goins, 251 Va. at 454, 470

S.E.2d at 123; Quesinberry, 241 Va. at 372, 402 S.E.2d at 223.

The trial court did not abuse its discretion in denying

Swisher's motion. The indictment adequately informed Swisher

of the charged offenses, and we are of opinion Swisher did not

wish to use the bill to challenge the sufficiency of the

indictment, but, as he has admitted in his brief, he desired

the bill of particulars for other reasons.

Furthermore, Paragraphs B and D are simply demands for

pre-trial disclosure of the Commonwealth's evidence to be

introduced at trial and, as we have held, there is no general

constitutional right to discovery in a criminal case, even

when a capital offense is charged. See Strickler, 241 Va. at

11
490-91, 404 S.E.2d at 233. We do note that the Commonwealth,

as required by Code § 19.2-264.3:2, provided Swisher with

evidence of unadjudicated conduct that the Commonwealth

planned to use to establish his future dangerousness, and

Swisher does not claim that such information was not given to

him. Moreover, as the trial court observed, Swisher was

aware, well before trial, of the entirety of the

Commonwealth's evidence through the Commonwealth's undisputed

open file policy.

VI. DEFENDANT'S MOTIONS TO SUPPRESS

A.

Swisher filed a motion to suppress a confession that he

made to the deputies after he had been given his Miranda

warnings, and the trial court denied the motion. On appeal,

Swisher contends that his confessions were "made at a time

when he had not been advised of his rights to remain silent

and his right to counsel and were not made within the

guidelines of the standards set forth in Miranda v. Arizona,

384 U.S. 436 (1966)." We disagree with Swisher.

In Miranda, the Supreme Court held that an individual

must be warned before questioning by police of his right to

remain silent and his right to an attorney only when that

"individual is taken into custody or otherwise deprived of his

freedom by the authorities in any significant way and is

12
subjected to questioning. . . ." Id. at 478. The Supreme

Court subsequently explained in Oregon v. Mathiason, 429 U.S.

492, 495 (1977), that Miranda warnings are implicated only

during a custodial interrogation:

"Any interview of one suspected of a crime by a
police officer will have coercive aspects to it,
simply by virtue of the fact that the police officer
is part of a law enforcement system which may
ultimately cause the suspect to be charged with a
crime. But police officers are not required to
administer Miranda warnings to everyone whom they
question. Nor is the requirement of warnings to be
imposed simply because the questioning takes place
in the station house, or because the questioned
person is one whom the police suspect. Miranda
warnings are required only where there has been such
a restriction on a person's freedom as to render him
'in custody.' It was that sort of coercive
environment to which Miranda by its terms was made
applicable, and to which it is limited.”

We have also observed that Miranda warnings are not

required in every instance when a suspect is interrogated at a

police office. Coleman v. Commonwealth, 226 Va. 31, 47, 307

S.E.2d 864, 872 (1983), cert. denied, 465 U.S. 1109 (1984).

We have stated that "[i]t is the custodial nature rather than

the location of the interrogation that triggers the necessity

for giving Miranda warnings." Id. at 47, 307 S.E.2d at 872;

accord Burket v. Commonwealth, 248 Va. 596, 605, 450 S.E.2d

124, 129 (1994), cert. denied, 514 U.S. 1053 (1995); see

Beckwith v. United States, 425 U.S. 341, 346 (1976).

13
 Applying these principles, we hold that the deputies did

not violate Swisher's Miranda rights. Initially, we note that

Swisher did not make any incriminating statements between the

time he left his uncles' house and the time he was placed

under arrest at 12:05 a.m. on February 24. Before Swisher was

arrested, the deputies informed him that he was free to leave

the Sheriff's Office. After Swisher was arrested, he was

informed of his Miranda rights twice. The record reveals that

his confession was made knowingly, voluntarily, and

intelligently, Miranda, 384 U.S. at 475, and that his

confession was "the product of an essentially free and

unconstrained choice by its maker." Schneckloth v.

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

Commonwealth, 251 Va. 324, 340-41, 468 S.E.2d 98, 108, cert.

denied, 519 U.S. 951 (1996).

B.

Swisher filed a motion to suppress "all evidence, oral

and physical, including any statements made by [him], whether

prior to or subsequent to his arrest, and any property seized

as a result of the arrest, detention or interrogation of

[him]" and any property "seized by a warrantless search of the

premises occupied by [him], and any property or goods seized

by virtue of the search warrant for [his] body, which warrant

was issued . . . on [February 25, 1997]."

14
 Swisher contends that: his arrest was illegal; the

deputies unlawfully searched and seized certain items from the

house where he lived and; the deputies unlawfully searched his

person by obtaining pubic hair, head hair, and blood.

When the deputies went to Swisher's uncles' house, they

knocked on the door, and one of Swisher's uncles permitted the

deputies to enter. As we have already stated, the deputies

asked Swisher to accompany them to the Sheriff's Office, and

he voluntarily agreed to do so. As Swisher was about to leave

the house, one of the deputies asked Swisher if he would like

to take a jacket with him because it was cold outside. A

deputy helped Swisher put the jacket on.

At the Sheriff's Office, Sergeant A.C. Powers noticed a

few dark spots on Swisher's jacket, and he asked Swisher for

permission to test the jacket to determine whether the spots

were blood. Swisher replied, "[t]hat's all right with me,

because I don't know nothing about what you're talking about."

When the test showed that blood was present on the jacket,

Sergeant Lemerise asked Swisher for permission to send the

jacket to a forensic laboratory for further testing and

Swisher agreed.

While Swisher was still at the Sheriff's Office, some of

the deputies asked one of Swisher's uncles for permission to

search two large "burn barrels" which were on the uncles'

15
property. The uncle gave the deputies permission to search,

and they recovered several items from the barrels, including

burned sneakers and a green shirt.

On February 24, 1997, some deputies returned to Swisher's

uncles' house and asked William Swisher for permission to

search the premises. The deputies gave William Swisher a

consent form and told him that he did not have to consent to a

search. William Swisher gave the deputies permission to

search, and he signed the consent form.

We hold that the trial court did not err in denying the

defendant's motion to suppress the evidence because the

defendant's uncles gave the deputies consent to search the

house and the "burn barrels." We also note that none of the

items taken from the consensual search of the "burn barrels"

was admitted in evidence at Swisher's trial.

Additionally, the trial court did not err in refusing the

defendant's motion to suppress the jacket. Swisher gave the

deputies consent to test his jacket. The evidence of record

supports the trial court's finding that in each instance,

Swisher's consent was voluntary. See Gray v. Commonwealth,

233 Va. 313, 327, 356 S.E.2d 157, 164, cert. denied, 484 U.S.

873 (1987).

We do not consider Swisher's conclusional statement that

his arrest was illegal and, therefore, his pubic hairs, head

16
hairs, and blood were illegally seized. Swisher does not

assign as error that he was subject to an illegal arrest.

Thus, this argument is beyond the scope of any assignment of

error, and it is procedurally defaulted. Rule 5:17(c);

Burket, 248 Va. at 613, 450 S.E.2d at 133.

VII. VENUE

Swisher argues that the trial court erred in denying his

motion for a change of venue because the media coverage of his

crime was purportedly inflammatory and contained information

regarding his confession. Swisher asserts that these aspects

of the media coverage required a change of venue in order to

protect the rights afforded him under the Sixth Amendment of

the United States Constitution. We disagree.

There is a presumption that a defendant can receive a

fair trial from the citizens of the jurisdiction where the

crimes occurred. The defendant must overcome this presumption

by demonstrating that the feeling of prejudice on the part of

the citizenry is widespread and is such that would "be

reasonably certain to prevent a fair trial." Mueller v.

Commonwealth, 244 Va. 386, 398, 422 S.E.2d 380, 388 (1992),

cert. denied, 507 U.S. 1043 (1993) (quoting Stockton v.

Commonwealth, 227 Va. 124, 137, 314 S.E.2d 371, 380, cert.

denied, 469 U.S. 873 (1984) (citation omitted)). The decision

whether to grant a change of venue rests within the sound

17
discretion of the trial court. Roach, 251 Va. at 342, 468

S.E.2d at 109. The trial court's ruling whether to change

venue will not be disturbed on appeal unless the record

affirmatively shows an abuse of discretion. Mueller, 244 Va.

at 398, 422 S.E.2d at 388.

Extensive media coverage about an accused and his crimes

does not necessarily require a change of venue. Buchanan, 238

Va. at 407, 384 S.E.2d at 767-68. Additionally, a significant

factor that the trial court must consider is "the difficulty

encountered in selecting a jury." Mueller, 244 Va. at 398,

422 S.E.2d at 388.

Swisher did not overcome the presumption that he could

receive a fair trial in Augusta County, and the evidence of

record does not affirmatively show that the trial court abused

its discretion. Our review of the record reveals that the

trial court was able to empanel a jury with relative ease.

Swisher does not challenge on the appeal the seating of any

juror on the basis of pre-trial publicity. Thus, the trial

court did not abuse its discretion in denying Swisher's motion

for a change of venue.

VIII. VOIR DIRE

Swisher argues that the trial court erred in refusing to

permit him to ask certain questions to the jury panel during

voir dire. Swisher says that because his trial was

18
extensively covered by the media, he should have been

permitted to ask a wide range of questions to potential

jurors. We disagree with Swisher's contentions.

As we stated in LeVasseur v. Commonwealth, 225 Va. 564,

581, 304 S.E.2d 644, 653 (1983), cert. denied, 464 U.S. 1063

(1984), "[a] party has no right, statutory or otherwise, to

propound any question he wishes, or to extend voir dire

questioning ad infinitum. The court must afford a party a

full and fair opportunity to ascertain whether prospective

jurors 'stand indifferent in the cause,' but the trial judge

retains the discretion to determine when the parties have had

sufficient opportunity to do so." Swisher fails to identify

any questions that the trial court prohibited. Swisher's

conclusional contention does not specify how the trial court

abused its discretion, and he fails to demonstrate how he was

prejudiced by the trial court's rulings.

IX. DEFENDANT'S MOTION TO DISMISS THE INDICTMENT

Swisher asserts that the trial court erred by denying his

motion to dismiss the indictment charging him with capital

murder under Code § 18.2-31(1), which states in relevant part:

"The following offenses shall constitute
capital murder, punishable as a Class 1 felony:
1. The willful, deliberate, and premeditated
killing of any person in the commission of
abduction, as defined in § 18.2-48, when such
abduction was committed with the intent to extort

19
 money or a pecuniary benefit or with the intent to
defile the victim of such abduction;"

Swisher claims that the term intent "to defile" fails to

inform "a defendant or any person of ordinary intelligence of

what conduct makes him eligible for a death sentence through

commission of capital murder." Continuing, Swisher says that

the term intent "to defile" does not provide sufficient

guidance to the jury as it considers whether to impose the

sentence of death. Swisher claims that these purported

statutory deficiencies contravene his constitutional rights

under the Eighth and Fourteenth Amendments of the United

States Constitution.

We find no merit in Swisher's contentions. An act which

creates a statutory offense "must specify with reasonable

certainty and definiteness the conduct which is commanded or

prohibited . . . so that a person of ordinary intelligence may

know what is thereby required of him." Caldwell v.

Commonwealth, 198 Va. 454, 458, 94 S.E.2d 537, 540 (1956);

McCutcheon v. Commonwealth, 224 Va. 30, 35, 294 S.E.2d 808,

811 (1982). We have stated that the phrase intent "to defile"

is interchangeable, within the meaning of Code § 18.2-48, with

the phrase "sexually molest." Scott v. Commonwealth, 228 Va.

519, 525 n.2, 323 S.E.2d 572, 576 n.2 (1984); see Wilson v.

Commonwealth, 249 Va. 95, 103-04, 452 S.E.2d 669, 675, cert.

20
denied, 516 U.S. 841 (1995). We are of the opinion that a

person of ordinary intelligence would also conclude that the

term intent "to defile" is interchangeable with the phrase

intent to "sexually molest." Thus, we hold that the

indictment adequately informed Swisher of the charges against

him and that the jury would have concluded that the term

intent "to defile" was synonymous with the phrase intent to

"sexually molest."

X. ADMISSIBILITY OF EVIDENCE

As we have already stated, Patricia Taylor testified as

an expert witness on the subject of DNA on behalf of the

Commonwealth. During her direct examination, Taylor testified

that the DNA profile obtained from sperm found in Snyder's

rectum, vagina, esophagus, and stomach was consistent with the

mixture of DNA profiles of Swisher and Snyder, that sperm

found on the crotch of Snyder's panties was consistent with

Swisher's DNA, and that blood found on Swisher's coat was

consistent with the DNA profile of Snyder.

During cross-examination, Swisher attempted to examine

Taylor about "genetic material" found on a pillowcase which

had not been admitted in evidence. The Commonwealth objected

to the defendant's questions about the pillowcase on the basis

that the pillowcase had not been admitted in evidence, and the

pillowcase was not relevant to any issues at trial. The trial

21
court gave Swisher's counsel several opportunities to explain

to the court the relevance of the pillowcase. The trial court

ruled that Swisher's questions about the pillowcase were not

relevant because the pillowcase had not been admitted in

evidence, no chain of custody had been established which would

permit the admission of the pillowcase in evidence, and

testimony about the pillowcase would only be confusing to the

jury.

The decision to refuse or admit evidence based on

relevance rests within the discretion of the trial court, Beck

v. Commonwealth, 253 Va. 373, 384-85, 484 S.E.2d 898, 905,

cert. denied, ___ U.S. ___, 118 S.Ct. 608 (1997), and we hold

that the trial court did not abuse its discretion. Indeed,

Swisher's counsel was unable to demonstrate either in the

trial court or on brief why the questions about the pillowcase

were relevant to any issues at trial.

XI. JURY INSTRUCTIONS

Swisher proffered the following jury instructions which

were refused by the trial court:

"INSTRUCTION NO. R-1

"If you find that the defendant was so greatly
intoxicated by the voluntary use of alcohol and
drugs that he was incapable of deliberating or
premeditating, then you cannot find him guilty of
capital murder or murder in the first degree.

22
 "Voluntary intoxication is not a defense to
second degree murder or manslaughter."

"INSTRUCTION NO. Q

"You have been instructed on more than one
grade of homicide and if you have a reasonable doubt
as to the grade of the offense, then you must
resolve that doubt in favor of the defendant, and
find him guilty of the lesser offense."

"For example, if you have a reasonable doubt as
to whether he is guilty of capital murder or first
degree murder, you shall find him guilty of first
degree murder. If you have a reasonable doubt as to
whether he is guilty of first degree murder or
second degree murder, you shall find him guilty of
second degree murder or of voluntary manslaughter.
If you have a reasonable doubt as to whether he is
guilty at all, you shall find him not guilty."

Swisher, who stated in his confession to the deputies

that he had consumed crack cocaine and alcohol on the day of

the murder, argues that the trial court erred by refusing to

grant Instruction R-1. Swisher says that the trial court

erred by refusing to grant Instruction Q because "the evidence

was that [he] was on crack cocaine and one of the effects of

the drug is that it inflames the passions of the user."

Swisher's assertions are without merit. Generally,

voluntary intoxication is not an excuse for any crime. Wright

v. Commonwealth, 234 Va. 627, 629, 363 S.E.2d 711, 712 (1988).

We have stated that the only exception to this general rule is

in cases involving deliberate and premeditated murder. Id.

Even though it has long been the rule in this Commonwealth

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that a defendant may negate the specific intent requisite for

capital murder or first degree murder by showing that he was

so greatly intoxicated that he was incapable of deliberation

or premeditation, Essex v. Commonwealth, 228 Va. 273, 281-82,

322 S.E.2d 216, 219-20 (1984); Fitzgerald, 223 Va. at 631, 292

S.E.2d at 807; Giarratano v. Commonwealth, 220 Va. 1064, 1073,

266 S.E.2d 94, 99 (1980), "[v]oluntary immediate drunkenness

is not admissible to disprove malice or [to] reduce the

offense to manslaughter." Johnson v. Commonwealth, 135 Va.

524, 531, 115 S.E. 673, 676 (1923) (quoting Willis v.

Commonwealth, 73 Va. (32 Gratt.) 929, 926 (1879)).

We hold that the trial court properly refused the

defendant's proposed instructions because these instructions

contained incorrect statements of the law. The proposed

instructions would have permitted the jury to find the

defendant guilty of manslaughter because of his purported

voluntary intoxication, which is contrary to the common law of

this Commonwealth.

XII. SENTENCE REVIEW

Former Code § 17-110.1(C)(2) requires this Court to

review the imposition of the sentence of death imposed upon

Swisher, based on the trial record, to determine whether (i)

the sentence was imposed under the influence of passion,

prejudice, or any other arbitrary factor, or (ii) the sentence

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is excessive or disproportionate to the penalty imposed in

similar cases, considering both the crime and the defendant.

We observe that Swisher does not contend that the death

penalty was imposed under the influence of any of the above

factors prohibited by the statute, nor does he contend that

the sentence is excessive or disproportionate to the penalty

imposed in similar cases. Nevertheless, we have examined the

records of all capital cases reviewed by this court, pursuant

to former Code § 17-110.1(E). See Barnabei v. Commonwealth,

252 Va. 161, 179-80, 477 S.E.2d 270, 281 (1996), cert. denied,

__ U.S. __, 117 S.Ct. 1724 (1997); Breard v. Commonwealth, 248

Va. 68, 89, 445 S.E.2d 670, 682, cert. denied, 513 U.S. 971

(1994).

Upon review of these cases, as well as cases in which

life imprisonment was imposed, we hold that Swisher's sentence

of death is neither excessive nor disproportionate to

sentences generally imposed by other sentencing bodies in

Virginia for crimes of a similar nature. Furthermore, based

upon our review of the record, we find nothing that suggests

that Swisher's sentence of death was imposed under the

influence of passion, prejudice, or any other arbitrary

factor.

XIII. CONCLUSION

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 We find no reversible error in the issues presented here.

Having reviewed all Swisher's contentions and the imposition

of Swisher's sentence of death pursuant to former Code § 17-

110.1, we hold that the conviction of capital murder and

sentence of death will be affirmed, and we will also affirm

the judgments entered for Swisher's non-capital convictions.

Record No. 980677 - Affirmed.
Record No. 980678 - Affirmed.

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