Roach v. Commonwealth

Present: All the Justices

STEVE ROACH

v. Record No. 951416 OPINION BY JUSTICE BARBARA MILANO KEENAN
March 1, 1996
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF GREENE COUNTY
Lloyd C. Sullenberger, Judge

In this appeal, we review a capital murder conviction and a

death sentence imposed upon Steve Edward Roach for the murder of

Mary Ann Hughes, his 70-year-old neighbor. 1
I. PROCEEDINGS

Juvenile petitions were issued against Roach, who was 17

years old at the time of these offenses, charging him with

capital murder, use of a firearm in the commission of murder, and

robbery. The Commonwealth gave notice of intent to try Roach as

an adult and a transfer hearing was conducted in the Greene

County Juvenile and Domestic Relations District Court (the

juvenile court). Finding probable cause to believe that Roach

committed the crimes, the juvenile court advised the

Commonwealth's Attorney that he could seek indictments against

Roach before a grand jury. The circuit court then reviewed the

transfer order under Code § 16.1-269 and found probable cause to

believe that Roach committed all three offenses.

Roach was tried as an adult on indictments charging (1)

capital murder of Mary Ann Hughes in the commission of robbery

1
Roach has not appealed his convictions of robbery and use

of a firearm in the commission of murder.
while armed with a deadly weapon, in violation of Code

§ 18.2-31(4); (2) use of a firearm in the commission of murder,

in violation of Code § 18.2-53.1; and (3) robbery by violence to

the person of Mary Ann Hughes, in violation of Code § 18.2-58.

At the first stage of a bifurcated jury trial conducted pursuant

to Code §§ 19.2-264.3 and -264.4(A), Roach was found guilty as

charged in all three indictments. 2

At the penalty phase of the capital murder trial, the court

struck the evidence as to the "vileness" predicate of a capital

sentence, but submitted the case to the jury upon the "future

dangerousness" predicate. The jury found that the "future

dangerousness" predicate was satisfied and unanimously fixed

Roach's punishment at death.
Upon review of victim impact statements and a probation

officer's report, and after conducting a sentencing hearing, the

trial court sentenced Roach in accord with the jury verdict on

the capital murder conviction. Further, the court sentenced

Roach to three years imprisonment for the use of a firearm in the

commission of a murder and to life imprisonment for robbery.

II. THE EVIDENCE
Guilt Phase

2
Since Roach was a juvenile at the time these offenses were

committed, the jury did not fix punishment on the noncapital

charges. See Code § 16.1-272.

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 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). On the

evening of December 3, 1993, Mary Ann Hughes was shot and killed

in her home about five miles west of Stanardsville. Hughes was

standing at her open front door when she was shot. Her body was

discovered the next day.

The cause of death was a single shotgun wound to the chest,

which caused injury to an artery, the chest wall, and the right

lung. Dr. Deborah Kay, the medical examiner who performed the

autopsy on Hughes, recovered shotgun pellets and wadding from

Hughes's chest. The pellets and wadding were identified as

number eight shot from a 12 gauge Remington shot shell case.
The day before the killing, Roach brought a 12 gauge shotgun

to a neighbor's house, and he and two friends engaged in shooting

the gun in the back yard using number eight shot. The police

later recovered from the neighbor's back yard number eight shot

that was consistent with a 12 gauge Remington shell case.

Roach and Hughes were also neighbors. Roach helped Hughes

with household chores and also spent a great deal of time

visiting her. The evidence showed that Roach was familiar with

Hughes's habits, and that Hughes customarily deposited her social

security check in the bank within the first few days of each

month.

On the night she was killed, Hughes's purse, containing a

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Discover credit card and approximately sixty dollars in cash, was

taken from her home. Hughes owned a 1981 Buick Regal, which also

was taken.

In the early morning hours of December 4, 1993, Gregory Lee

Giuriceo, Jr., a deputy sheriff for Nottoway County, noticed a

Buick Regal parked in a parking lot of a shopping center in

Blackstone. Roach was identified by Giuriceo as the operator of

the car. After leaving the parking lot, Giuriceo determined that

the automobile was registered to Hughes.
Later in the morning of December 4, 1993, Roach attempted to

use Hughes's Discover bank card at an automated teller machine in

Louisburg, North Carolina. A video tape from the machine showed

Roach attempting to withdraw cash from Hughes's account.

On December 5, 1993, Trooper David F. Chavis of the South

Carolina Highway Patrol observed a 1981 Buick Regal automobile

with Virginia plates which was being driven at 69 miles per hour

in a 55 mile per hour zone. He activated the lights on his

patrol car and proceeded behind the Buick. The driver of the

Buick drove the automobile over to the left shoulder of the road,

got out of the car, ran into the woods at the side of the road,

and escaped. The driver was wearing clothes which matched the

description of the clothes Roach had been seen wearing for the

previous two days.

Trooper Chavis impounded the vehicle and traced its

ownership to Hughes. Items retrieved from the automobile

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included Hughes's purse, a blue jacket, a number eight load

shotgun shell, and a plastic bag from a Winn-Dixie grocery store.

Mahlon Jones, a fingerprint expert employed by the

Commonwealth's Division of Forensic Science, identified a latent

palm print from the plastic bag as matching Roach's left palm

print. In addition, latent fingerprints were recovered from the

automobile which matched Roach's fingerprints.

Roach made several telephone calls to his aunt, Annie Betty

Dean, while he was in North Carolina and South Carolina. During

those telephone conversations, she asked him to "come home and

give [himself] up." On December 6, 1993, Roach contacted Sheriff

William L. Morris and arranged to come that day with his father

to the Sheriff's Department for questioning.
At the Sheriff's Department, Morris advised Roach of his

Miranda rights in the presence of Roach's father. Roach waived

his rights, and both he and his father signed the waiver form.

Sheriff Morris then questioned Roach out of his father's

presence. Clarence Roberts, an acquaintance of the Roach family

and an employee of the Department of Alcoholic Beverage Control,

was present with Morris during the interview.

At first, Roach told Morris that he and a friend, Scott

Shifflett, went to Hughes's house on the evening of December 3,

1993. Roach said that Shifflett left the 12 gauge shotgun at the

door, and that they entered the house and played Yahtzee with

Hughes. Roach recounted that Shifflett then took the keys to the

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Buick Regal and the two began to leave the house. Roach said

that, after he left, Shifflett ran back to the front door, fired

one shot, and ran back to the Buick with Hughes's purse.

According to Roach, Shifflett said that he had "fired through the

roof to scare her."

Roach stated that Shifflett then jumped into the driver's

seat of the Buick and they drove to North Carolina. He said that

Shifflett must have tried to use Hughes's Discover credit card

while Roach was in a Winn-Dixie store making some purchases.

Roach also stated that he and Shifflett abandoned Hughes's

vehicle in North Carolina.
During the questioning, Morris related to Roach certain

evidence that had already been discovered, stating, "[W]ith all

these discrepancies in the story, . . . I'm finding it really a

little difficult to believe some of the things you're telling

me." Roberts then told Roach that he knew Roach was lying and

that "this is a heavy burden to carry on your shoulders for the

rest of your life, if you committed this act you need to tell

Sheriff Morris and you need to unburden yourself."

Roach then told Morris,
I went over there and saw her counting the money and as
I was leaving, I had the shotgun laying at the door and
I shot her, took the money, the car and left, went to
North Carolina. And I cashed -- I tried to use -- use
the credit card but -- about four times[,] but it
wouldn't work.

When asked where he shot Hughes, he answered, "In the chest."

At trial, Roach offered evidence that there was no gunshot

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residue on his hands or clothes when he was arrested. He also

presented evidence that no footprints at the scene of the crime

matched the shoes he was wearing on December 3, 1993. In

addition, Barbara Llewellyn, an expert employed by the Division

of Forensic Science in the analysis of blood and body fluid,

testified that, when Roach was arrested, he had no blood on his

clothing, except a "very light stain" on his shirt, despite the

fact that the fatal wound perforated one of Hughes's arteries and

the pattern of blood splatters indicated that the person who had

fired the gun was standing within five feet of Hughes.

Penalty Phase

During the penalty phase of the trial, the Commonwealth put

on evidence of Roach's prior juvenile convictions. Roach had

been convicted twice of grand larceny of an automobile. He

committed the first larceny in May 1993 and the second in August

1993. In connection with the first automobile larceny, Roach was

convicted of reckless driving and failure to stop for a police

officer.

In June 1993, Roach was convicted of breaking and entering a

residential dwelling and of grand larceny arising out of the

burglary. Roach gained entry to the home by breaking a window.

He then ransacked the house and stole a .357 magnum pistol.

In August 1993, Roach was sentenced to supervised probation

and house arrest under the supervision of his parents at all

times. He violated the conditions of this probation when he left

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the family home and carried a weapon.

When Roach was placed on probation in August 1993, a

psychological evaluation was ordered. The psychologist

recommended that Roach and his family attend family counseling

and that Roach increase his level of academic attainment. Roach

had stopped attending school in 1991 when he was 14 years old.

According to John T. Frey, Roach's probation officer, Roach

and his family attended counseling sessions at the regional

counseling center prior to December 1993. Roach also enrolled in

G.E.D. classes in the adult education program offered by Greene

County.
Shirley Ann Roach, Roach's mother, testified that she and

Roach's father had separated and reconciled their marriage four

times during Roach's childhood. She testified that she and her

husband requested that Roach be released from compulsory

education at age 14 because he was needed around the house to do

chores and to care for his brothers. She also stated that she

did not realize that possessing a weapon violated the terms of

Roach's probation because the probation papers did not explicitly

state this fact.

John Roach, Roach's father, testified that he was frequently

absent from home. He also suffered from significant health

problems. When Steve Roach was six years old, John Roach

sustained a shotgun injury which required him to remain in the

hospital for six months. While being treated for the gunshot

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wound, he contracted Hepatitis C from a blood transfusion. The

medication he received for this condition caused mood changes.

John Roach testified that, when his wife left him, life "got

worse" for his children. He began drinking heavily and brought

young girls into the home in order to make his wife jealous. He

stated that the children were present when this occurred and that

they did not receive parental supervision. He also stated that

Steve Roach had free access to all the guns in the house.
Several family friends and relatives testified on Steve

Roach's behalf. Clarence Roberts testified that Roach had

performed numerous "odd jobs" for him, and that Roach was "an

excellent employee." Tammy Estes, Roach's half sister, stated

that Roach often helped his neighbors, including Hughes, cut

firewood, cook, and clean their laundry.

Wendell Lamb, the pastor of Roach's church, testified that

Roach volunteered his time to help paint and remodel the church

and to work at a camp for children in the George Washington

National Forest. Lamb conceded that, while Roach was doing

volunteer work for the church, he was accused of stealing a

watch. Roach and the owner of the watch resolved the dispute

privately.

Roach testified on his own behalf. He stated that, shortly

after 9:00 p.m. on December 3, 1993, he walked to Hughes's house

with his shotgun. When she opened the door, he fired once,

walked past her body, and took her purse and the keys to her car.

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He stated that he then drove to North Carolina and attempted to

use her Discover credit card to get cash. Roach testified that

he did not know Hughes had died until he spoke by telephone with

his aunt.

Roach also testified that, when he went to Hughes's house,

he knew she had just received her social security check, knew the

location of her purse, and intended to steal both items.

However, he stated that he did not intend to hurt her, and that

he could not explain "what went . . . through [his] mind." He

also testified that he was sorry he had killed Hughes, stating,

"I wish I could bring her back."
Dr. Gary Lee Hawk, a forensic psychologist appointed by the

court, testified concerning his evaluation of Roach. Hawk met

with Roach on six different occasions and spoke with Roach's

parents and other family members. Hawk determined that Roach was

of average intelligence and had mild depressive symptoms. Hawk

found no indication that Roach had suffered any brain injury. He

also found no evidence that Roach suffered from any serious

mental illness.

Hawk testified that Roach lied to him about a number of

things and gave him four different versions of what happened on

December 3, 1993. He also stated that Roach was "particularly

immature" for his age. Hawk concluded that Roach had poor

"impulse control" and "did not show very good ability in many

situations to control his emotions or behavior like seventeen-

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year-old or eighteen-year-old individuals should do."

Hawk related Roach's immaturity to the fact that he did not

get the guidance and the structure that children need to mature.

Hawk further stated that Roach's probation violation for

carrying a weapon was a result of this lack of structure and

supervision. He also testified that there was no pattern of

violent behavior in Roach's life.

Hawk stated that, in psychological terms, Roach's act of

killing a friend arose from the fact that "[a]dolescents in

conflict, adolescents in turmoil frequently express extremely

strong and angry emotions with very little provocation . . . If

it's an immature adolescent, that sort of reaction is more

extreme." Hawk stated that "displacement of emotion" occurs when

one person or situation makes a person angry, but the feelings

and anger are expressed toward someone else.
Hawk stated, "Knowing that this was a woman that [Roach] was

close to, and knowing that there was not an existing pattern of

this sort of violent offending, and considering what he told me,

it's dynamics like that [which] would explain [the murder] in

psychological terms." In addition, Hawk testified that, "[i]n

terms of normal development," impulsiveness diminishes and

"doesn't cause problems for the person."

III. ARGUMENTS WAIVED

Because Roach did not address in his briefs assignments of

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error 15(c), 16(f), and 16(h), he is deemed to have waived them. 3

Rule 5:27. Also, since Roach did not ask the trial court to

strike certain prospective jurors for cause, after they heard

another prospective juror state a belief that Roach was guilty,

he has waived this objection to the empanelment of those jurors.

Rule 5:25. 4

IV. ISSUES PREVIOUSLY DECIDED

Roach has advanced a number of arguments that we have

rejected in previous decisions. Finding no reason to modify our

previously expressed views, we will reaffirm our earlier

3
These assignments of error are:

15(c): Virginia's juvenile transfer statute is
unconstitutional as applied.

16(f): The trial court erred in overruling the motion to
prohibit the imposition of the death penalty and to strike the
capital murder charge on the grounds that the post-sentence
report infringes upon the defendant's rights to due process, to
confront his accusers, to be free from cruel and unusual
punishment, and to effective assistance of counsel.

16(h): Virginia's death penalty statutes as administered
deny capital defendants effective assistance of counsel.

4
Roach has also argued that he received ineffective

assistance of counsel during voir dire based on this occurrence.

However, such a claim is not reviewable on direct appeal.

Walker v. Mitchell, 224 Va. 568, 570, 299 S.E.2d 698, 699 (1983);

Browning v. Commonwealth, 19 Va. App. 295, 297, n.2, 452 S.E.2d

360, 362, n.2 (1994); see Acts 1990, ch.74.

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decisions and reject the following contentions:

A. The denial of a jury instruction that Roach would be

required to serve a minimum of twenty-five years before becoming

eligible for parole. In Joseph v. Commonwealth, 249 Va. 78, 84,

452 S.E.2d 862, 866, cert. denied, ___ U.S. ___, 116 S.Ct. 204

(1995), we held that such an instruction is not available to

defendants who will be eligible for parole at a future date.

B. The trial court's refusal to limit evidence of juvenile

and unadjudicated crimes as background evidence at sentencing.

Rejected in Beaver v. Commonwealth, 232 Va. 521, 528-29, 352
S.E.2d 342, 346-47, cert. denied, 483 U.S. 1033 (1987).

C. The Virginia transfer statute does not provide

individualized consideration of a juvenile's moral culpability

and maturity. Rejected in Wright v. Commonwealth, 245 Va. 177,

182-83, 427 S.E.2d 379, 383-84 (1993), vacated and remanded, ___

U.S. ___, 114 S.Ct. 2701 (1994), aff'd, 248 Va. 485, 450 S.E.2d

361 (1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1800 (1995);
Thomas v. Commonwealth, 244 Va. 1, 7, 419 S.E.2d 606, 609, cert.

denied, 506 U.S. 958 (1992).

D. The sentencing verdict form prescribed by Code

§ 19.2-264(D) renders the jury's option of imposing a life

sentence unconstitutionally vague and obscures mitigation

evidence. We rejected these contentions in Stockton v.

Commonwealth, 241 Va. 192, 215, 402 S.E.2d 196, 209, cert.
denied, 502 U.S. 902 (1991), and in LeVasseur v. Commonwealth,

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225 Va. 564, 594-95, 304 S.E.2d 644, 661 (1983), cert. denied,

464 U.S. 1063 (1984). Thus, we find no error in the trial

court's refusal to substitute Roach's proposed verdict form for

the statutory sentencing verdict form.

E. The death penalty statutes do not give meaningful

guidance to jurors that they may impose a death sentence only if

they determine beyond a reasonable doubt that aggravating

circumstances outweigh mitigating ones. Rejected in Breard v.
Commonwealth, 248 Va. 68, 74, 445 S.E.2d 670, 674-75, cert.

denied, ___ U.S. ___, 115 S.Ct. 442 (1994); Watkins v.

Commonwealth, 229 Va. 469, 490-91, 331 S.E.2d 422, 438 (1985),

cert. denied, 475 U.S. 1099 (1986).

F. Code § 19.2-264.4(C) violates the defendant's rights

under the Eighth and Fourteenth Amendments to the United States

Constitution because the jury may find future dangerousness based

upon unadjudicated crimes. Rejected in Evans v. Commonwealth,

222 Va. 766, 770, 284 S.E.2d 816, 817-18 (1981), cert. denied,

455 U.S. 1038 (1982); see also Watkins v. Commonwealth, 238 Va.
341, 352, 385 S.E.2d 50, 56 (1989), cert. denied, 494 U.S. 1074

(1990).

G. The capital murder and death penalty statutes as

administered are unconstitutional for every reason cited by the

majority in Furman v. Georgia, 408 U.S. 238 (1972). In

Fitzgerald v. Commonwealth, 223 Va. 615, 635-36, 292 S.E.2d 798,

810 (1982), cert. denied, 459 U.S. 1228 (1983), we held that the

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Virginia capital murder statutes eliminated the constitutional

violations identified in Furman. Further, in Clark v.

Commonwealth, 220 Va. 201, 212, 257 S.E.2d 784, 791 (1979), cert.

denied, 444 U.S. 1049 (1980), we rejected the argument that the

Virginia death penalty sentencing statutes violated the

restrictions of the Furman holding.

H. The death penalty statutes deny defendants meaningful

appellate review and deny defendants equal protection of the law

and due process of law because of the single tier of appellate

review of death sentences. Rejected in Payne v. Commonwealth,
233 Va. 460, 473-74, 357 S.E.2d 500, 508, cert. denied, 484 U.S.

933 (1987).

V. PRETRIAL MATTERS

A. Juvenile Court Issues

Roach contends that the statutes defining the authority of

juvenile court intake officers violate the separation of powers

clauses of the Virginia Constitution, Art. I, § 5 and Art. III,

§ 1. He asserts that, since intake officers are employees of the

Department of Youth and Family Services, an executive agency,

they are constitutionally prohibited from exercising the judicial

powers of determining probable cause, issuing petitions or

criminal warrants, or issuing detention orders.

Initially, we note that statutes are presumed to comply with

the Virginia and United States Constitutions and will be declared

unconstitutional only when their provisions plainly violate

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either document. Etheridge v. Medical Ctr. Hosp., 237 Va. 87,

94, 376 S.E.2d 525, 528 (1989). In Winchester & Strasburg R.R.

v. Commonwealth, 106 Va. 264, 55 S.E. 692 (1906), we stated that

the separation of the executive, judicial, and legislative

branches of government is "indispensable to public liberty."

However, we emphasized that the separation required by the

Virginia Constitution is not an absolute separation. We held

that the branches of government need not "be kept wholly and

entirely separate and distinct, and have no common link or

dependence . . . The true meaning is that the whole power of one

of these departments should not be exercised by the same hands

which possess the whole power of either of the other

departments." Id. at 270, 55 S.E. at 694 (citations omitted).

The juvenile and domestic relations district court judges

share appointment, assignment, and discharge powers over the

intake officers with the Department of Youth and Family Services.

See Code §§ 16.1-233 and -235. In filing a petition to initiate

a criminal case, the intake officer makes a determination that

there is probable cause to believe that a juvenile has committed

a criminal offense. See Code § 16.1-260. However, the juvenile

and domestic relations district court, not the Department of

Youth and Family Services, has original jurisdiction over matters

involving the delinquent juvenile. Code § 16.1-241. Further,

the failure of an intake officer to file a petition does not

divest the juvenile and domestic relations district court of

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jurisdiction over the juvenile. Code § 16.1-260(G).

Thus, juvenile intake officers do not exercise the whole

power of the judiciary. Because such officers exercise only a

limited judicial function, and the juvenile and domestic

relations district court retains actual control over the

juveniles, we conclude that the intake officer's authority to

issue criminal petitions does not violate the separation of

powers guaranteed by the Virginia Constitution.
Next, Roach argues that the circuit court acquired

jurisdiction to try him only for the lesser included offense of

first degree murder. He asserts that, since the juvenile court

did not render a probable cause determination concerning the

presence of aggravating circumstances supporting imposition of

the death penalty, the circuit court did not acquire jurisdiction

to impose the death penalty. We disagree.

Before Roach could be transferred to the circuit court for

trial as an adult, the juvenile court was required by former Code

§ 16.1-269 (now § 16.1-269.1) to determine whether there was

probable cause to believe that he committed an offense which

would be a felony had it been committed by an adult. The

aggravating circumstances required for imposition of the death

penalty are not elements of the crime of capital murder. They

relate only to the punishment authorized after conviction of the

offense. Therefore, the juvenile court was not required to make

a probable cause determination of the sufficiency of the evidence

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in support of the statutory predicates for imposition of the

death penalty.

B. Bill of Particulars

Roach filed a motion for a bill of particulars. 5 The trial

5
The motion for a bill of particulars requested that the

trial court enter an order directing the Commonwealth:

a) To identify the grounds, and all of them, on which
it contends that defendant is guilty of Capital Murder
under Va. Code Ann. [§] 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.

d) If the response to (c) includes statement that
Commonwealth intends to prove the "vileness" factor as
set out in Va. Code Ann. § 19.2-264.4C, to identify as
many of the components of the factor, torture,
depravity of mind, aggravated battery on which it
intends to offer evidence.

e) If the response to (c) include statements that
Commonwealth intends to prove the "vileness" factor as
set out in Va. Code Ann. § 19.2-264.4C, to identify
every narrowing construction of that factor on which it
intends to offer evidence.

f) If the response to (c) include statements that the
Commonwealth intends to use to prove the "future
dangerousness" factor as set out in Va. Code Ann. §
19.2-264.4C, to identify any unadjudicated 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.

g) 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

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court granted the motion with respect to paragraph (f) involving

unadjudicated allegations of misconduct and "any circumstances of

the offense [the Commonwealth] contends are relevant to proof of

the [future dangerousness] factor." The court denied the balance

of the motion. Roach argues that the trial court's denial of the

remaining parts of the motion constitutes error based on the

gravity of the penalty sought. We disagree.

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

matter of right. Code § 19.2-230 provides that a court "may

direct the filing of a bill of particulars." Thus, the trial

court has discretion whether to require the Commonwealth to file

a bill of particulars. Quesinberry v. Commonwealth, 241 Va. 364,

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

If the indictment gives a defendant sufficient "notice of

the nature and character of the offense charged so he can make

his defense," no bill of particulars is required. 6 Wilder v.

(..continued)
death is the appropriate punishment for this Defendant.

6
The capital murder indictment alleged that "[o]n or about

December 3, 1993, STEVE EDWARD ROACH . . . did, in the County of

Greene, unlawfully and feloniously commit capital murder by the

willful, deliberate, and premeditated killing of Mary Ann Hughes

in the commission of robbery while armed with a deadly weapon,

which offense is punishable as a felony in violation of Section

18.2-31(4) of the Code of Virginia."

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Commonwealth, 217 Va. 145, 147, 225 S.E.2d 411, 413 (1976). The

indictment in this case met that standard. Therefore, the trial

court did not abuse its discretion in denying the balance of

Roach's motion. See Strickler v. Commonwealth, 241 Va. 482, 490,

404 S.E.2d 227, 233, cert. denied, 502 U.S. 944 (1991).

C. Voluntariness of Roach's Confession

Roach argues that the trial court erred in refusing to

suppress his confession as being involuntary "for purposes of

exposing him to the death penalty." Roach asserts that his

waiver of Miranda rights was "questionable," and that he made his
statements based on the mistaken belief that he would receive the

benefit of a lesser penalty in exchange for admitting that he had

shot Hughes. He contends that the statements were induced by

Sheriff Morris's allegedly misleading remarks such as "the truth

is so very, very important to you, to us and to yourself."

In assessing the voluntariness of Roach's statement, we

apply a well-established standard of review. In Gray v.
Commonwealth, 233 Va. 313, 356 S.E.2d 157, cert. denied, 484 U.S.

873 (1987), we said:
A defendant's waiver of his Miranda rights is valid
only if the waiver is made knowingly, voluntarily and
intelligently, Miranda, 384 U.S. at 475. Whether a
statement is voluntary is ultimately a legal rather
than factual question. See Miller v. Fenton, 474 U.S.
104, 110, 106 S.Ct. 445, 450 (1985). Subsidiary
factual questions, however, are entitled to a
presumption of correctness. Id. at 112, 106 S.Ct. at
451. The test to be applied in determining
voluntariness is whether the statement is the "product
of an essentially free and unconstrained choice by its
maker," or whether the maker's will "has been overborne
and his capacity for self-determination critically

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 impaired." Schneckloth v. Bustamonte, 412 U.S. 218,
225 (1973). In determining whether a defendant's will
has been overborne, courts look to "the totality of all
the surrounding circumstances," id. at 226, including
the defendant's background and experience and the
conduct of the police, Correll v. Commonwealth, 232 Va.
454, 464, 352 S.E.2d 352, 357 (1987); Stockton, 227 Va.
at 140, 314 S.E.2d at 381.

Id. at 324, 356 S.E.2d at 163.

The record shows that Roach was of average intelligence, and

that he telephoned Sheriff Morris to initiate the questioning.

Prior to the interrogation, Morris advised Roach and Roach's

father of Roach's Miranda rights. Although John Roach was not

present during the interrogation, both he and Steve Roach

indicated that they understood the Miranda rights and they signed

the waiver forms. During the interrogation, there was no mention

of the death penalty at any time. Roach stated to Morris that he

was making the statements of his own free will, without pressure

of threats or promises.

We also consider the factual findings made by the trial

court. The trial court found that Roach "was not intoxicated

[and] understood his surroundings and the questions asked of

him." The court found that the interrogation atmosphere was not

coercive and that Roach had not been threatened in any way. The

court found that the entreaties to Roach to tell the truth did

not overbear Roach's will. Because these factual findings are

supported by the record, we accord them substantial weight in our

determination whether Roach's statements were voluntary. Miller

v. Fenton, 474 U.S. 104, 112 (1985).

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 Based on the above evidence and findings, we hold that

Roach's statements were voluntary. No threats or promises were

made to induce the confession and there is no evidence indicating

that the confession was coerced. Instead, the evidence

demonstrates that the statements were the product of Roach's free

and unconstrained choice.

D. Venue

Roach filed a motion for a change of venue on the basis that

the crime, a "high profile" murder in a rural setting, rendered

the trial court unable to empanel an impartial jury. The trial

court took the motion under advisement and, after the jury was

empaneled, overruled the motion.
Roach argues that the trial court erred in denying his

motion for a change of venue because the pretrial publicity was

widespread and prejudicial. He notes that over 50 percent of the

jury pool was familiar with Roach, the victim, members of her

family, the Commonwealth's Attorney, or witnesses. The trial

court observed, however, that although 31 jurors were stricken

for cause, "a large number of those were stricken because of

their view concerning the death penalty and not because of any

evidence of bias for or against the accused or the prosecution."

A presumption exists that a defendant can receive a fair

trial in the jurisdiction in which the offense occurred.

Stockton, 227 Va. at 137, 314 S.E.2d at 380. In order to

overcome this presumption, a defendant must demonstrate that the

- 22 -
citizens of the jurisdiction feel such prejudice against the

defendant as is reasonably certain to prevent a fair trial. Id.

Further, the decision whether to grant a change of venue lies

within the sound discretion of the trial court. George v.

Commonwealth, 242 Va. 264, 274, 411 S.E.2d 12, 18, cert. denied,

503 U.S. 973 (1992).

The fact that there have been media reports about the

accused and the crime does not necessarily require a change of

venue. Buchanan v. Commonwealth, 238 Va. 389, 407, 384 S.E.2d

757, 767-68 (1989), cert. denied, 493 U.S. 1063 (1990). Another

significant factor the trial court must consider is "the

difficulty encountered in selecting a jury." Mueller v.

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

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

Roach did not overcome the presumption that he could receive

a fair trial in Greene County. He concedes that only six members

of the jury pool were so prejudiced by media coverage that they

could not give him a fair trial. Given the relative ease with

which the jury was selected, we hold that the trial court did not

abuse its discretion in denying Roach's motion for a change of

venue.

E. Jury Selection

Roach next argues that the trial court erred in refusing to

strike for cause juror Breeden. During voir dire, juror Breeden

testified that Daniel Bouton, the Commonwealth's Attorney,

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formerly had represented him in a legal matter. Although Bouton

was not representing Breeden in any matter at the time of trial,

Breeden stated that he would regard Bouton as his personal

attorney. Breeden also testified that his former connection with

Bouton would not affect his ability to be impartial. Roach

argues that this relationship presented an inherent conflict, and

that Breeden was more likely to be influenced by Bouton's closing

argument because he was accustomed to looking to Bouton for legal

guidance.
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, 241 Va. at 200, 402 S.E.2d at 200. Further, in

Calhoun v. Commonwealth, 226 Va. 256, 263, 307 S.E.2d 896, 900

(1983), we refused to adopt a per se rule disqualifying a juror

solely because the juror had been represented by the

Commonwealth's Attorney at some time in the past.

In the present case, the trial court had the opportunity to

observe Breeden's demeanor when evaluating his statement that his

ability to be impartial would not be affected by his former

association with Bouton. Nothing in the record suggests that the

trial court abused its discretion in accepting Breeden's

statement that he could be impartial in the trial of the case.

Thus, we find no merit in Roach's argument. 7

7
We also find no merit in Roach's claim that his Fourteenth

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 VI. GUILT PHASE ISSUES

Roach argues that the trial court erred in refusing to set

aside the verdict of capital murder based on the alleged absence

of evidence corroborating his confession that he was the

"triggerman." Roach asserts that his confession was inadequate

as a matter of law to establish that he was the immediate

perpetrator of the killing.

In addition, Roach argues that the trial court erred in

failing to instruct the jury that the "triggerman" portion of his

confession had to be corroborated before he could be convicted of

capital murder. He also assigns as error the court's refusal of

an instruction defining a principal in the second degree, as well

as its refusal of an instruction that only the immediate

perpetrator of a killing can be convicted of capital murder. We

disagree with the above assertions.
The Commonwealth need not corroborate an entire confession,

but it must corroborate the elements of the corpus delicti.

Watkins, 238 Va. at 348, 385 S.E.2d at 54. 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

(..continued)

Amendment rights were violated by the trial court's refusal to

strike Breeden for cause. The record before us offers no support

for such a claim.

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victim's death from the criminal act or agency of another

person." Swann v. Commonwealth, 247 Va. 222, 236, 441 S.E.2d

195, 205, cert. denied, ___ U.S. ___, 115 S.Ct. 234 (1994). The

testimony of Dr. Kay, the medical examiner, established that

Hughes died from a shotgun wound to the chest. There was no

evidence that the wound was self-inflicted. Further, the

Commonwealth produced evidence which tended to corroborate that

Roach was the "triggerman" in the killing.
The Commonwealth showed that Roach owned a 12 gauge shotgun

and that he had shot number eight shot from it the day before the

murder. The shot and wadding retrieved from Hughes's chest were

consistent with the type used in Roach's weapon. The

Commonwealth also produced evidence taken from Hughes's car

including a number eight shot shell casing, as well as latent

fingerprints which matched Roach's fingerprints.

The corpus delicti of robbery, the predicate offense of this

capital murder charge, was also corroborated by evidence

independent of Roach's confession. The autopsy report revealed

evidence of violent force used on Hughes, and the videotape from

the automatic teller machine showed Roach attempting to use

Hughes's credit card. Further, as stated above, latent

fingerprints matching Roach's fingerprints were found in Hughes's

vehicle, which was taken from the murder scene.

Since the Commonwealth sufficiently corroborated the corpus
delicti of capital murder, the trial court did not err in denying

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Roach's motion to set aside the verdict. Likewise, the court did

not err in failing to instruct the jury that Roach's confession

that he was the "triggerman" must be corroborated since the court

had already correctly determined, as a matter of law, that the

confession was sufficiently corroborated to go to the jury. See

Watkins, 238 Va. at 350-51, 385 S.E.2d at 55.

Finally, there was no error in the trial court's refusal to

give a jury instruction that only the immediate perpetrator of

the killing can be found guilty of capital murder. There was no

evidence that Roach acted with an accomplice other than the first

version of his confession, which he later recanted. Also, since

his theory that another person was the triggerman was unsupported

by the evidence, Roach was not entitled to an instruction

defining a principal in the second degree. See Eaton v.

Commonwealth, 240 Va. 236, 255, 397 S.E.2d 385, 397 (1990), cert.

denied, 502 U.S. 824 (1991).

VII. PENALTY PHASE ISSUES
Juror Question

Roach contends that the jury prematurely began deliberations

during the penalty phase of the trial. In support of his claim,

he notes that, after the jury had been instructed but before it

began deliberating, one juror asked the trial court, "Does life

in prison mean with no chance of parole or truly life in prison,

or is he eligible for parole?"

At this point, Roach's counsel informed the trial court that

- 27 -
"unless the possibility can be excluded that this question

originated solely with one juror, the defense would respectfully

move for a mistrial." The trial court declined to question the

jury on the matter, but gave the jury an additional instruction

stating, "Having found the defendant guilty, you should impose

such punishment as you feel is just under the evidence and within

the instructions of the Court. You are not to concern yourself

with what may happen afterwards."
We find no merit in Roach's claim. The question posed by

the individual juror does not indicate that the jury had begun

deliberating Roach's penalty. Thus, the trial court did not

abuse its discretion in denying the mistrial motion.

Jury Instructions

Roach argues that the trial court erred in refusing to

instruct the jury on the meaning of the word "probability," in

the context of the "future dangerousness" provision of Code

§ 19.2-264.2. We disagree. In Mickens v. Commonwealth, 247 Va.

395, 403, 442 S.E.2d 678, 684, vacated on other grounds, 513 U.S.
___, 115 S.Ct. 307 (1994), we held that the word "probability,"

as it appears in the statutory context of the "future

dangerousness" predicate, is not ambiguous. Therefore, Roach was

not entitled to a jury instruction defining that word. See

Lovisi v. Commonwealth, 212 Va. 848, 850, 188 S.E.2d 206, 207,

208 (1972).

Roach next asserts that he was denied his Fourteenth

- 28 -
Amendment right of equal protection, because he was refused an

instruction informing the jury that, if he received a life

sentence on the capital murder charge, he would not be eligible

for parole for 25 years. In contrast, Roach argues, certain

"adjudicated recidivists" are entitled to an instruction

informing the jury that they would be ineligible for parole if

given a life sentence for the same offense. See Simmons v. South

Carolina, 512 U.S. 2198 (1994).
As stated above, in applying the rule of Simmons, this Court

has held that a defendant charged with capital murder is entitled

to an instruction regarding parole eligibility only when (1) the

defendant's future dangerousness is in issue, and (2) the

defendant is ineligible for parole at the time he is sentenced on

the capital murder charge. Wright, 248 Va. at 487, 450 S.E.2d at

362. Since Roach does not contend that he was ineligible for

parole when he was sentenced, he was not entitled to an

instruction regarding parole eligibility. Moreover, Roach has

not suffered a denial of equal protection from the refusal of

such an instruction, because a non-suspect classification is

involved here and that classification "rationally advances a

reasonable and identifiable governmental objective." Schweiker

v. Wilson, 450 U.S. 221, 235 (1981); see Evans, 228 Va. at 481,

323 S.E.2d at 122.

When a "recidivist" is ineligible for parole at the time of

sentencing on a capital murder charge, this fact is relevant to

- 29 -
the issue whether "there is a probability that the defendant

would commit criminal acts of violence that would constitute a

continuing serious threat to society." See Code § 19.2-264.2(1).

In contrast, the fact that Roach would be eligible for parole in

25 years is not probative of this issue. This fact could do

nothing more than invite the jury to speculate on the effect

incarceration might have on Roach. The elimination of such

improper speculation provides a rational basis supporting the

denial of the requested instruction. Thus, Roach's equal

protection claim fails. See Schweiker at 235.

Standard of Proof for Future Dangerousness

Roach argues that, because this Court has never reversed a

death sentence based on insufficiency of evidence of "future

dangerousness," "Virginia cases articulate no standards to

confine the reach of" that sentencing factor. Roach contends

that such standards must be articulated.

We disagree, because the conclusion Roach urges ignores the

central purpose of Code § 19.2-264.2, that of individualized

consideration of the defendant and the crime committed. Under

the direction of Code § 19.2-264.2, the trier of fact may not

impose the death penalty unless it finds "future dangerousness"

beyond a reasonable doubt, upon consideration of all relevant

evidence of the defendant's background, as well as the crime for

which the defendant is being sentenced. This individualized

consideration necessarily precludes the articulation of precise

- 30 -
requirements for a finding of "future dangerousness." Moreover,

a defendant is protected from an unsupported finding of "future

dangerousness" by the right to appellate review of the

sufficiency of the evidence in support of that finding.

Sufficiency of Evidence

of "Future Dangerousness"

Under Code § 19.2-264.2, the death penalty may not be

imposed unless the trier of fact shall find one or both of two

aggravating factors we have referred to as "future dangerousness"

and "vileness." Yeatts v. Commonwealth, 242 Va. 121, 139, 410

S.E.2d 254, 265 (1991), cert. denied, 503 U.S. 946 (1992). In

the present case, the jury found "future dangerousness," meaning

"there is a probability that [Roach] would commit criminal acts

of violence that would constitute a continuing serious threat to

society." Code § 19.2-264.2.

Roach argues that the Commonwealth failed to produce

sufficient proof of his "future dangerousness." He first

emphasizes that the only expert psychological testimony at the

penalty phase was given by Dr. Hawk, who stated that there was no

pattern of violent behavior in Roach's life. Although he

concedes that "[a]ll of [his] misconduct arguably involved

potential for violence," Roach asserts that the Commonwealth

never introduced evidence of any actual or threatened violence in

his past behavior. He also notes that his misconduct occurred

only during the period of his family's "disintegration."

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Further, given his difficult family background and the fact that

he had only one probation violation prior to December 3, 1993,

Roach asserts that the jury's finding of "future dangerousness"

is unsupported by the evidence. We disagree.

The evidence in the penalty phase showed that, within

approximately a seven-month period prior to Roach's murder of

Hughes, he had broken and entered a private residence, stolen a

.357 Magnum pistol from that dwelling, committed two automobile

larcenies, and violated a condition of his probation.
As this Court emphasized in Yeatts,
Burglary laws are based primarily upon a recognition of
the dangers to personal safety created by the usual
burglary situation - the danger that the intruder will
harm the occupants in attempting to perpetrate the
intended crime or to escape and the danger that the
occupants will in anger or panic react violently to the
invasion, thereby inviting more violence.

242 Va. at 140, 410 S.E.2d at 266 (citations omitted). Thus,

Roach's commission of burglary, and his theft of a .357 Magnum

pistol during the burglary, were relevant evidence in determining
8
his "future dangerousness." See id.

The jury also heard evidence from John Frey, Roach's

probation officer, that Roach violated his probation in carrying

a shotgun. Violent behavior arose from this probation violation

8
The fact that the dwelling Roach broke and entered was

unoccupied at the time of the offense is a fortuitous

circumstance that does not affect our analysis here.

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when Roach used the shotgun to kill Mrs. Hughes. Therefore, both

the fact of the violation and its particular nature were relevant

evidence in the jury's determination of "future dangerousness."

Most significantly, this Court has recognized that the facts

and circumstances surrounding the capital murder alone may be

sufficient to support a finding of "future dangerousness." See

Murphy v. Commonwealth, 246 Va. 136, 145, 431 S.E.2d 48, 53,

cert. denied, 510 U.S. ___, 114 S.Ct. 336 (1993). Here, Roach

killed a defenseless, 70-year-old neighbor because he wanted her

money. He admitted that Mrs. Hughes had always been kind to him.

Yet, after shooting her at point-blank range, he walked past her

body, robbed her of her money and car keys, and left her lying on

the floor.
From this evidence, the jury was entitled to conclude that

Roach placed little value on human life and was willing to kill

even a defenseless friend in order not to be identified as the

perpetrator of a robbery. Given Roach's escalating pattern of

criminal behavior culminating in the murder of Mrs. Hughes, the

jury had sufficient evidence from which to find, beyond a

reasonable doubt, that there was a probability that Roach would

commit criminal acts of violence that would constitute a

continuing serious threat to society.

Our conclusion in this regard is not altered by Dr. Hawk's

testimony. Although he testified that Roach had no pattern of

violent behavior in his life, the jury was entitled to weigh this

- 33 -
opinion in conjunction with all the evidence of Roach's criminal

behavior, including the facts and circumstances surrounding his

robbery and murder of Mrs. Hughes.

Roach also argues that the "trial court erred [by] finding

that no good cause had been shown to set aside the sentence of

death and impose a sentence of imprisonment for life." In

reviewing the record pursuant to Code § 19.2-264.5, the trial

court is vested with discretion, upon good cause shown, to set

aside the sentence of death. Here, the record shows that the

trial court reviewed all evidence presented in both mitigation

and aggravation of the offense. Based on the evidence presented,

we cannot conclude that the trial court erred in finding an

absence of "good cause shown" to set aside the jury verdict of

death and to impose a sentence of life imprisonment.
VIII. 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."

A. Passion and Prejudice

Roach contends that the sentence of death was imposed under

the influence of passion, prejudice, or other arbitrary factor.

In support of his argument, he restates several of the errors

- 34 -
assigned above. 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).
B. Excessiveness and Proportionality

Roach contends that the death sentence is excessive and

disproportionate to those imposed in similar cases. He argues

that comparable death sentence cases involve "fact patterns more

aggravated as to (1) surrounding circumstances of the offense,

(2) age and background of the defendant and (3) unrebutted

defense evidence offered in mitigation." With regard to evidence

in mitigation, Roach relies primarily on Dr. Hawk's testimony and

the other testimony concerning Roach's school, work, and family

life.

In conducting the 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

- 35 -
compared the record in this case with the records in other

capital murder cases 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).

Here, the jury based its sentence of death only on the

"future dangerousness" predicate. Therefore, in making our

proportionality determination we have given particular

consideration to other capital murder cases in which robbery was

the underlying felony and the death penalty was based only on the

"future dangerousness" predicate.
Those cases were compiled in Yeatts, 242 Va. at 143, 410

S.E.2d at 267-68, and supplemented in Chichester v. Commonwealth,

248 Va. 311, 332-33, 448 S.E.2d 638, 652 (1994), cert. denied,

___ U.S. ___, 115 S.Ct. 1134 (1995). The following additional

cases involving robberies and findings of "future dangerousness"

were decided after Chichester and have been considered by us:
Chandler v. Commonwealth, 249 Va. 270, 455 S.E.2d 219, cert.

denied, ___ U.S. ___, 116 S.Ct. 233 (1995); Joseph, 249 Va. 78,

452 S.E.2d 862. We have also reviewed the records in capital

murder cases in which robbery was the underlying offense and a

sentence of life imprisonment was imposed.

Based on this review, we conclude that, while there are

exceptions, juries in this Commonwealth generally impose the

death sentence for crimes comparable or similar to Roach's murder

- 36 -
of Mrs. Hughes. Roach killed an elderly, defenseless friend with

a shotgun at point blank range in the process of robbing her of a

portion of her social security funds. This crime, like the other

death sentence crimes we have reviewed, shows extreme cruelty and

lack of respect for human life.

In addition, although there was evidence in mitigation

concerning Roach's status as a 17-year-old offender and his

family background, the present case also involved significant

evidence in aggravation of the offense. As stated above, Roach

had been found guilty of four felonies in the seven-month period

prior to the commission of this offense. Although he had been on

supervised probation since August 1993, this rehabilitative

measure did not deter Roach from carrying a weapon in violation

of the terms of his probation. Moreover, his use of this weapon

to kill Mrs. Hughes represented the ultimate failure of

rehabilitative efforts on his behalf. Given this escalating

pattern of criminal behavior, which culminated in the commission

of the present offense, we conclude that the imposition of the

death penalty in this case is neither excessive nor

disproportionate to the penalty imposed in comparable cases.
IX. CONCLUSION

We find no reversible error in the issues presented here.

Having reviewed Roach's sentence of death pursuant to Code

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

Accordingly, we will affirm the judgment of the trial court.

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 Affirmed.

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