Kasi v. Commonwealth

Present: All the Justices

MIR AIMAL KASI
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record Nos. 980797 November 6, 1998
980798

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
J. Howe Brown, Judge

On Monday, January 25, 1993, near 8:00 a.m., a number of

automobiles were stopped in two north-bound, left-turn lanes on

Route 123 in Fairfax County at the main entrance to the

headquarters of the Central Intelligence Agency (CIA). The

vehicle operators had stopped for a red traffic light and were

waiting to turn into the entrance.

At the same time, a lone gunman emerged from another

vehicle, which he had stopped behind the automobiles. The

gunman, armed with an AK-47 assault rifle, proceeded to move

among the automobiles firing the weapon into them. Within a few

seconds, Frank Darling and Lansing Bennett were killed and

Nicholas Starr, Calvin Morgan, and Stephen Williams were wounded

by the gunshots. All the victims were CIA employees and were

operators of separate automobiles. The gunman, later identified

as defendant Mir Aimal Kasi, also known as Mir Aimal Kansi, fled

the scene.

At this time, defendant, a native of Pakistan, was residing

in an apartment in Reston with a friend, Zahed Mir. Defendant
was employed as a driver for a local courier service and was

familiar with the area surrounding the CIA entrance.

The day after the shootings, defendant returned to Pakistan.

Two days later, Mir reported to the police that defendant was a

"missing person."

On February 8, 1993, the police searched Mir's apartment and

discovered the weapon used in the shootings as well as other

property of defendant. Defendant had purchased the weapon in

Fairfax County three days prior to commission of the crimes.

On February 16, 1993, defendant was indicted for the

following offenses arising from the events of January 25th:

Capital murder of Darling as part of the same act that killed

Bennett, Code § 18.2-31(7); murder of Bennett, Code § 18.2-32;

malicious woundings of Starr, Morgan, and Williams, Code § 18.2-

51; and five charges of using a firearm in commission of the

foregoing felonies, Code § 18.2-53.1.

Nearly four and one-half years later, on June 15, 1997,

agents of the Federal Bureau of Investigation (FBI) apprehended

defendant in a hotel room in Pakistan. Defendant had been

travelling in Afghanistan during the entire period, except for

brief visits to Pakistan.

On June 17, 1997, defendant was flown from Pakistan to

Fairfax County in the custody of FBI agents. During the flight,

after signing a written rights waiver form, defendant gave an

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oral and written confession of the crimes to FBI agent Bradley J.

Garrett.

Following 15 pretrial hearings, defendant was tried by a

single jury during ten days in November 1997 upon his plea of not

guilty to the indictments. The jury found defendant guilty of

all charges and, during the second phase of the bifurcated

capital proceeding, fixed defendant's punishment at death based

upon the vileness predicate of the capital murder sentencing

statute, Code § 19.2-264.4.

On February 4, 1998, after three post-trial hearings, during

one of which the trial court considered a probation officer's

report, the court sentenced defendant to death for the capital

murder. Also, the court sentenced defendant to the following

punishment in accord with the jury's verdict: For the first-

degree murder of Bennett, life imprisonment and a $100,000 fine;

for each of the malicious woundings, 20 years' imprisonment and a

$100,000 fine; and for the firearms charges, two years in prison

for one charge and four years in prison for each of the remaining

four charges.

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, and

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

capital murder conviction. Former Code § 17-110.1(F) (now

§ 17.1-313(F)). In addition, by order entered April 23, 1998, we

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certified from the Court of Appeals of Virginia to this Court the

record in the noncapital convictions (Record No. 980798). That

record consists only of three notices of appeal from the

conviction order. No other effort has been made to perfect the

noncapital appeals; therefore, those convictions will be affirmed

and we shall not address them further.

In the capital murder appeal, we will consider, as required

by statute, not only the trial errors enumerated by the 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 disproportionate to the penalty

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

313(C)).

At the outset, we will discuss the number, nature, and

legitimacy of many issues raised by defendant. He assigned 92

errors allegedly committed by the trial court (placing 91 in his

opening brief) and has not argued many of them (Nos. 8, 14, 15,

17, 18, 20, 21, 25, 26, 28, 32, 45, 47, 52, 61, 69, 72, 77, 78,

80, 89, 91 and 92); hence, they are waived and will not be

considered. Jenkins v. Commonwealth, 244 Va. 445, 451, 423

S.E.2d 360, 364 (1992), cert. denied, 507 U.S. 1036 (1993).

In addition, defendant has effectively presented no

meaningful argument in support of many assignments that are

actually briefed. We have considered these so-called arguments

4
and find no merit in any of them. Weeks v. Commonwealth, 248 Va.

460, 465, 450 S.E.2d 379, 383 (1994), cert. denied, 516 U.S. 829

(1995). In this category are assignments 2, 5, 16, 19, 22, 23,

24, 29, 30, 33, 43, 51, 54, 73, and 87.

Also, other errors alleged (Nos. 6, 39, and 64) raise issues

we previously have decided adversely to the argument defendant

makes, and those decisions will not be revisited here. Typical

of this group is assignment of error 39: "The Circuit Court

erred in denying the defendant's motion to declare the Virginia

death penalty statute unconstitutional."

Finally, from our study of this entire record, including the

4,903-page appendix, we have determined that many assignments of

error that are argued in depth are devoid of any merit whatever.

These are: Nos. 1, 3, 7, 9, 10, 27, 31, 34, 37, 38, 40, 41, 42,

44, 46, 48, 49, 62, 63, 65, 67, 68, 71, 74, 75, 76, 79, and 88.

This group requires no extended analysis and mainly raises issues

involving the exercise of discretion by the trial judge on

subjects such as continuances, pretrial publicity, discovery, and

appointment or disqualification of counsel. Typical of this

group is assignment of error 49: "The Circuit Court erred in

denying defendant's motions for a continuance filed on August 11,

1997, and October 1, and October 8." We have considered this

entire group of alleged errors and reject them without any

further discussion.

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 The remaining 23 assignments of error raise issues, inter

alia, regarding defendant's apprehension, his confession,

suppression of evidence, jury selection, and juror conduct.

There is no conflict in the evidence relating to any of the facts

presented during the guilt phase of this trial; the defendant

presented no evidence.

Near 4:00 a.m. on June 15, 1997, Agent Garrett and three

other armed FBI agents, dressed in "native clothing," apprehended

defendant in a hotel room in Pakistan. Defendant responded to a

knock on the room's door and the agents rushed inside.

Defendant, who has "a master's degree in English," immediately

began screaming in a foreign language and refused to identify

himself. After a few minutes, defendant was subdued, handcuffed,

and gagged. Garrett identified him through the use of

fingerprints. During the scuffle, defendant sustained "minor

lacerations" to his arm and back.

When the agents left the hotel with defendant in custody, he

was handcuffed and shackled, and a hood had been placed over his

head. He was transported in a vehicle for about an hour to board

an airplane. During the trip, Garrett told defendant he was an

FBI agent.

The ensuing flight lasted "a little over an hour." After

the plane landed, defendant was transferred to a vehicle and

driven for about 40 minutes to a "holding facility" where he was

6
turned over to Pakistani authorities. The FBI agents removed

defendant's handcuffs, shackles, and hood when the group arrived

at the holding facility, but the persons in charge of the

facility put other handcuffs on him. Defendant was placed in one

of the eight cells in the facility, where he remained until the

morning of June 17.

During defendant's stay in the facility, the FBI agents

never left his presence or allowed him to be interrogated or

"harassed." He was allowed to eat, drink, and sleep. On two

occasions, the agents removed defendant from his cell to "look at

his back and look at his arm" and to take his blood pressure and

pulse. The agents did not interrogate defendant in the holding

facility and made certain he was treated "fairly and humanely."

On June 16, "late in the day," Garrett was advised by an

official at the U. S. Embassy in Pakistan that defendant would be

"released" the next morning. On June 17 near 7:00 a.m.,

defendant "was allowed to be released" from the facility in the

custody of the FBI agents. He was handcuffed, shackled, and

hooded during a 15-minute ride to an airplane. Once on the

plane, the hood was removed. Shortly after boarding the

aircraft, a physician checked defendant's "well being."

During the 12-hour flight to Fairfax County, Garrett first

conducted a "background" conversation with defendant, discussing

"his life in the United States, where he lived, where he worked."

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Garrett knew, from his four-and-one-half-year search for

defendant, that he was a Pakistani national. Defendant was not

a U.S. citizen and he had not returned to the United States after

he fled on January 26, 1993.

After the background conversation, Garrett advised defendant

of rights according to Miranda v. Arizona, 384 U.S. 436 (1966).

Defendant signed an FBI "Advice of Rights" form, after reading it

and having it explained to him. He indicated he was waiving his

rights and was willing to give a statement. The subsequent

interview lasted about one and one-half hours before defendant

signed a written statement summarizing the interview.

In the written statement, defendant confirmed he purchased

the AK-47 rifle and about 150 rounds of ammunition several days

before the incident in question. He said he drove his pickup

truck to the scene, "got out of my vehicle & started shooting

into vehicles stopped at a red light." Continuing, he stated

that "I shot approximately 10 rounds shooting 5 people. I aimed

for the chest area of the people I shot. I then returned to my

truck & drove back to my apartment." He also stated that

"several days before the shooting I decided to do the shooting at

the CIA or the Israeli Embassy but decided to shoot at the CIA

because it was easier because CIA officials are not armed."

As part of his oral statement to Garrett, defendant

enumerated political reasons "why he wanted to do this shooting."

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He said he was "upset" because U.S. aircraft had attacked parts

of Iraq, he was "upset with the CIA because of their involvement

in Muslim countries," and he was concerned with "killing of

Pakistanians by U.S. components." When Garrett asked defendant

"why he stopped shooting," he replied "there wasn't anybody else

left to shoot." When asked about the gender of those shot,

defendant replied "that he only shot males because it would be

against his religion to shoot females."

On appeal, defendant mounts several constitutional and other

attacks upon the trial court's refusal to suppress and the

court's admission in evidence of defendant's statement to

Garrett. First, defendant claims the statement was involuntary

and was obtained through coercion. We do not agree.

The evidence on the issue, presented both at a pretrial

suppression hearing and during the guilt phase of the trial, was

overwhelming and uncontradicted that defendant validly waived any

constitutional rights he may have had in connection with the

statement and that the statement was voluntary. No threats or

promises were made to defendant, either when he was apprehended

or aboard the aircraft, and he was not offered anything in return

for his statement. Defendant, who "had good command of the

English language," told Garrett that he "understood his rights

fully and completely." He never refused to answer any question,

and at no time during the 12-hour return flight did he express

9
any fear or indicate he was making a statement because he was

afraid. There is no evidence of coercion while he was detained

in Pakistan. Indeed, the FBI agents were careful to assure he

was treated humanely. The trial court's detailed findings of

fact that the waiver was knowing, voluntary, and intelligent and

that the statement was voluntary are fully supported by the

record. See Roach v. Commonwealth, 251 Va. 324, 340-41, 468

S.E.2d 98, 108, cert. denied, 519 U.S. 951 (1996).

Next, defendant, attacking the jurisdiction of the trial

court, contends that "either the Extradition Treaty between the

United States and Pakistan or the Vienna Convention for Consular

Relations were violated" requiring "sanctions" to be imposed for

these alleged violations. He argues the "abduction/seizure of

Kasi was conducted outside and in express violation of the

Extradition Treaty between the United States and Pakistan and

without invoking the procedures set out by the laws of each

country" and was contrary to law. He says the "sanction" for

violation of the treaty should be reversal of the capital murder

conviction and "repatriation to Pakistan without prejudice for a

new trial."

Continuing, he argues the "record shows that at no time did

the Federal agents advise Kasi of his right to consult with a

Pakistani diplomat pursuant to Article 36(1) of the Vienna

Convention on Consular Relations." He says "that suppression of

10
all statements obtained by virtue of this illegal arrest and

abduction in violation of the extradition treaty . . . and the

violations of the Vienna Convention is the appropriate

alternative sanction to enforce treaty rights violated." We

reject the arguments based on the treaty and the "Vienna

Convention."

During a pretrial hearing, the Commonwealth's Attorney

stipulated that defendant was arrested in Pakistan by an FBI

agent; that the agent did not "have any jurisdiction in the

nation of Pakistan;" that defendant "was not taken before a

judicial officer . . . until he returned to the United States and

was presented before this Court"; that "in the course of time

from his arrest until he was brought to this country there was no

compliance with the Vienna Convention until my letter of July

3rd"; and that "the seizure in Pakistan was not made pursuant to

any Pakistani paper or document which would allow him to be

seized under the laws of Pakistan." The record shows there "was

an unlawful flight warrant issued by a U.S. Magistrate in

Alexandria in February of 1993 authorizing Federal agents to

arrest Mr. Kansi." Also, the record shows that the July 3 letter

mentioned in the stipulation was a letter from the prosecutor

formally notifying the defense of defendant's right to seek

consular assistance.

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 The defendant relies upon an Extradition Treaty between the

United States and the United Kingdom. 47 Stat. 2122 (1931).

Apparently, there is no extradition treaty directly between the

United States and Pakistan. But the Attorney General is willing

to assume, as represented by the defendant, that the "Islamic

Republic of Pakistan has continued in force the treaty

promulgated between its former colonial sovereign, the United

Kingdom, and the United States," and that it applies to this

case.

The defendant focuses on Article 8 of the treaty, which

provides:

"The extradition of fugitive criminals under the
provisions of this Treaty shall be carried out in the
United States and in the territory of His Britannic
Majesty respectively, in conformity with the laws
regulating extradition for the time being in force in
the territory from which the surrender of the fugitive
criminal is claimed."

Contrary to defendant's contention, nothing in this treaty

can be construed to affirmatively prohibit the forcible abduction

of defendant in this case so as to divest the trial court of

jurisdiction or to require that "sanctions" be imposed for an

alleged violation of the treaty. The decision on this issue is

controlled by United States v. Alvarez-Machain, 504 U.S. 655

(1992).

There, the respondent, a citizen and resident of Mexico, was

forcibly kidnapped from his home and flown by private plane to

12
Texas, where he was arrested for his participation in the

kidnapping and murder of a federal Drug Enforcement

Administration (DEA) agent and his Mexican pilot. DEA agents

were "responsible" for the abduction, although they were not

personally involved in it. Id. at 657. The United States has an

extradition treaty with Mexico. The issue in the case was

"whether a criminal defendant, abducted to the United States from

a nation with which it has an extradition treaty, thereby

acquires a defense to the jurisdiction of this country's courts."

Id.

The Supreme Court, answering that query in the negative,

said: "Extradition treaties exist so as to impose mutual

obligations to surrender individuals in certain defined sets of

circumstances, following established procedures." Id. at 664.

The Court held that the treaty's language, "in the context of its

history," failed to support the proposition that the treaty

expressly prohibited abductions outside its terms. Id. at 666.

The Court went on to hold that the treaty should not be

interpreted to include an implied term prohibiting prosecution

where a defendant's presence is obtained by means other than

those established by the treaty. Id. at 666, 668-69. See Ker v.

Illinois, 119 U.S. 436 (1886) (criminal defendant forcibly

abducted from Peru to United States had no right to be returned

13
to this country only in accordance with terms of extradition

treaty between United States and Peru).

In the present case, as in Alvarez-Machain and Ker,

defendant's seizure in a foreign country and his return to this

country were not accomplished pursuant to an extradition treaty.

The treaty language here does not expressly or impliedly prohibit

prosecution in the United States where the defendant's presence

was obtained by forcible abduction. Like the treaty in Alvarez-

Machain, this treaty "does not purport to specify the only way in

which one country may gain custody of a national of the other

country for the purposes of prosecution." Id. at 664. In sum,

defendant was not "extradited" under the provisions of this

treaty.

As a corollary to the treaty argument, defendant contends

his seizure was "illegal and unreasonable" in violation of the

Fourth Amendment to the U.S. Constitution and the equivalent

Article I, § 10 of the Constitution of Virginia. We do not

agree.

In United States v. Verdugo-Urquidez, 494 U.S. 259, 266

(1990), the Supreme Court held: "The available historical data

show . . . that the purpose of the Fourth Amendment was to

protect the people of the United States against arbitrary action

by their own Government; it was never suggested that the

provision was intended to restrain the actions of the Federal

14
Government against aliens outside of the United States

territory." The Court also said, "There is likewise no

indication that the Fourth Amendment was understood . . . to

apply to activities of the United States directed against aliens

in foreign territory or in international waters." Id. at 267.

We now turn to defendant's reliance on Article 36(1) of the

Vienna Convention on Consular Relations and Optional Protocol on

Disputes (Vienna Convention), 21 U.S.T. 77, T.I.A.S. No. 6820

(Apr. 24, 1963), and his claim that its alleged violation

requires suppression of his confession. Defendant conceded in

the trial court there is no reported authority for the idea that

a violation of the treaty creates any legally enforceable

individual rights. And, the provisions of the document create no

such rights. Indeed, the preamble states that the "purpose . . .

is not to benefit individuals but to ensure the efficient

performance of functions by consular posts on behalf of their

respective States." Article 36 merely deals with notice to be

furnished to the consular post of a national's state when the

national is arrested or taken into custody in a foreign state.

In the present case, it makes no sense to say that, when the

defendant was arrested in Pakistan and turned over to Pakistani

authorities, the Vienna Convention required defendant to be

notified of his right to contact Pakistani consular officers,

even if that country maintained a "consulate" within its own

15
borders. Indeed, the prosecutor, as soon as defendant returned

to this country, notified the defense that defendant had the

right to contact the Pakistani consulate here.

Finally on this issue, defendant's suggestion that if he had

been advised of his so-called rights under the Vienna Convention,

he would not have confessed to agent Garrett is just as

speculative as the theory of "prejudice" that the Supreme Court

recently rejected in Breard v. Greene, ___ U.S. ___, 118 S.Ct.

1352, 1355 (1998) (repudiating claim that if Vienna Convention

had not been violated defendant would have accepted alleged plea

agreement).

Next, defendant challenges the admissibility of an arguably

inculpatory statement he made to a Fairfax County deputy sheriff

and asserts that such a claim is encompassed by assignments of

error 4 and 83. Those assignments, however, challenge

defendant's statements to federal authorities following his

apprehension in Pakistan. None of defendant's assignments of

error raises the issue argued; thus, it is procedurally

defaulted. Rule 5:17(c).

Next, defendant contends the trial court erred when it

refused to suppress the contents of a suitcase found during a

search of the apartment where defendant concealed the murder

weapon. We disagree.

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 The record clearly establishes that Zahed Mir, defendant's

roommate and the lessee of the apartment, consented to the search

of a suitcase found in a hall closet within the apartment. Two

handguns and magazines of AK-47 ammunition were found in the

suitcase and eventually were received in evidence. The

investigating police officer testified that he had received Mir's

"verbal consent several times" to open the suitcase. The trial

court correctly concluded, under the evidence, that Mir had the

authority to give permission to the officer "to look in" the

suitcase, rendering the search valid.

Next, defendant contends the trial court erred in denying

his motion for a change of venue. Defendant asserts there were

"inflammatory and inaccurate media reports" with "all three local

newspapers" reporting that defendant had confessed to the crimes.

Arguing that repeated inflammatory pretrial media reports mandate

a change of venue, defendant says his constitutional right to a

fair trial in this case was violated by refusal of his motion.

We do not agree.

There is a presumption that a defendant will receive a fair

trial in the jurisdiction where the crimes were 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."

Lilly v. Commonwealth, 255 Va. 558, 570, 499 S.E.2d 522, 531

17
(1998). The decision whether to grant a motion for a change of

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

In the present case, even though virtually all the

prospective jurors indicated they had heard or read about the

case, the court, after careful voir dire, seated a panel of 24

jurors, following detailed questioning of only 58 persons.

Defendant did not overcome the presumption that he could receive

a fair trial; there was no abuse of discretion by the trial

court, especially in light of the relative ease with which the

jury was selected. See Roach, 251 Va. at 342-43, 468 S.E.2d at

109.

Next, the defendant contends that the prosecutor, for

discriminatory reasons, used a peremptory strike to remove juror

14, the "only juror of any color on the panel," according to

defendant, in violation of Batson v. Kentucky, 476 U.S. 79

(1986), and that the trial court erred in ruling to the contrary.

We disagree.

Responding to the claim, the Commonwealth's Attorney

represented to the trial court he had struck the juror "because

she was the only member of the entire panel who never read

anything about the case or heard anything about the case. My

fear is somebody like that is kind of detached from the real

world, and that's why I struck her." The trial court accepted

this explanation, and properly denied defendant's claim.

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 Batson dictates that purposeful discrimination based upon

race in selecting jurors violates the Equal Protection Clause.

Once an accused makes a prima facie showing of such

discrimination, a prosecutor must furnish a reasonable

explanation in rebuttal, showing that the reason for the

peremptory strike was race neutral. If the explanation is based

upon factors other than the juror's race, it is deemed to be race

neutral. Id. at 89. Accord Wright v. Commonwealth, 245 Va. 177,

186, 427 S.E.2d 379, 386 (1993), vacated on other grounds, 512

U.S. 1217 (1994).

Assuming, without deciding, that defendant established a

prima facie case of purposeful discrimination under Batson, we

hold that the record supports the trial court's conclusion that

juror 14 was not struck from the panel because of her race.

Striking a juror because she had not even read or heard anything

about a well-publicized case clearly is a race-neutral reason.

See Spencer v. Murray, 5 F.3d 758, 763-64 (4th Cir. 1993)

(prosecutor entitled to strike potential juror if he found it

"odd" that juror had heard nothing about highly publicized case),

cert. denied, 510 U.S. 1171 (1994).

Next, defendant argues that the evidence was insufficient to

support his capital murder conviction. Defendant notes that to

find him guilty of Darling's capital murder, the Commonwealth had

to prove that Bennett's killing was murder in the first degree.

19
Code § 18.2-31(7) ("willful, deliberate, and premeditated killing

of more than one person as a part of the same act or transaction"

constitutes capital murder). Defendant contends that his murder

of Bennett can rise no higher than murder in the second degree

because the Commonwealth failed to prove he intended to kill

Bennett. We reject this contention.

As the Attorney General points out, the evidence is

undisputed that defendant deliberately shot Bennett twice in the

chest at extremely close range with a high-powered assault rifle.

In his confession, defendant stated not only that he planned and

carried out the attack with premeditation and without any

provocation, but also that he deliberately aimed his weapon at

the victims' chests. This evidence establishes as a matter of

law that Bennett's murder was intentional.

Next, defendant contends the trial court erred in denying

his motion to "preclude" the testimony of Frank Darling's wife in

the penalty phase after she had testified during the guilt phase

of the trial. Defendant argues, "In this instance," calling for

the second time the murder victim's wife to give victim impact

testimony violates "the due process standard of fundamental

fairness." We do not agree.

Mrs. Darling was a front-seat passenger in the automobile

driven by her husband at the time of his murder. She testified

during the guilt phase about the events surrounding the

20
shootings. During the penalty phase, she testified only about

the substantial impact of her husband's murder upon her life.

This is the type of victim impact testimony approved in Payne v.

Tennessee, 501 U.S. 808, 827 (1991), and in Weeks, 248 Va. at

476, 450 S.E.2d at 389-90, and the trial court correctly refused

to exclude it.

Next, defendant contends the trial court erred in failing to

sustain his "motion to strike the evidence as to vileness and

future dangerousness," both of which issues were submitted to the

jury in proper instructions. The defendant apparently does not

argue the evidence was insufficient to establish that Darling's

murder was vile, in that it involved "depravity of mind or

aggravated battery to the victim," Code § 19.2-264.4(C). He

admitted during oral argument there was "sufficient evidence to

reach the jury on the question of vileness." Instead, he argues:

"The trial court's failure to strike the evidence as to future

dangerousness was a structural error that unfairly prejudiced

Kasi in the sentencing phase" because the prosecutor's argument

in support of the future dangerousness predicate (that defendant

"would constitute a continuing serious threat to society," id.)

"may well have made it easier to show 'depravity of mind.'"

There is no merit to this contention.

There was sufficient evidence to submit to the jury the

issue of future dangerousness. Such a finding may be based upon

21
"the circumstances surrounding the commission of the offense" of

which defendant was accused. Id. And, a jury may properly

conclude, which this jury chose not to do, that the circumstances

of this heinous crime satisfy the future dangerousness predicate

in that defendant would "constitute a continuing serious threat

to society." Id. Hence, because the issue of future

dangerousness properly was submitted to the jury, it becomes

irrelevant whether the prosecutor's argument on that issue "may

well have made it easier" to show vileness.

Next, defendant contends the trial court erred in denying

his motion for a new trial because the prosecutor allegedly

failed to disclose that Mrs. Darling had been diagnosed as having

a post-traumatic stress disorder. The presentence report

revealed that, as the result of defendant's murder of her husband

in her presence, she suffered from the disorder. In the motion,

defendant asserted the information concerning the disorder,

affecting one of the Commonwealth's principal witnesses, was

"exculpatory," and that the prosecutor's failure to disclose it

at trial violated Brady v. Maryland, 373 U.S. 83 (1963). The

trial court correctly denied the motion during a post-trial

hearing.

The Commonwealth's Attorney unequivocally represented to the

court that neither he nor any of the investigating police

officers had knowledge at the time of trial "of the label that

22
had been placed on this witness by a doctor in Pennsylvania."

The court accepted the representation and found that no one

connected with the prosecution "knew of this event and there's no

evidence that they did." Hence, there is no merit in defendant's

Brady claim. The prosecution's duty to disclose is limited to

information then known to it. See Robinson v. Commonwealth, 231

Va. 142, 155, 341 S.E.2d 159, 167 (1986).

Next, defendant contends the trial court erred in certain

rulings on jury matters made during and after the trial. We

already have ruled that several jury related issues defendant

raises are meritless, that is, the court's refusal to inquire of

the jurors whether they engaged in premature deliberations

(assignment of error 31) and refusal to declare a mistrial when

the jury expressed concern about their personal security

(assignment of error 34).

During the morning of the second day of trial in the penalty

phase, and after the verdict in the guilt phase had been

announced, defendant advised the court there had been press

reports that morning of the killing of four Americans in Karachi,

Pakistan the preceding evening. Defendant then asked the court

to question the jurors individually to determine whether any had

heard or read the reports. The court declined the motion, but

continued its practice of asking the jurors at the beginning of

each day of trial whether they had followed the court's

23
admonition not to read, look at, or listen to any reports about

the case. Juror 31 accidentally had heard a portion of a radio

report about the Karachi killings, but the court, upon

questioning her, determined she remained impartial and that none

of the other jurors were aware of the report.

The case proceeded for the remainder of the morning with

testimony of defendant's mitigation witnesses. After lunch,

however, the trial court decided to sequester the jury for the

rest of the case. The court said the press reports of the trial

had degenerated into "opinion and speculation," noting that "the

reporting has gotten crazy."

The court's refusal to grant defendant's repeated motions

for a mistrial during this series of trial events was an exercise

of the court's sound discretion, and we find no abuse of that

discretion.

Next, defendant contends the trial court erroneously denied

permission for defendant to contact a juror for questioning and

to conduct an inquiry about the jury's deliberations. The issue

arose against the following background.

Prior to trial, the court denied permission for defendant to

contact potential jurors. The names of the jurors were not made

public by agreement of counsel. At the beginning of the penalty

stage on November 11, the court entered an order prohibiting the

disclosure of "the name, address, identity or image" of any juror

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after considering "the need to protect jurors, the absolute right

of jurors not to discuss the case, and protection of the

confidentiality of juror deliberations."

On November 20, six days after the jury's sentencing verdict

was rendered, a newspaper published an article reporting

information gleaned from an interview with one juror about the

penalty stage deliberations. The article quoted the juror as

stating, for example, that some jurors "thought the crime was

vile because Kasi, an immigrant, 'had attacked the American way

of life.'" Also, the juror reportedly labeled defendant a

"terrorist," a term the court had prohibited the participants

from attaching to defendant during the trial proceedings.

On January 6, 1998, defendant moved to set aside the

sentencing verdict, alleging juror misconduct on the basis of the

article. He also asked for permission to subpoena the juror for

interrogation. After a hearing, the trial court, assuming the

news article accurately reported the juror's statements, denied

both motions. The court ruled that the reported information

"relates to the mental impressions of the jury and the way that

they deliberated and considered the evidence." Hence, according

to the court, inquiry of the jury was not allowed. The trial

court was correct.

Virginia has been more careful than most states to protect

the inviolability and secrecy of jury deliberations, adhering to

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the general rule that the testimony of jurors should not be

received to impeach their verdict, especially on the ground of

their own misconduct. Jenkins, 244 Va. at 460, 423 S.E.2d at

370. Generally, we have limited findings of prejudicial juror

misconduct to activities of jurors that occur outside the jury

room. Id. Here, the alleged misconduct clearly occurred within

the confines of the jury room, and a post-trial investigation

into the allegations was unwarranted.

Finally, defendant contends the sentence of death was

imposed under the influence of passion, prejudice, or other

arbitrary factor, and that the death sentence was excessive or

disproportionate to the penalty imposed in similar cases. While

not directly addressing those issues, defendant asks the Court to

"commute this death sentence to life in prison without parole."

The defendant bases his plea for commutation on an argument

laced with hyperbole, and threats inappropriate in an appellate

brief. He reaches conclusions having absolutely no foundation in

this record. For example, he says the death sentence resulted

from the "open hostility" of the trial judge and because the

prosecutors "were diligent in maligning the defense team

repeatedly in the media." The record shows otherwise. The trial

court in all the proceedings was thorough, even-handed, and

considerate of all counsel, and presided in a manner that was

fair both to the Commonwealth and the defendant. The

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Commonwealth's Attorney was diligent, well-prepared, and did not

exceed the bounds of conduct expected of an aggressive

prosecutor.

The defendant says that because his crimes were "political,"

he somehow is entitled to First Amendment protection, and that

his death sentence should be commuted to avoid possible violent

acts of reprisal. As the Attorney General observes, defendant

received the death sentence, not because he had a political

motive, but because he murdered two innocent men, and maimed

three others, in an extremely brutal and premeditated manner. As

the defendant moved among the stopped automobiles, he shot

through the rear window of the Darling vehicle, severely wounding

Darling in the torso. In a few seconds, defendant appeared at

the front of the Darling vehicle and fired at him again,

destroying a part of his head. Darling also suffered at least

one gunshot wound to his lower leg, resulting in a compound

fracture. There is nothing "arbitrary" about a death sentence

imposed under the circumstances of this case and, thus, there is

no basis for commutation.

In conducting our proportionality review, we must 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." Jenkins, 244 Va.

at 461, 423 S.E.2d at 371. See former Code § 17-110.1(C)(2) (now

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§ 17.1-313(C)(2)). We have examined our records of all capital

murder cases, see former Code § 17-110.1(E) (now § 17.1-313(E)),

including those cases where a life sentence was imposed. We have

particularly studied those cases in which the death penalty was

based on the vileness factor. See Cardwell v. Commonwealth, 248

Va. 501, 517, 450 S.E.2d 146, 156 (1994), cert. denied, 514 U.S.

1097 (1995).

Based upon this review, we conclude that defendant's death

sentence is not excessive or disproportionate to penalties

generally imposed by sentencing bodies in the Commonwealth for

similar conduct. The death sentence generally is imposed for a

capital murder when, as here, the defendant is also convicted of

killing another person. Goins v. Commonwealth, 251 Va. 442, 469,

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

Consequently, 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.

Record No. 980797 — Affirmed.
Record No. 980798 — Affirmed.

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