Clagett v. Commonwealth

Present: All the Justices

MICHAEL DAVID CLAGETT
OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.
v. Record Nos. 952162 & 952163 June 7, 1996

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Edward W. Hanson, Jr., Judge

In this appeal, we review the capital murder convictions and

five death sentences imposed upon Michael David Clagett (Clagett)

for the murders of Abdelaziz Gren, Wendell Parish, Karen Sue

Rounds and Lam Van Son.
I.
PROCEEDINGS

On October 3, 1994, two indictments were returned against

Clagett. In the first indictment, Clagett was charged with

robbery, Code § 18.2-58, use of a firearm in the commission of a

robbery, Code § 18.2-53.1, four separate counts of capital murder

during the commission of a robbery, Code § 18.2-31(4), and four

separate counts of use of a firearm in the commission of murder.
1
Code § 18.2-53.1. In the second indictment, Clagett was

charged with one count of multiple homicide capital murder. Code

§ 18.2-31(7). The second indictment predicated the charge of

multiple homicide capital murder on the killing of all four

victims as part of the same act or transaction.
1
Clagett's convictions on the lesser offenses were appealed
to the Court of Appeals; we have certified the record of those
convictions to this Court and have consolidated it with the
capital murder appeal. Code § 17-116.06. The first indictment
also charged Clagett with possession of a handgun after having
been convicted of a felony. Code § 18.2-308.2. Upon Clagett's
motion this charge was severed for separate trial and is not part
of this appeal.
 A jury trial began on June 26, 1995 and spanned ten trial

days. At the conclusion of the guilt phase, the jury convicted

Clagett of all charges. At the conclusion of the penalty phase,

the jury returned a verdict of five death sentences, based upon a

finding of both future dangerousness and vileness. The trial

court entered judgment on the jury verdict. Additional sentences

totaling 43 years on the lesser charges were also imposed. Other

aspects of the proceedings relevant to this appeal, in which

forty assignments of error are made, will be recounted in the

opinion where specific issues are addressed.
II.
EVIDENCE
Guilt Phase

We will review the evidence in the light most favorable to

the Commonwealth, the prevailing party below. Cheng v.

Commonwealth, 240 Va. 26, 42, 393 S.E.2d 599, 608 (1990).

Richard T. Reed, a regular patron, arrived at the Witchduck Inn

(the Inn), a tavern and restaurant in Virginia Beach, about

midnight on June 30, 1994. Although the Inn usually remained

open until 2:00 a.m., Reed found that the front door was locked.

Reed could hear music playing inside.

Although he knew that it would normally be kept locked, Reed

went to the rear door entrance to the Inn and found it unlocked.

Upon entering the Inn, he discovered the bodies of Lam Van Son,

the Inn's owner, Inn employees Wendell Parish and Karen Sue

Rounds, and Abdelaziz Gren, an Inn patron. Each victim had been

shot once in the head. The Inn's cash register was open and

empty.
 Based upon information supplied by Denise Holsinger,

Clagett's girlfriend, Clagett was identified as a suspect in the

killings. He was arrested on July 1, 1994 on a public

intoxication charge. Once in custody, Clagett was served with

arrest warrants for the murders. Clagett confessed to the

killings, admitting that he and Holsinger had intended to "rob"

the Inn and that Holsinger had taken approximately $400 from the

cash register. Additional facts developed during the guilt

phase of the trial will be recounted later in the opinion.
Penalty Phase

The Commonwealth presented evidence of Clagett's history of

brutal domestic violence against his former wife. The jury was

shown two photographs of the wound sustained by Lam Van Son. The

lead investigator testified that Clagett showed great remorse for

his acts during his confession. Additional facts developed

during the penalty phase of the trial will be recounted later in

the opinion.
III.
ISSUES WAIVED

Because Clagett did not address in his brief the issues

raised in assignments of error 5, 17, 19, 28, 29, and 35 he has
2
waived them. Rule 5:27. Also, the argument advanced on appeal
2
These assignments of error are:

5: Denial of motion to redact statements in confession concerning
Clagett's intention to pled guilty and his desire to waive his
right to counsel.
17: Admission of autopsy reports as duplicative of medical
examiner's testimony.
19: Admission of firearm/bullet fragments comparison report as
duplicative of expert testimony.
28: Method of selection of alternate jurors.
with respect to assignment of error 14 relating to the cross-

examination of Reed was not made before the trial court;

accordingly, we will not consider that assignment of error. Rule

5:25.
IV.
ISSUES PREVIOUSLY DECIDED

Clagett has raised a number of issues that we have rejected

in previous decisions. Finding no reason to modify our

previously expressed views, we reaffirm our earlier decisions and

reject the following contentions.
Clagett requested a bill of particulars which, in effect,

would have required the Commonwealth to produce all the evidence

it intended to introduce during the guilt and penalty phases of

the trial. We have previously held that this is not a proper use

of a bill of particulars. Quesinberry v. Commonwealth, 241 Va.

364, 372, 402 S.E.2d 218, 223, cert. denied, 502 U.S. 834 (1991).

Clagett requested the assistance of an expert medical

witness to examine his former spouse in order to refute her

claims of domestic violence. We have previously held that an

indigent defendant is not entitled to every resource he requests

from the trial court. The Commonwealth is required to provide

only those resources necessary for a basic, adequate defense.
O'Dell v. Commonwealth, 234 Va. 672, 686, 364 S.E.2d 491, 499,

cert. denied, 488 U.S. 871 (1988); see also Britt v. North
Carolina, 404 U.S. 226, 227 (1971).
(..continued)
29: Failure to grant motion for mistrial during Commonwealth's
closing argument.
35: Permitting the jury to consider evidence of vileness.
 Clagett sought additional peremptory challenges during jury

selection. We have repeatedly held that there is no right to

additional peremptory challenges. See, e.g., Strickler v.

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

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

Clagett objected to the introduction of a videotape of a

news interview he gave to a local reporter on the ground that the

Commonwealth had failed to show that the reporter was not

available. The interview was admissible as a party admission,

and, thus, not subject to exclusion under the hearsay rule.
Quintana v. Commonwealth, 224 Va. 127, 148, 295 S.E.2d 643, 654

(1982), cert. denied, 460 U.S. 1029 (1983).

Clagett asserts under numerous theories that the Virginia

death penalty statutes are unconstitutional. We have previously

addressed each of these contentions, sustaining in each instance

the constitutionality of our death penalty statutes. See, e.g.,

Breard v. Commonwealth, 248 Va. 68, 74, 445 S.E.2d 670, 674-75,
cert. denied, ___ U.S. ___, 115 S.Ct. 442 (1994)(meaningful

guidance to the jury on factors to consider in fixing the death

penalty); Satcher v. Commonwealth, 244 Va. 220, 228, 421 S.E.2d

821, 826 (1992), cert. denied, 507 U.S. 933 (1993) (appellate

review of capital cases is adequate); Stewart v. Commonwealth,

245 Va. 222, 229, 427 S.E.2d 394, 399-400, cert. denied, 510 U.S.

___, 114 S.Ct. 143 (1993)(future dangerousness predicate is not

impermissibly vague); Watkins v. Commonwealth, 229 Va. 469,
490-91, 331 S.E.2d 422, 438 (1985), cert. denied, 475 U.S. 1099

(1986)(instructing jury on consideration of mitigating factors).
 V.
MATTERS WITHIN THE TRIAL COURT'S DISCRETION

A number of the issues raised by Clagett concern rulings

committed to the trial court's discretion. In each of the

following instances we find no evidence to support a finding of

an abuse of that discretion, and, accordingly, we hold that no

error occurred.

The trial court permitted the jury to be shown a videotape

of the crime scene in which two of the bodies had been moved from

their original positions by emergency personnel. The trial court

instructed the jury as to this fact. Accordingly, it was not an

abuse of discretion to permit the jury to view the videotape.
Washington v. Commonwealth, 228 Va. 535, 552, 323 S.E.2d 577, 588

(1984), cert. denied, 471 U.S. 1111 (1985).

During the guilt phase, the Commonwealth called Wendy Singer

as a witness. Clagett objected to her testimony and moved for a

mistrial on the ground that Singer had been identified as a

potential witness only shortly before trial and that the

Commonwealth had indicated that she would be called only during

the penalty phase. Whether an occurrence at trial "is so

prejudicial as to require a mistrial is a question of fact to be

resolved by the trial court in each particular case." Beavers v.

Commonwealth, 245 Va. 268, 280, 427 S.E.2d 411, 420, cert.

denied, 510 U.S. ___, 114 S.Ct. 171 (1993). Even accepting

Clagett's assertions as true, he was nonetheless informed that

Singer was a potential witness prior to trial. Accordingly,

there was no prejudice to Clagett.
 Clagett objected to the introduction of a crime scene

photograph during redirect examination of the medical examiner.

On cross-examination of this witness, Clagett had questioned

whether an examination of the crime scene photographs would have

been beneficial to her investigation. She conceded that they

would have been beneficial, but that she had not examined any

crime scene photographs. On redirect, the Commonwealth produced

a crime scene photograph and asked whether the position of the

body of the victim would in some way alter the witness's

conclusions in her report. Clagett asserted that the admission

of the photograph was erroneous in that it was duplicative and

that the gruesomeness of the photograph was prejudicial. He

raised a similar objection to the introduction of the two

photographs showing the wounds of Lam Van Son during the penalty

phase. Clagett further objected to the form and size of certain

photographs introduced.
The admission into evidence of photographs of the body of a

murder victim is left to the sound discretion of the trial court

and will be disturbed only upon a showing of a clear abuse of

discretion. Williams v. Commonwealth, 234 Va. 168, 177, 360

S.E.2d 361, 367 (1987), cert. denied, 484 U.S. 1020 (1988). A

graphic photograph is admissible so long as it is relevant and

accurately portrays the scene of the crime. Washington v.

Commonwealth, 228 Va. at 551, 323 S.E.2d at 588; see also Clozza
v. Commonwealth, 228 Va. 124, 135, 321 S.E.2d 273, 280 (1984),

cert. denied, 469 U.S. 1230 (1985).

Clagett objected to the introduction of Commonwealth's
exhibit 42, a photograph of money taken from him at the time of

his arrest, on the ground that the officer could not positively

identify the money as that taken from Clagett. "We have long

recognized and admitted photographs . . . by holding that a

photograph which is verified by the testimony of a witness as

fairly representing what the witness has observed is admissible

in evidence." Ferguson v. Commonwealth, 212 Va. 745, 746, 187

S.E.2d 189, 190, cert. denied, 409 U.S. 861 (1972). Here, the

officer who seized the items was able to identify a distinctive

key ring in an accompanying photograph as having been one taken

from Clagett and photographed at the same time as the money taken

from him. This testimony was adequate to establish the

authenticity of the representation of the photograph.
During the penalty phase, Clagett repeatedly objected to the

testimony of his former wife regarding his propensity to extreme

domestic violence. The trial court sustained one such objection

and Clagett then sought a mistrial. As noted above, the granting

of a mistrial is a matter within the trial court's discretion.
Beavers, 245 Va. at 280, 427 S.E.2d at 420. We cannot say that

the trial court erred in determining that the Commonwealth's

actions were not so prejudicial as to warrant a mistrial. 3
VI.
PRE-TRIAL ISSUES

A. Suppression of post-arrest statements

3
On brief, Clagett attempts to relate the single sustained
objection to the entire testimony of his former wife. That
argument was not made below and will not be considered for the
first time of appeal. Rule 5:25.
 Clagett sought to suppress his post-arrest statements on the

ground that his arrest was pretextual. Clagett was arrested for

public intoxication after he was discovered "passed out" in the

shrubbery of an apartment complex by an officer responding to a

citizen complaint. While the arresting officer was aware that

Clagett was the subject of a "be on the lookout" notice to notify

the detective unit if he was found, the record adequately

supports the trial court's factual finding that the officer had

probable cause to arrest Clagett on the public intoxication

charge. See Watkins, 229 Va. at 477, 331 S.E.2d at 429-30.

B. Failure of Commonwealth to disclose certain statements

At the suppression hearing, the arresting officer was

permitted, without objection, to refresh her memory by examining

an investigation memorandum prepared following the arrest.

During cross-examination, it was determined that the officer

prepared this memorandum using handwritten notes taken at the

time of Clagett's arrest. Clagett then requested that these

notes be produced for his examination. At the request of the

trial court, the officer retrieved her notes which were examined

by the Commonwealth. The Commonwealth represented to the trial

court that no statements made by Clagett or other potentially

exculpatory evidence were contained within the notes and, on that

basis, the trial court denied Clagett's request to review the

notes.

Clagett also sought disclosure of statements made by

Holsinger. The Commonwealth represented that her statements were

wholly inculpatory and did not offer any exculpatory benefit to
Clagett. The trial court denied Clagett's request. Holsinger

did not testify at Clagett's trial.

In neither instance did the trial court review the material,

nor did Clagett request that the trial court undertake an in

camera review. The notes and the statement were not made a part

of the record. Accordingly, we must limit our review to the

rulings made by the trial court based upon the representations of

the Commonwealth.
There is no general right to discovery of witness

statements, reports, or other memoranda possessed by the

Commonwealth. Bunch v. Commonwealth, 225 Va. 423, 436, 304

S.E.2d 271, 278, cert. denied, 464 U.S. 977 (1983); see also

Spencer v. Commonwealth, 238 Va. 295, 303, 384 S.E.2d 785, 791

(1989), cert. denied, 493 U.S. 1093 (1990). Because the

requested documents were represented as having no exculpatory

material, and nothing in the record before us contradicts those

representations, we hold that the trial court properly denied

Clagett's requests in these two instances.
VII.
VOIR DIRE ISSUES

A. Proposed question for the jury panel

During voir dire, Clagett sought to ask the members of the

venire if they would automatically impose the death penalty even

if they accepted Clagett's theory of the case. The trial court

ruled that this was not the proper inquiry. The trial court

instead permitted the members of the venire to be asked whether

they would automatically impose the death penalty "no matter what
the facts were." See Morgan v. Illinois, 504 U.S. 719, 723

(1992). We hold this inquiry was adequate to assure the removal

of those jurors who would invariably impose capital punishment.

Turner v. Commonwealth, 221 Va. 513, 523, 273 S.E.2d 36, 42-43

(1980), cert. denied, 451 U.S. 1011 (1981); see also Mueller v.

Commonwealth, 244 Va. 386, 400-01, 422 S.E.2d 380, 390 (1992),

cert. denied, 507 U.S. 1043 (1993).

B. Juror disqualification
Clagett further challenges the trial court's refusal to

remove for cause three veniremen. During voir dire, Gordon

Holmes stated that it was "silly" of Clagett to confess "at the

early stages of the charges." Holmes later stated, however, that

he did not know Clagett's state of mind at the time of his

confession and twice stated that he could base his verdict solely

upon the evidence presented in the trial. Holmes was selected as

a member of the jury.

Responding to a lengthy question posed by Clagett containing

hypothetical facts similar to the case, Steve Gunby stated that

he would impose the death penalty without considering a sentence

of life imprisonment. When questioned further by the

Commonwealth, Gunby stated that he had misunderstood the question

and that he could consider imposition of life imprisonment. The

defense used one of its peremptory strikes to remove Gunby from

the panel.

Thomas Dillon initially indicated that in order to consider

a sentence of life imprisonment, he would require the defense to

present mitigating evidence. The trial court explained to Dillon
that the defense could not be required to present such evidence.

Dillon then stated, in response to a further question from

Clagett, that he could decide the issue "based on what's put in

front of me throughout this process and on the instructions of

the court." The defense used one of its peremptory strikes to

remove Dillon from the panel.

In each instance, Clagett confines his argument to a

discrete portion of the examination of each juror. We must

consider the voir dire as a whole, not just isolated statements.
Mackall v. Commonwealth, 236 Va. 240, 252, 372 S.E.2d 759, 767

(1988), cert. denied, 492 U.S. 925 (1989). The trial court's

decision whether to strike a juror for cause is a matter

submitted to its discretion and will not be disturbed on appeal

unless the refusal constitutes manifest error. Stockton v.

Commonwealth, 241 Va. 192, 200, 402 S.E.2d 196, 200, cert.

denied, 502 U.S. 902 (1991). In the present case, the trial

court had the opportunity to observe each juror's demeanor when

evaluating his responses to the questions of counsel and the

instructions of the court. Nothing in the record suggests that

the trial court abused its discretion in refusing to strike these

jurors for cause.
VIII.
GUILT PHASE ISSUES

A. Evidence of prior criminal acts

Clagett objected to the introduction of portions of his

post-arrest statement in which he discusses his prior criminal

history. Assuming, without deciding, that such evidence was not
admissible to show the voluntariness of the statement as the

Commonwealth asserts, but see Williams v. Commonwealth, 11 Va.

App. 149, 152, 396 S.E.2d 860, 862 (1990), we hold that its

introduction was harmless beyond any reasonable doubt. The trial

court gave a proper limiting instruction which the jury is

presumed to have followed. LeVasseur v. Commonwealth, 225 Va.

564, 589, 304 S.E.2d 644, 657 (1983), cert. denied, 464 U.S. 1063

(1984). Moreover, the evidence adduced against Clagett was

overwhelming, precluding the possibility that any prejudice which

might have resulted from the introduction of prior criminal

history evidence could have improperly influenced the jury's

decision-making process. See Goins v. Commonwealth, 218 Va. 285,

288, 237 S.E.2d 136, 138 (1977).

B. Testimony of John Ward

Firearms expert John Ward testified that he was able to make

determinations of gunshot distances and residue. Clagett

objected that this evidence had not been disclosed prior to trial

and sought a mistrial. We hold that the trial court properly

ruled that Clagett had been given an opportunity to interview

Ward prior to trial, and since the portion of Ward's testimony to

which Clagett objected was not part of Ward's written report, his

findings were not subject to disclosure under Rule 3A:11. See

O'Dell, 234 Va. at 682-83 and n.3, 364 S.E.2d at 497 and n.3.

C. Testimony of Sonja Moore

After testifying for the Commonwealth, forensic witness

Sonja Moore overheard Clagett's lawyers discussing a factual

misstatement she had made in her testimony. Afterwards she
reported her error to the Commonwealth's Attorney, who recalled

Moore to the stand so that she might correct her testimony.

Clagett objected to the trial court's permitting Moore to be

recalled. We hold that the trial court did not abuse its

discretion in permitting the Commonwealth to recall this witness

to correct or explain prior testimony. See Quintana, 224 Va. at

142, 295 S.E.2d at 650 (sustaining introduction of evidence in

rebuttal phase of case more appropriately introduced as part of

case-in-chief); Hargraves v. Commonwealth, 219 Va. 604, 608, 248
S.E.2d 814, 817 (1978)(permitting Commonwealth to reopen case

after it rested and court heard defendant's motion to strike

Commonwealth's evidence).

Clagett further asserted that the basis for Moore's

knowledge of the error impinged upon the attorney-client

privilege. Assuming, without deciding, that the communication

was one which would be entitled to protection, the privilege is

waived where the communication takes place under circumstances

such that persons outside the privilege can overhear what is

said. See Cook v. Hayden, 183 Va. 203, 224, 31 S.E.2d 625,

633-34 (1944). Nothing in the record indicates that Moore

overheard the attorneys' conversation intentionally or

surreptitiously. Accordingly, the trial court did not err in

permitting Moore to be recalled to the stand.

D. Corroboration of confession

Clagett moved to strike the charges of robbery and capital

murder during the commission of a robbery on the ground that

there was no corroborating evidence of the robbery to support the
confession. "When, as here, the commission of the crime has been

fully confessed by the accused, only slight corroborative

evidence is necessary to establish the corpus delicti." Clozza,

228 Va. at 133, 321 S.E.2d at 279. Here, in addition to

Clagett's admission that Holsinger had taken the money from the

cash register, the evidence showed that the main entrance to the

Inn was locked when it would normally have been open; the rear

entrance was open when it would normally have been locked; the

cash drawer of the register was open and empty; and the owner and

three other persons were found murdered at the scene. These

facts provide the necessary corroborative evidence that the crime

of robbery had been committed. Accordingly, the trial court did

not err in failing to strike the robbery charge.
Clagett further asserted that there was no evidence to

corroborate his confessed role as the triggerman. In addressing

a similar contention in Roach v. Commonwealth, 251 Va. 324, 468

S.E.2d 98 (1996), we said:
The Commonwealth need not corroborate an entire
confession, but it must corroborate the elements of the
corpus delicti. In the present case, the Commonwealth
met its burden of corroborating the corpus delicti of
capital murder.

The corpus delicti of a homicide consists of
"proof of the victim's death from the criminal act or
agency of another person."

Id. at 344, 468 S.E.2d at 110 (quoting Swann v. Commonwealth, 247

Va. 222, 236, 441 S.E.2d 195, 205, cert. denied, ___ U.S. ___,

115 S.Ct. 234 (1994)).

As in Roach, the Commonwealth produced evidence that the
killings were not accidental or self-inflicted, but were the act
of some criminal agent, and that the confessed triggerman

possessed a weapon and ammunition consistent with the type used

to commit the murders. Moreover, the record is totally devoid of

any evidence that Holsinger, the only other criminal actor

present, was potentially the triggerman. A defendant's

hypothesis negating the Commonwealth's theory of the case must be

supported by some evidence in the record and may not arise from

the imagination of the defendant or his counsel alone. See Goins
v. Commonwealth, 251 Va. 442, 467, ___ S.E.2d ___, ___ (1996);

Graham v. Commonwealth, 250 Va. 79, 85-86, 459 S.E.2d 97, 100

(1995). Because the Commonwealth sufficiently corroborated the

corpus delicti of capital murder and the predicate felony of

robbery, the trial court did not err in failing to strike the

capital murder charges.

E. Sufficiency of the evidence

After the return of the verdicts, Clagett moved the trial

court to set aside the verdicts as contrary to the law and

evidence. As the evidence already recounted in this opinion

shows, Clagett's guilt is not in question when the facts are

viewed in a light favorable to the Commonwealth. The trial court

properly denied the motion to set aside the verdicts.
IX.
JURY INSTRUCTION ISSUES

A. Flight

Clagett objected to the Commonwealth's instruction no. 21

relating to flight as evidence of guilt. The evidence at trial

showed that Clagett and Holsinger left Virginia Beach and drove
to North Carolina, disposing of evidence along the way. Clagett

maintained at trial that his voluntary return to Virginia Beach

within one day negated evidence of flight. We disagree.

Flight following the commission of a crime is evidence of

guilt, and the jury may be so instructed. Boykins v.

Commonwealth, 210 Va. 309, 313-14, 170 S.E.2d 771, 774 (1969);

Carson v. Commonwealth, 188 Va. 398, 408, 49 S.E.2d 704, 708

(1948). Flight is not limited to physically leaving a

jurisdiction for an extended period, but includes the taking of

any action, even of short duration, intended to disguise one's

identity and distance oneself from the crime. See Edmondson v.

Commonwealth, 248 Va. 388, 390-91, 448 S.E.2d 635, 637 (1994)(use

of false name constitutes flight). Viewed in the light most

favorable to the Commonwealth, Clagett's trip to North Carolina,

though brief, was taken with the purpose of concealing his

identity as the perpetrator, and, thus, constituted flight.

Accordingly, there was no error in giving instruction no. 21.

B. Circumstantial evidence

Clagett also objected to the denial of his instruction no.

A-1, a standard instruction concerning the weight to be given

circumstantial evidence. Assuming, without deciding, that

Clagett is correct that the Commonwealth's case, apart from

Clagett's confession, rests solely on circumstantial evidence, we

hold that other instructions given by the trial court adequately

address the standard to be applied to circumstantial evidence.
Howard v. Commonwealth, 210 Va. 674, 679, 173 S.E.2d 829, 833

(1970).
 X.
PENALTY PHASE ISSUES

A. Jury inquiry

During deliberation on the punishment for the non-capital

offenses, the jury submitted a two-part question to the trial

court asking it to define a life sentence with respect to the

effect of parole and asking whether mandatory sentences were

served concurrently or consecutively. The trial court responded

that the jury should "impose such punishment" it felt the

evidence warranted and "not to concern [itself] with what might

happen afterwards." Clagett objected, stating that the jury

"should be instructed that the [mandatory] sentences have to run

consecutively." The trial court's answer to the jury was

appropriate. Poyner v. Commonwealth, 229 Va. 401, 418-19, 329

S.E.2d 815, 828, cert. denied, 474 U.S. 865 and 474 U.S 888

(1985). Moreover, "we have consistently rejected efforts to

permit jurors to consider a defendant's parole eligibility or

ineligibility." Joseph v. Commonwealth, 249 Va. 78, 83-84, 452

S.E.2d 862, 866, cert. denied, ___ U.S. ___ 116 S.Ct. 204 (1995).
Relying on Simmons v. South Carolina, 512 U.S. ___, 114

S.Ct. 2187 (1994), Clagett asserts that the jury should have been

instructed regarding parole eligibility. Clagett failed to

establish and the record does not show that he was parole

ineligible. Therefore, Simmons does not apply. Roach, 251 Va.

at 346, 468 S.E.2d at 111.

B. Limitation of cross-examination

The trial court sustained the Commonwealth's objection to
Clagett's attempt to cross-examine the lead investigator

concerning Holsinger's remorse for her part in the crime. As

Clagett failed to proffer the testimony he expected to elicit, we

will not consider this issue on appeal. Mackall, 236 Va. at 256-

57, 372 S.E.2d at 769.
XI.
DOUBLE JEOPARDY SENTENCING ISSUE

Clagett asserts, and the Commonwealth concedes, that he has

been impermissibly punished with five death sentences for four

homicides. Such a circumstance presents an unusual case for the

application of the double jeopardy doctrine. Generally, a

defendant cannot be placed in jeopardy more than once for a

single criminal act. However, the state may, under one or

multiple indictments, charge a defendant using multiple theories

concerning the same crime or greater and lesser crimes arising

out of the same act or transaction. In such cases, the

prohibition against "multiple prosecution" double jeopardy does

not apply so long as the defendant is arraigned and tried in a

single proceeding. See Blythe v. Commonwealth, 222 Va. 722, 725,

284 S.E.2d 796, 797-98 (1981); United States v. Quinones, 906

F.2d 924, 928 (2d Cir. 1990), cert. denied, 498 U.S. 1069 (1991).

When so prosecuted, the accused cannot be subjected to more than

one conviction and punishment for each discrete criminal act.

Ohio v. Johnson, 467 U.S. 493, 500 (1984); Blythe, 222 Va. at

725, 284 S.E.2d at 797-98.

In Buchanan v. Commonwealth, 238 Va. 389, 384 S.E.2d 757
(1989), cert. denied, 493 U.S. 1063 (1990), we addressed a case
of "multiple punishment" double jeopardy. There we held that an

excess conviction must be set aside and its related sentence

vacated. Id. at 414-15, 384 S.E.2d at 772-73; see also Williams

v. Commonwealth, 248 Va. 528, 547, 450 S.E.2d 365, 377 (1994),

cert. denied, ___U.S.___, 115 S.Ct. 2616 (1995); Morris v.

Commonwealth, 228 Va. 206, 209, 321 S.E.2d 633, 634-35 (1984).

Although Buchanan dealt with greater and lesser degrees of

homicide, we believe that the same rationale should apply to

cases where the convictions are for crimes of equal magnitude.
In this case, each of the convictions for capital murder

during the commission of a robbery may stand on its own. The

conviction for multiple homicide capital murder, although of

equal magnitude, is derivative of the other four. Accordingly,

we will vacate the conviction and the corresponding sentence for

that crime. See Buchanan, 238 Va. at 415, 384 S.E.2d at 773;

Brown v. Commonwealth, 222 Va. 111, 116, 279 S.E.2d 142, 145

(1981).
XII.
SENTENCE REVIEW

Under Code § 17-110.1(C)(1) and (2), we are required to

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

influence of passion, prejudice or any other arbitrary factor"

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

disproportionate to the penalty imposed in similar cases,

considering both the crime and the defendant."

Clagett contends that the sentence of death was imposed

under the influence of passion, prejudice, or other arbitrary
factor. In support of his contention, Clagett asserts that

"[t]he scarcity of any reliable evidence . . . and the numerous

errors made by the trial court . . . dictate that the jury's

recommendation be vacated. The probability of prejudice and

emotion taking their toll on the jury was great." Since we have

found no error in the trial court's rulings, we reject this

argument. See Pope v. Commonwealth, 234 Va. 114, 127, 360 S.E.2d

352, 360 (1987), cert. denied, 485 U.S. 1015 (1988); Wise v.
Commonwealth, 230 Va. 322, 335, 337 S.E.2d 715, 723 (1985), cert.

denied, 475 U.S. 1112 (1986). Additionally, our independent

review of the entire record fails to disclose that the jury's

death sentence "was imposed under the influence of passion,

prejudice or any other arbitrary factor." Code § 17-110.1(C)(1).

In conducting the excessiveness and proportionality review,

we consider "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
v. Commonwealth, 244 Va. 445, 461, 423 S.E.2d 360, 371 (1992),

cert. denied, 507 U.S. 1036 (1993). With this purpose in mind,

we have compared the record in this case with the records in

other capital murder cases, including those in which imprisonment

for life was imposed, to determine whether the death penalty

imposed here is "excessive or disproportionate to the penalty

imposed in similar cases, considering both the crime and the

defendant." Code § 17-110.1(C)(2).

Clagett asserts that his case and background "pale by

comparison" with virtually every case referenced in his argument
and that the death sentences recommended by the jury are, thus,

disproportionate. Considering the nature of the crime and the

evidence presented during the guilt and penalty phases of the

trial, we conclude that juries in Virginia customarily impose the

death sentence for conduct similar to Clagett's. See Stamper v.

Commonwealth, 220 Va. 260, 257 S.E.2d 808 (1979), cert. denied,

445 U.S. 972 (1980)(capital murder/robbery of multiple victims;

three death sentences based solely upon future dangerousness

predicate); see also Peterson v. Commonwealth, 225 Va. 289, 302
S.E.2d 520, cert. denied, 464 U.S. 865 (1983)(capital

murder/robbery; victim shot once in abdomen; death penalty based

on future dangerousness); Quintana, 224 Va. 127, 295 S.E.2d 643

(capital murder/robbery; death penalty based on vileness and

future dangerousness); Clanton v. Commonwealth, 223 Va. 41, 286

S.E.2d 172 (1982)(capital murder/robbery; death penalty based on

vileness and future dangerousness); Turner v. Commonwealth, 221

Va. 513, 273 S.E.2d 36 (1980), cert. denied, 451 U.S. 1011

(1981)(capital murder/robbery; death penalty based on vileness

and future dangerousness).
XIII.

CONCLUSION

Apart from the conviction and sentence for multiple homicide

capital murder, we find no error in the rulings of the trial

court and no reason to commute the four sentences of death for

capital murder during the commission of a robbery. Accordingly,

we will vacate the conviction and sentence for multiple homicide

capital murder and affirm the remainder of the judgment of the
trial court including each of the four convictions for capital

murder during the commission of a robbery and the corresponding

death sentences.
Record No. 952162 -- Modified and affirmed,
as modified.

Record No. 952163 -- Affirmed.