Russell Ervin Brown, III v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Huff, Judges Russell and Malveaux
Argued at Richmond, Virginia
PUBLISHED

RUSSELL ERVIN BROWN, III
OPINION BY
v. Record No. 0434-17-2 CHIEF JUDGE GLEN A. HUFF
MAY 22, 2018
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
Paul W. Cella, Judge

Matthew L. Engle (Bernadette M. Donovan; Douglas A. Ramseur;
Seth T. Shelley; Shameka L. Hall; Jacqueline M. Reiner; Donovan
& Engle, PLLC; Office of the Capital Defender, Central Region;
Jacqueline M. Reiner, PLLC, on briefs), for appellant.

Eugene Murphy, Senior Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.

Russell Ervin Brown, III, (“appellant”) appeals his convictions of capital murder and

attempted capital murder, in violation of Code § 18.2-31; attempted murder, in violation of Code

§ 18.2-32; and three counts of use of a firearm in the commission of a felony, in violation of

Code § 18.2-53.1. Following a jury trial, the Circuit Court of Dinwiddie County (“trial court”)

sentenced appellant to the jury’s recommended sentence of two life sentences for the capital

murder and attempted capital murder charges, ten years for the attempted murder charge, and a

total of thirteen years for the firearm charges. On appeal, appellant raises seven assignments of

error:

1. The trial court erred in denying [appellant’s] Motion for
Grand Jury Information for the Preceding Five Years.

2. The trial court erred in denying [appellant’s] motions for
change of venue.
 3. The trial court erred in limiting questioning and denying
[appellant’s] motion to strike prospective jurors Delores
Palmer and Aaron Whitworth for cause.

4. The trial court erred in denying [appellant’s] motion to strike
the capital murder charge.

5. The trial court erred in denying a second-degree murder
instruction.

6. The trial court erred in admitting testimony about an alleged
statement made by [appellant] during his arraignment.

7. The trial court erred in denying [appellant’s] Motion to Set
Aside the Verdict.

For the following reasons, this Court affirms appellant’s convictions.

I. BACKGROUND

On appeal, “we consider the evidence and all reasonable inferences flowing from that

evidence in the light most favorable to the Commonwealth, the prevailing party at trial.”

Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc)

(quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed,

the evidence is as follows.

The Shooting

On March 7, 2013, appellant shot and killed Virginia State Trooper Junius Alvin Walker

on the shoulder of Interstate 85 in Dinwiddie County. Appellant had pulled his car onto the

shoulder because it “had been running hot.” Walker activated his police cruiser’s blue lights and

pulled over beside appellant’s car, at which point appellant—without provocation—fired

numerous shots into the cruiser at Walker, killing him. As Walker’s cruiser rolled toward the

woods beside the interstate, appellant followed and continued firing his rifle into it.

Thomas Hales, a delivery truck driver, was heading south on Interstate 85 at the time of

the shooting. Noticing the state police cruiser resting at the edge of the woods and finding it

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unusual, Hales pulled his truck onto the shoulder and backed toward appellant’s car and the

cruiser. He saw Walker sitting in the cruiser’s front seat “kind of slumped over” and was unsure

if Walker was alive. “[J]ust a few seconds” after Hales stepped out of his truck to investigate the

scene, he observed appellant—dressed in camouflage and holding a rifle—abruptly stand up

opposite him on the cruiser’s passenger side. Hales fled back to his truck, and just as he made it

into the driver’s seat, appellant fired multiple rounds at the truck, blowing out its passenger

window and the windshield in front of the driver’s seat. Hales returned to the interstate as

quickly as he could, took the next exit, and called 911 to report the encounter.

Meanwhile, Virginia State Police Trooper Samuel Moss came upon the scene. He saw

the conspicuous collection of appellant’s car, Walker’s police cruiser partially in the woods, and

Hales’ delivery truck parked off the interstate. He could hear the gunfire as he pulled his cruiser

onto the shoulder. As Moss parked, Hales’ box truck began to pull away from the scene. Moss

later testified that he “had no clue what was going on” when he arrived because “[t]here was no

911 call or anything like that. It was literally something [he] just came up on.” At this point,

appellant turned his attention from Hales’ truck to Moss and began firing at Moss. Moss exited

and took cover at the cruiser’s rear, where he exchanged gunfire with appellant.

As the gunfight raged on, Moss recognized he needed a more powerful weapon than his

sidearm in order to hold his position. He crept back to the driver’s seat to release the trunk, then

returned to his position at the left rear tire from which he was able to retrieve his M4 rifle from

the trunk. Moss then fired at appellant, who had taken cover inside the passenger cabin of

Walker’s cruiser. Appellant responded by diving from the cruiser onto the ground and returning

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fire from a prone position.1 Appellant used the surrounding brush as cover as the altercation

continued, “hiding behind [the brush], popping out, shooting, going back for cover.”

Eventually, appellant ran toward the front of Walker’s car into the woods and ceased

firing. Moss could not see where appellant went, but remained in position scanning for him

because Moss “didn’t want him to come across the wood line and get a better angle on me.”

Backup officers arrived on the scene shortly thereafter. The gunfight ultimately had lasted

“several minutes,” which was far longer than the “five or six seconds” Moss’s training taught

him to expect. Moss later testified that “the shots just kept coming” and that he wondered

“[h]ow much [ammunition] has he got over there?” Appellant fired no fewer than twenty-nine

rounds during the exchange.

Appellant fled into the woods after the gunfight, where he abandoned his rifle and

clothing. Immediately opposite the roadside scene, just through a stand of woods, was a small

towing business’ unfenced rear salvage lot containing several wrecked vehicles. Appellant

located a sedan there with missing windows and hid in its rear passenger floorboard area.

Dinwiddie County Sheriff’s Office Investigator Charles Lucy was familiar with the area

and heard over the radio that appellant had retreated into the woods, so he responded to the

towing business in order to intercept appellant. Lucy located the sedan and approached to

“clear” it for his safety.2 As he did so, he observed appellant lying naked on the rear floorboard.

Lucy called for backup and ordered appellant to put his hands up. Appellant yelled “don’t kill

1
Moss later testified that assuming a prone position meant lying on one’s stomach. He
stated that state troopers are instructed shoot from a prone position because it creates “a smaller
target,” making them “much harder to hit” and allowing them “to steady your weapon even
more.” Moss testified that appellant’s actions in taking the prone position and returning fire is
“what [he would] have done” in the same situation given his training.
2
The investigator later testified that “clearing a vehicle” meant to approach it, “make it
safe, know that there’s [sic] no threats inside that vehicle that can shoot or do anything, any
harm” to an officer.
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me,” and responding backup officers arrested him. Lucy later testified that appellant’s nudity

made it less likely that law enforcement officers would fire on him. Lucy stated that because

appellant wore no clothing and had visible hands, he was “able to maintain cover on [appellant]

. . . which made [him] relax a bit.” Lucy clarified that had appellant been clothed, the situation

“would have been very, very high elevated” because he knew he was responding to “an

officer-involved shooting.”

Following appellant’s arrest, Virginia State Police Trooper Walter Craig transported him

to a state police office where officers instructed him to “sit there and be quiet.” Without any

prompting, appellant volunteered various statements about his actions that day that Craig later

recounted at trial:

He stated that he sat in his car for a while, watching traffic
go by; and while he was sitting in his car, he was talking to his
father,3 and a police car pulled up beside him on the shoulder, with
no lights.
He also stated that he knows procedure, and police are
supposed to pull behind you with lights on and call for backup. He
stated that he didn’t see lights, and he saw the black officer’s face
and that he looked like a dead man and didn’t know it. [Appellant]
stated that as he saw the officer’s face, he didn’t know what
happened, and he turned into a demon, and he picked up his rifle
and shot him, and the police car kept rolling in the grass. And he
got out of his car; and after the car crashed, he kept shooting him.
He stated that he tried to get his gun, but he couldn’t get his
gun because he knew the type of holster and safety that was used.
[Appellant] stated that a truck stopped, and he shot at him too, but
he hoped that the truck driver was okay, as the truck left.
[Appellant] stated that a white police [officer] showed up,
and he shot at him too. He stated that his father told him to leave,
and he ran through the woods and the water. He took off his
clothes, and his Browns hat, and dropped them in the woods. He
stated that he saw a junk car, and he laid down in it, and he said
that a white officer shined a light in his face, and his father told
him to put his hands up and tell the truth.

3
Appellant’s biological father suffers from schizophrenia and lives in an adult care
facility. His condition, which ranged “between floridly psychotic and in remission,” made it
nearly impossible to conduct an ordinary conversation with him. Officers recovered no mobile
phone or other means of communication from the scene.
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 Grand Jury

A Dinwiddie County grand jury indicted appellant for the capital murder of Walker,

attempted capital murder of Moss, attempted murder of Hales, and three counts of using a

firearm in the commission of a felony. Appellant pled not guilty to all charges.

In a July 14, 2015 motion, appellant sought disclosure of “all grand juror information for

the preceding five years” in order to prepare a potential Sixth Amendment fair cross-section

challenge to the Dinwiddie County grand jury selection process. Counsel for appellant

contended that the previous five years of data were necessary in order to “arrive at

statistically-sound calculations.” During a hearing on October 7, 2015, the trial court asked the

Commonwealth whether it agreed that “the Defense is entitled to the jury list for the term in

which this case is scheduled to be tried.” The Commonwealth conceded that good cause existed

for granting appellant access to the grand jury list for the 2016 term. The trial court then asked

the Commonwealth whether its position was that “prior grand jury lists from prior years are not

pertinent to this case.” The Commonwealth agreed, noting its concerns for citizens’ privacy

given the voluminous nature of the request. The trial court ultimately ruled in a letter opinion

that appellant was entitled only to the “jury list for the 2016 term in which this case is tried.”

Jury Selection

Appellant also moved to change venue citing the extensive media coverage of Walker’s

murder and the closeness of the Dinwiddie community. The trial court denied that motion,

noting that it was “not prepared to move this case to a different jurisdiction without even

attempting to seat a jury.”

Jury selection in fact took six days, during which the trial court questioned six panels of

twenty prospective jurors each in order to form a pool of twenty-eight from which twelve jurors

and four alternates would be selected. The trial court began by asking each panel preliminary

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questions and dismissing jurors it found were unqualified based on those questions, then it called

in the remaining prospective jurors individually for more detailed questioning by the attorneys.

On the first day of jury selection, the trial court asked whether any members of the first panel

had “heard anything about this case from any source such as the news media.” Reviewing the

response, the trial court observed, “[i]t appears as if almost everybody has.” Following extensive

examination by the attorneys, five jurors were qualified from the first panel and seven were

excused for their familiarity with Walker or preconceived opinions of appellant’s guilt.4 Of the

second panel, only two of the prospective jurors had not heard about the case from the media or

other sources. The trial court qualified six people out of the second panel and excused another

six for their familiarity with Walker or belief in appellant’s guilt.

The trial court asked the third panel whether anyone had learned information about the

case from sources such as media reports that might affect their impartiality; six prospective

jurors responded affirmatively. After individual examination of the panel members, the trial

court qualified four members and excused two because of their familiarity with Walker or belief

that appellant was guilty. In the fourth panel, several jurors indicated familiarity with the case

from media or other sources, and ten had formed a prior opinion of appellant’s guilt or

innocence. The trial court ultimately qualified six jurors from the fourth panel after detailed

individual examination by the attorneys and excused eight for their familiarity with Walker or

fixed opinion that appellant was guilty.

The trial court considered a fifth panel, asking the usual preliminary questions including

whether anyone had heard anything about the case from sources like the media. The trial court

observed that “frankly, virtually everybody in the group” had heard something about the case.

4
The remaining members of the twenty-person panel here and in subsequent panels were
excused for other reasons, foremost among which were fixed views for or against the death
penalty and inability to understand the different burdens of proof involved in the case.
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Following individual examination, the trial court qualified five prospective jurors and excused

eight based on their familiarity with Walker or opinion that appellant had committed the charged

crimes. After the fifth panel, the trial court had qualified twenty-six of the twenty-eight jurors

necessary to proceed. It accordingly summoned a sixth panel of twenty jurors, half of whom

acknowledged hearing about the case from sources like the media. The trial court qualified the

first two prospective jurors individually questioned by the attorneys, completing the pool of

twenty-eight members. Both parties made their peremptory strikes on the following day, leaving

the final jury of twelve members and four alternates.

Two members of the final jury, Delores Palmer and Aaron Whitworth, survived motions

to strike for cause during the initial selection process. Asked by one of the Commonwealth’s

attorneys whether she had formed any opinions regarding appellant’s guilt, Palmer indicated she

believed “he did it” and noted that opinion was based on the media reports about the crime. She

immediately thereafter stated that she “still [had] to draw my own answer” and that “my opinion

just now wouldn’t decide on what I heard. I need to, like I told you before, to hear the rest of the

facts of what happened . . . . I could decide from that.” During examination by defense counsel,

she maintained that she could put her opinions aside. She stated: “We all form—everybody

form[s] opinions, but to hear the facts would decide my decision once everything is laid out . . .

because that was then; this is now. . . . I can come to a clear conclusion after everything is said

and done.” Appellant moved to strike Palmer based on her preformed opinion that appellant was

guilty. After hearing argument, the trial court ruled that

the standard is whether a person has some fixed opinion that would
prevent them from hearing the evidence and deciding the case
based on the evidence. And the fairest characterization of her
answer as a whole was, “Yes, I had an opinion. I heard something
about this in the news, but I would have to listen to the evidence
before deciding the case.” So your motion will be overruled[.]

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 Appellant similarly moved to strike Whitworth, who eventually became the jury

foreperson, because of his familiarity with the case from media reports and his prior experiences

with mental health issues during a divorce. During the Commonwealth’s questioning,

Whitworth affirmed that he would be able to decide the case “based solely on the evidence

presented in the courtroom.” He conceded that he had “followed [the case] pretty heavily when

it happened” and that “[i]t would be hard not to form an opinion” about the case based on the

media exposure. He stated that “[i]t would be very difficult to—you can’t unlearn something,

and especially with something that was as shocking as what happened to Trooper Walker. You

can’t leave that at the door, and that is all I was alluding to.” He clarified that he did not “know

enough about what happened to be able to base a judgment on that” and indicated that he would

not let the media reports about the case affect his judgment. Despite becoming emotional while

discussing his prior personal experiences with mental health issues in his family, Whitworth

maintained those experiences would not prevent him from fairly considering appellant’s case.

The trial court ruled:

Well, he was a thoughtful and emotional individual, but, as I said,
that is not a disqualification.
I think he indicated that his wife had some mental
difficulties in his judgment and that he had some media
information, but I think he was sufficiently rehabilitated in that he
indicated that he would not let the media coverage affect his
judgment. I think he made the statement that the media is
entertainment.
I think he also said, after a thoughtful presentation, that he
would not let his issues with his wife affect his judgment regarding
the mental health evidence in the case, so I think that he was
sufficiently rehabilitated, and the motion will be denied[.]

Appellant renewed his motion to change venue at the conclusion of jury selection,

arguing that the difficulty in seating a jury justified the relocation. Appellant emphasized the

length of time jury selection took and the pervasive media coverage that the vast majority of the

venire had seen. In its ruling from the bench, the trial court first noted the presumption that “the
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defendant will receive a fair trial in the jurisdiction where the offense occurred and that . . . the

defendant bears the burden of overcoming this presumption.” The trial court recognized that

media publicity and appellant’s proposed insanity defense to the capital murder charge were

special considerations that necessitated a longer selection process. It noted that the slower

selection process “was due to the fact that we were being thorough and careful about a case that

involved multiple considerations.” After discussing in considerable detail the governing

precedent and arguments by counsel, the trial court denied the motion.

Proceedings at Trial

At the conclusion of the Commonwealth’s case-in-chief, appellant moved to strike the

capital murder charge on the grounds that the Commonwealth did not prove appellant’s intent to

interfere with Walker’s official duties. Finding that the Commonwealth’s evidence supported an

inference of that intent, the trial court denied the motion.

The defense case-in-chief emphasized appellant’s mental condition as it endeavored to

establish that appellant was not guilty by reason of insanity. Dr. Evan Nelson, an expert in

clinical psychology appointed at the Commonwealth’s request, testified for the defense that he

had interviewed appellant and considered voluminous other materials in order to reach an

opinion regarding appellant’s mental state at the time of the offense. After explaining his

methodology, Nelson opined that, at the time of the offense, appellant “knew what he was doing,

but he lacked the capacity because of his mental illness to appreciate the wrongfulness of his

actions.” He clarified his opinion as follows:

He knows that this is a gun. He knows that he’s shooting a gun.
He knows that he has killed a police officer. He repeatedly said
that. He knows what his action was, but he has a delusional
understanding of the wrongfulness. In this case he believes the
wrongfulness is fulfilling some sort of mission from God that’s
been preordained. . . . Mental illness doesn’t simply start up in the
moments just before the offense. All this is a process. People
decline into it. . . . [C]oming into the moment of this offense, he
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 already had such a strong belief in these religious delusions that he
was willing to act on them. . . . And so when he tells us a
delusional idea of why he shot the officer, it makes it more
credible to believe, because he has a history of doing that.

Nelson reiterated that appellant “did understand the criminal nature of his acts in the sense that—

knowing the nature, character, and consequences of them, yes,” but emphasized that “he thinks

that the nature of his actions [is] not wrongful in any sort of measurable way that matters to him,

because he’s acting for God from the delusion.”

On cross-examination, Nelson acknowledged that “[a] very large number of criminal

defendants, unfortunately, are mentally ill at the time they commit their crimes, but that doesn't

mean that they necessarily meet the test for insanity. The mental illness may be highly relevant

to what they did but not necessarily meet the test.” The Commonwealth’s cross-examination

also revealed that Nelson had not interviewed several individuals involved in the case, that

appellant was unable to recall the weeks before and after the offense in his interviews with

Nelson in 2016, and that Nelson had been unable to contact people appellant had telephoned in

the hours prior to the shooting. Nelson’s report characterized these eventualities as “very

unfortunate” because appellant’s memory loss precluded him from “provid[ing] any guidance on

the meaning of his ideas or behaviors, none that would point towards or away from insanity” and

because his conversations prior to the shooting could have helped “define whether he planned the

murder or not or if his motives were rational or insanity.” Nelson also acknowledged that

appellant had “multiple rational motives for shooting a police officer that day” and that “several

of [appellant’s] actions pointed away from insanity . . . and towards an awareness that his actions

were legally wrong.”

Appellant also called Dr. Sara Boyd, an expert in forensic psychology appointed for the

defense. Boyd, like Nelson, reached the opinion that appellant was delusional to the point of not

understanding that his actions were wrong. She testified that she made that determination
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“because [appellant] was unable to appreciate the wrongfulness of his actions because of these

delusions that he had, these fixed false beliefs” among which was “that God wanted him to shoot

Trooper Walker as a test of [his] faith.” On cross-examination, Boyd acknowledged that

although she did interview appellant, she did not interview several individuals connected to the

case and that she did not seek any additional information from the prosecution or law

enforcement beyond the statements and interrogation transcripts provided by defense counsel.

She testified that, in her report, she recognized appellant’s statements during police interrogation

“showed that he was aware (at least at the time of interrogation) that his actions were illegal and

in fact were a capital offense.”

After the defense rested its case-in-chief, the Commonwealth presented rebuttal evidence.

Among the rebuttal witnesses called was Brad Mann of the Dinwiddie County Sheriff’s Office,

who testified that he was in the courtroom when appellant made his first court appearance in this

case. Counsel for appellant objected when the Commonwealth’s attorney asked what Mann

heard appellant say during that appearance on the grounds that it was beyond the scope of the

defense case and that the Commonwealth did not provide notice of the statement during

discovery. The trial court indicated that it was “not going to get into a discovery dispute” and

requested the parties argue the objection’s substance. After hearing the Commonwealth’s proffer

of Mann’s testimony and argument from both parties, the trial court overruled the objection

because the testimony was “relevant as rebuttal to the defense expert testimony that [appellant]

didn’t know what he was doing was wrong.” Mann ultimately testified that during appellant’s

arraignment, he heard appellant state in open court: “I’m guilty. Go ahead and stick the needle

in my arm.”

Defense counsel renewed appellant’s motion to strike at the conclusion of all evidence,

arguing that reasonable minds could not differ with respect to appellant’s insanity defense in

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light of the uncontradicted evidence of appellant’s condition at the time of the offense. The

Commonwealth responded that the insanity defense was a jury issue for which appellant bore the

burden and that the Commonwealth had established a prima facie case. The trial court agreed

that the issues raised in appellant’s argument were jury questions and overruled the motion.

The defense also requested a second-degree murder jury instruction, to which the

Commonwealth objected on the grounds that the instruction was not supported by more than a

scintilla of evidence. The trial court found that insufficient evidence had been presented to

support a second-degree murder instruction and accordingly denied it.

After deliberation, the jury returned guilty verdicts for all charges. Before proceeding to

the sentencing phase, counsel for appellant moved to set aside the verdict as contrary to the law

and evidence presented, specifically emphasizing the expert opinions regarding appellant’s

insanity. The trial court overruled the motion, again noting that the jury was not required to

accept the experts’ opinions and was entitled to infer that appellant knew his actions were wrong

based on other evidence.

After hearing evidence and argument regarding sentencing, the jury recommended a

collective sentence of two life terms plus twenty-three years. The trial court imposed that

sentence, and this appeal followed.

II. ANALYSIS

Appellant presents seven assignments of error on appeal, which this Court will consider

in turn.

A. Motion for Grand Jury Information

Appellant first contends that the trial court erred in denying his 2015 motion seeking

“grand jury lists and any other information reflecting the name, race, gender, and age of all

potential” grand jurors for a five-year period preceding appellant’s trial “in order to prepare a

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Sixth Amendment Fair Cross-Section constitutional challenge to the Dinwiddie County grand

jury composition and selection process.” Because a criminal defendant in Virginia is not

automatically entitled to grand juror lists and appellant’s expansive request implicated

recognized juror privacy concerns, the trial court did not abuse its discretion in denying

appellant’s motion. Moreover, as discussed infra, a petit jury’s verdict of guilt renders harmless

beyond a reasonable doubt any claim of defect in the composition of the grand jury, unless a

structural error is shown, such as might arise in a claim of intentional discrimination in violation

of the Equal Protection Clause under the Fifth or Fourteenth Amendments. Because appellant

asserts no such challenge here, the trial court’s decision—even if erroneous—was harmless.

1. Standard of Review

Whether to permit examination of a jury list, like other trial management decisions, lies

in the sound discretion of the trial court. Archer v. Mayes, 213 Va. 633, 640-41, 194 S.E.2d 707,

712 (1973). Under this deferential standard, the “trial judge’s ruling will not be reversed simply

because an appellate court disagrees.” Thomas v. Commonwealth, 44 Va. App. 741, 753, 607

S.E.2d 738, 743, adopted upon reh’g en banc, 45 Va. App. 811, 613 S.E.2d 870 (2005). Instead,

“we consider only whether the record fairly supports the trial court’s action.” Grattan v.

Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634, 644 (2009) (quoting Beck v.

Commonwealth, 253 Va. 373, 385, 484 S.E.2d 898, 906 (1997)).

2. A Virginia Defendant’s Limited Grand Jury Protections

Appellant’s assignment of error is not itself a constitutional challenge to the Dinwiddie

County grand jury selection procedure. Instead, it merely contends the trial court improperly

exercised its discretion in a trial management matter. Nevertheless, a review of a criminal

defendant’s constitutional and statutory grand jury rights is useful in addressing appellant’s

argument.

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 The Fifth Amendment to the United States Constitution enshrines the right to indictment

by a grand jury for federal defendants, but the states are subject to no such requirement. Hurtado

v. California, 110 U.S. 516, 538 (1884). Even so, Virginia has adopted a grand jury procedure

by statute. Code § 19.2-217 provides in part that “no person shall be put upon trial for any

felony, unless an indictment or presentment shall have first been found or made by a grand jury

in a court of competent jurisdiction.”

A Virginia felony defendant’s grand jury right, however, is more limited than that of a

federal criminal defendant. It is subject to waiver, procedural rather than jurisdictional in nature,

and is “purely a statutory requirement . . . not predicated upon any guarantee or provision found

in the Constitution of Virginia.” Scales v. Commonwealth, 214 Va. 728, 730, 204 S.E.2d 273,

276 (1974) (citing former Code § 19.1-162, the predecessor statute of Code § 19.2-217); Triplett

v. Commonwealth, 212 Va. 649, 651, 186 S.E.2d 16, 17 (1972) (“[T]he requirement for

indictment is not jurisdictional and constitutionally imposed but is only statutory and

procedural.”); Cunningham v. Hayes, 204 Va. 851, 854, 134 S.E.2d 271, 274 (1964) (“In

Virginia there is no constitutional requirement that prosecutions for felonies be by indictment.

The requirement is merely statutory and may be waived by the accused.”); Council v. Smyth,

201 Va. 135, 139, 109 S.E.2d 116, 119 (1959) (“Since a person charged with a felony may waive

indictment by a grand jury and elect to be tried on a warrant or information, the requirement of

an indictment is not jurisdictional.”). Further, any errors at the grand jury stage are generally

ameliorated by conviction at the trial stage. See Diehl v. Commonwealth, 9 Va. App. 191, 196,

385 S.E.2d 228, 231 (1989) (“[T]he petit jury’s subsequent guilty verdict means not only that

there was probable cause to believe that the defendants were guilty as charged, but also that they

are in fact guilty as charged beyond a reasonable doubt . . . [and] any error in the grand jury

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proceeding connected with the charging decision was harmless beyond a reasonable doubt.”

(quoting United States v. Mechanik, 475 U.S. 66, 70 (1986))).

But Virginia’s grand jury procedures, like those of all states, remain subject to certain

constitutional minimums. See Rose v. Mitchell, 443 U.S. 545, 563 (1979) (“Federal habeas

review is necessary to ensure that constitutional defects in the state judiciary’s grand jury

selection procedure are not overlooked by the very state judges who operate that system.”).

Although most errors, including constitutional errors, are subject to harmless error review,

structural constitutional errors require automatic reversal because they “deprive defendants of

‘basic protections’ without which ‘a criminal trial cannot reliably serve its function as a vehicle

for determination of guilt or innocence . . . and no criminal punishment may be regarded as

fundamentally fair.’” Neder v. United States, 527 U.S. 1, 8 (1999) (quoting Rose v. Clark, 478

U.S. 570, 577-78 (1986)). The United States Supreme Court has held that intentional racial

discrimination in grand jury selection in violation of the Fifth or Fourteenth Amendment Equal

Protection Clause is such a structural error. Vasquez v. Hillery, 474 U.S. 254, 263-64 (1986)

(“[D]iscrimination in the grand jury undermines the structural integrity of the criminal tribunal

itself, and is not amenable to harmless-error review. . . . Once having found discrimination in the

selection of a grand jury, we simply cannot know that the need to indict would have been

assessed in the same way by a grand jury properly constituted. The overriding imperative to

eliminate this systemic flaw in the charging process, as well as the difficulty of assessing its

effect on any given defendant, requires our continued adherence to a rule of mandatory

reversal.”).

The Sixth Amendment provides a separate basis for challenging jury selection and

composition. From that Amendment’s guarantee of trial “by an impartial jury of the State and

district wherein the crime shall have been committed,” the Supreme Court has derived a

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requirement that trial juries represent a fair cross-section of the community. Taylor v. Louisiana,

419 U.S. 522, 530 (1975). This requirement, however, may not apply to state grand juries. See

Campbell v. Louisiana, 523 U.S. 392, 403 (1998) (declining to rule on whether state grand jury

selection procedures are subject to Sixth Amendment fair-cross-section challenges).

To establish a prima facie fair-cross-section violation, a defendant must show:

(1) that the group alleged to be excluded is a “distinctive” group in
the community;
(2) that the representation of this group in venires from which
juries are selected is not fair and reasonable in relation to the
number of such persons in the community; and
(3) that this underrepresentation is due to systematic exclusion of
the group in the jury-selection process.

Duren v. Missouri, 439 U.S. 357, 364 (1979). Crucially absent from this test is any showing of

intent to discriminate. Indeed, the Duren majority intended a fair-cross-section challenge to lie

regardless of proof of intent. See id. at 368 n.26 (noting that discriminatory purpose constituted

an “essential element” of equal protection challenges, whereas “in Sixth Amendment

fair-cross-section cases, systematic disproportion itself demonstrates an infringement of the

defendant’s interest in a jury chosen from a fair community cross section” (emphasis added));

see also id. at 371 (Rehnquist, J., dissenting) (observing that the difference between equal

protection and fair-cross-section challenges “apparently lies in the fact, among others, that under

equal protection analysis prima facie challenges are rebuttable by proof of absence of intent to

discriminate, while under Sixth Amendment analysis intent is irrelevant, but the State may show

‘adequate justification’ for the disproportionate representation of the classes being compared”).

3. Appellant’s Request for Grand Jury Information

Under what circumstances a criminal defendant is entitled to the information used to

select grand jurors in order to prepare a Sixth Amendment fair-cross-section challenge is a

question of first impression in Virginia. Appellant urges this Court to adopt the procedure

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identified by the Supreme Court of Virginia in Prieto v. Commonwealth, 283 Va. 149, 721

S.E.2d 484 (2012), for obtaining information used to select petit jurors. In that case, the Court

held that good cause exists to provide a defendant with the petit jury list from which his venire

would be selected in order to investigate potential constitutional challenges. Id. at 185, 721

S.E.2d at 505. The Court recognized that lists for additional years may be useful for establishing

a constitutional challenge, but that a defendant would be entitled to them only after establishing a

“constitutionally significant underrepresentation of a distinctive group in the venire from which

his jury would be selected” using the initial list. Id. at 185, 721 S.E.2d at 506.

The Preito Court’s reasoning is distinguishable in the grand jury context. As an initial

matter, no authoritative tribunal has yet held that a defendant may make a Sixth Amendment

fair-cross-section challenge against a state’s grand jury procedures. See Campbell, 523 U.S. at

403. Additionally, the Prieto Court itself was presented with a request for grand jury

information, but held that the request was procedurally defaulted because it was made after the

defendant entered a plea. The Court ruled without opining, even in dicta, whether the same petit

jury procedures would apply in the grand jury context. Prieto, 283 Va. at 181-84, 721 S.E.2d at

503-05.

Moreover, appellant’s motion in the instant case sought disclosure of five years of grand

jury information, not merely the year in which he was indicted. He made no effort to narrow this

request either at trial or in his assignment of error on appeal. Virginia decisions, Prieto among

them, have consistently emphasized that jury lists are sensitive documents and their disclosure

raises serious concerns about citizen privacy. Archer, 213 Va. at 641, 194 S.E.2d at 712 (noting

that even after a showing of good cause, inspection of jury lists should occur “only under the

‘watchful eye of the court’”); see also Prieto, 283 Va. at 185, 721 S.E.2d at 505 (“The disclosure

of an expired jury list does not raise the same tampering or harassment concerns that the

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disclosure of a current jury list does, but it still raises privacy concerns. A jury list contains

sensitive information that should be protected. We thus believe that a good-cause standard is

appropriate for the release of both a current and expired jury list.”). Because “[e]xposure of the

list to the public could lead to tampering with and harassment of potential jurors and seriously

affect their impartiality and the proper administration of justice,” courts must exercise caution in

permitting their disclosure. Archer, 213 Va. at 641, 194 S.E.2d at 712.

Lacking any binding authority requiring it to disclose the requested information to

appellant, the trial court assessed appellant’s motion in light of these known principles:

appellant had no constitutional or statutory entitlement to the information and his broad request

implicated recognized citizen privacy considerations. Given these considerations, this Court

holds that the trial court did not abuse its discretion in denying appellant’s motion for five years

of grand jury information.

Even assuming that the trial court did err in denying appellant’s motion, such error was

harmless. Because Sixth Amendment fair-cross-section challenges, unlike Equal Protection

Clause challenges, do not require or even contemplate intentional discrimination, see Duren, 439

U.S. at 368 n.26, they are not among the “very limited class of cases” in which error is structural.

Neder, 527 U.S. at 8 (quoting Johnson v. United States, 520 U.S. 461, 468 (1997)). As such, the

failure to provide a defendant with information used to select grand juries—even if it were

error—would be subject to harmless error review like any other nonstructural error, even those

of a constitutional dimension. Id. Accordingly, because the petit jury ultimately convicted

appellant of all charges, the trial court’s denial of appellant’s motion was inescapably harmless.

The trial jury’s guilty verdict not only means that probable cause existed to believe appellant was

guilty as charged, but that he was in fact guilty of the charges beyond a reasonable doubt. See

Diehl, 9 Va. App. at 196, 385 S.E.2d at 231.

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 B. Motion to Change Venue

In his second assignment of error, appellant contends that the trial court abused its

discretion by denying his repeated motions to change venue. Appellant specifically cites the

intensive media coverage of the crime, the close-knit Dinwiddie community’s collective

mourning of Walker, and the difficulty of seating a jury to support his argument that he could not

receive a fair trial in Dinwiddie County. Because appellant failed to overcome the presumption

that he would receive a fair trial in the jurisdiction in which the crime occurred, this Court holds

that the trial court did not err in denying his motions.

1. Standard of Review

“Change of venue is within the sound discretion of the trial court, and refusal to grant it

will not constitute reversible error unless the record affirmatively shows an abuse of discretion.”

Stockton v. Commonwealth, 227 Va. 124, 137, 314 S.E.2d 371, 379 (1984). In reviewing

motions to change venue, appellate courts begin with the presumption that the defendant can

receive a fair trial from the citizens of the jurisdiction where the offense occurred. Teleguz v.

Commonwealth, 273 Va. 458, 477, 643 S.E.2d 708, 720 (2007); Thomas v. Commonwealth, 263

Va. 216, 230, 559 S.E.2d 652, 659-60 (2002). The defendant bears the burden of overcoming

this presumption by “clearly showing ‘that there is such a widespread feeling of prejudice on the

part of the citizenry as will be reasonably certain to prevent a fair and impartial trial.’” Stockton,

227 Va. at 137, 314 S.E.2d at 280 (quoting Coppola v. Commonwealth, 220 Va. 243, 248, 257

S.E.2d 797, 801 (1979)).

2. Merits

In determining whether community prejudice against the defendant is sufficiently

pervasive to preclude a fair trial and justify a change in venue, the primary inquiry is the ease

with which an impartial jury can be selected. Thomas, 263 Va. at 231, 559 S.E.2d at 660. “This

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is so because the relative ease of seating an impartial jury negates the existence of the

‘widespread prejudice’ which a criminal defendant must show to justify a change in venue.”

Buchanan v. Commonwealth, 238 Va. 389, 407, 384 S.E.2d 757, 767 (1989) (quoting Pope v.

Commonwealth, 234 Va. 114, 120, 360 S.E.2d 352, 356 (1987)). Moreover, “[j]urors are not

required to be totally ignorant of the facts and issues in a case. Consequently, the mere showing

of extensive publicity or general knowledge of a crime or of the accused, including his criminal

record, is not enough to justify a change of venue.” Id. at 406-07, 384 S.E.2d at 767 (citations

omitted). In fact, many of the most qualified jurors will know enough about the case to have

formed some preliminary opinions:

In these days of swift, widespread and diverse methods of
communication, an important case can be expected to arouse the
interest of the public in the vicinity, and scarcely any of those best
qualified to serve as jurors will not have formed some impression
or opinion as to the merits of the case. This is particularly true in
criminal cases. To hold that the mere existence of any
preconceived notion as to the guilt or innocence of an accused,
without more, is sufficient to rebut the presumption of a
prospective juror’s impartiality would be to establish an impossible
standard. It is sufficient if the juror can lay aside his impression or
opinion and render a verdict based on the evidence presented in
court.

Irvin v. Dowd, 366 U.S. 717, 722-23 (1961).

Nevertheless, the volume and timing of publicity, as well as whether that publicity is

factually accurate, temperate, and noninflammatory remain pertinent concerns in assessing

whether a change in venue was appropriately denied. Buchanan, 238 Va. at 407, 384 S.E.2d at

767; Thomas, 263 Va. at 230-31, 559 S.E.2d at 660. Where media coverage, though

voluminous, is largely factual and unprovocative, it will not justify a venue change. See

Stockton, 227 Va. at 137, 314 S.E.2d at 380 (observing that despite the volume of press

coverage, “the articles, in the main, were factual in nature” in upholding denial of venue change);

Buchanan, 238 Va. at 407, 384 S.E.2d at 767 (affirming denial of venue change in part because
- 21 -
“the publicity was accurate and noninflammatory”); LeVasseur v. Commonwealth, 225 Va. 564,

578, 304 S.E.2d 644, 651 (1983) (holding lower court did not abuse its discretion in denying

venue change despite extensive publicity because “[t]he news articles tendered to the court

simply reported the facts, which are shocking in themselves” and “were not inflammatory”).

a. Nature of Coverage

There is no dispute that this case received substantial media attention. Of course, “sheer

volume of publicity is not alone sufficient to justify a change of venue.” LeVasseur, 225 Va. at

578, 304 S.E.2d at 651. On brief, appellant alleges only two inaccuracies out of the hundreds of

pages of media coverage included in the record, neither of which are actually inaccurate. The

first related to statements appellant made during his initial court appearance that suggested he

was aware of his guilt and accepted that he might receive the death penalty. As discussed further

infra, testimony that appellant in fact stated “I’m guilty. Go ahead and stick the needle in my

arm,” in open court was admitted into evidence at appellant’s trial, thereby supporting the

accuracy of the news accounts. The second alleged inaccuracy was a television report offering a

speculative account of Walker’s death in which the newscaster suggested that Walker pulled

over and asked appellant, “Can I help you, brother?” Viewing the evidence presented at trial in

the light most favorable to the Commonwealth, see Williams, 49 Va. App. at 442, 642 S.E.2d at

296, the only logical inference from the fact Walker stopped his police cruiser near appellant’s

stationary vehicle on the interstate shoulder is that Walker planned to assist appellant. Moreover,

appellant’s own opening statement acknowledged this obvious inference, including the

observation, “Trooper Walker pulls up next to [appellant], most likely to see if he was okay,” in

a narrative of the events leading up to the shooting. Accordingly, the newscaster’s implication

was accurate regardless of the precise words used in the broadcast.

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 Appellant further contends that the media coverage was inflammatory, emphasizing the

extensive coverage of “Walker’s extraordinary local standing and memorialization” as well as

appellant’s criminal history and legal team. Appellant, however, cites no binding precedent

holding that factual reporting of a victim’s life and community standing is inflammatory for

purposes of a change-of-venue inquiry, nor is this Court aware of such precedent. Further, media

reports covering a criminal defendant’s past conduct is not per se inflammatory. See Thomas,

263 Va. at 231, 559 S.E.2d at 660 (“[P]ublication of matters concerning the crime, the accused’s

prior criminal record, and even a confession of the accused, if factually accurate and

non-inflammatory, is not improper and will not alone support a change of venue.”). The

threshold for establishing that a factual report of a defendant’s history is inflammatory is a high

one. For instance, the Supreme Court has upheld denial of a venue change even where media

reports labeled the defendant “Surry’s Public Enemy No. 1,” discussed his “life of crime” and

described his involvement in a variety of serious offenses, and even compared him to Charles

Manson. Stockton, 227 Va. at 135-36, 314 S.E.2d at 379. Appellant cites no coverage

sufficiently sensational to be deemed inflammatory; instead, the media reports, “in the main,

were factual in nature.” Id. at 137, 314 S.E.2d at 380. Finally, appellant contends that certain

reports regarding statements by the trial court and prosecution concerning defense counsel were

inflammatory; a review of the record indicates that the reports accurately set forth those

statements.

The timing of the publicity in this case further supports the trial court’s denial of a venue

change. “On a change of venue motion, the court must look to the conditions at the time of the

trial, not to the conditions at the time of the crime.” Greenfield v. Commonwealth, 214 Va. 710,

717, 204 S.E.2d 414, 420 (1974). Appellant contends that the media continued its extensive

coverage of the case through trial. Appellant, however, cites few reports between the initial

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frenzy of coverage in March 2013, when the crime occurred, and July 2016, when the trial

began. In fact, the lull in coverage was a common topic during jury selection. When asked what

he had heard about the case, one potential juror replied: “It’s been kind of so long, I don’t

remember, really, a whole lot about it. It was a shooting. . . . It’s probably been at least a few

years ago.” Another similarly stated that he could put aside his opinions based on the prior

media reports because they “first came out a while back” and he now had “very little

recollection” of them. In Greenfield, the Supreme Court upheld the lower court’s denial of a

change in venue in part because of the “substantial time difference between the date of the crime,

November of 1972 (when most of the press accounts appeared), and the date of the trial, June 13,

1973”—a difference of eight months. 214 Va. at 717, 204 S.E.2d at 420. Because over three

years elapsed between the crime and trial in this case, the lull in coverage further supports the

trial court’s decision to deny appellant’s motion.

b. Ease of Jury Selection

Turning to the “critical element” in determining a community’s degree of prejudice,

Thomas, 263 Va. at 231, 559 S.E.2d at 660, appellant contends that “[s]eating a fair jury in

Dinwiddie was an impossible task.”

Measuring the ease of impaneling a jury is an important tool in
considering a request for change of venue. It allows the trial court
to take into account a cross section of the community so as to
understand the pervasiveness of prejudice. It also allows the trial
court to keep in mind that justice must not only be fair, it must also
be above suspicion, because the more difficult it is to seat a jury,
the more likely it is that the public will believe the judicial process
to be tainted by prejudice.

Id. at 233, 559 S.E.2d at 661.

Appellant emphasizes the number of jurors questioned and the amount of time it took to

qualify the twenty-eight prospective jurors necessary to proceed. He then compares those

numbers to figures in Thomas, relying on that case for the proposition that because the selection
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process here was more difficult than there, this Court must find that the trial court abused its

discretion in denying the motion to change venue. Appellant’s reliance on Thomas is misplaced.

At the outset, we note that whether to grant a motion to change venue is not a mathematic

calculation based on the number of prospective jurors considered and days of voir dire. Instead,

as appellant acknowledges on brief, courts considering motions to change venue should look to

the “totality of the surrounding facts.” Irvin, 366 U.S. at 721. Additionally, Thomas is

distinguishable from this case. Contrary to appellant’s characterization, the Supreme Court in

Thomas did not reverse the lower court because it abused its discretion in denying a motion to

change venue. In fact, the Thomas Court did not even reach the abuse-of-discretion question.

Instead, it held that

the trial court erred, as a matter of law, by failing to apply the
proper test and failing to consider the necessary factors when
making its decision to deny Thomas’ motion to change venue.
Consequently, because the trial court used an improper legal
standard in exercising its discretionary function, we are unable to
apply the appellate review standard of abuse of discretion. In light
of this holding, the judgment of conviction must be vacated.

263 Va. at 233, 559 S.E.2d at 661. The lower court in Thomas looked exclusively to whether “it

had ultimately seated an impartial jury” in denying the motion to change venue; it did not

consider the ease of seating a jury. Id. at 232, 559 S.E.2d at 661. This, the Supreme Court held,

was an improper test. Id. A simple statistical comparison between this case and Thomas is

therefore unpersuasive in assessing the ease of jury selection here.

This Court instead looks to the actual selection process in the trial court to determine

whether it abused its discretion in denying appellant’s motion. The trial court maintained an

awareness of the Thomas decision throughout voir dire, alluding to it multiple times in its ruling.

It recognized that the selection process took six days and that it considered six panels of twenty

jurors before arriving at the final pool of twenty-eight jurors. Recognizing that, “on their face,

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the percentages look bad,” the trial court noted: “I don’t think I can approach this mechanically

and say if the level of people who know is X percent, then I will automatically grant the motion.”

Instead, it considered why the selection process took six days and why it was necessary to

consider so many jurors. The trial court indicated that it deliberately took a slower, cautious

approach to jury selection, including individual questioning of most prospective jurors, because

the “multiple considerations” in this case required a “thorough and careful approach.” The trial

court recognized that it was not “publicity alone” that necessitated a slower voir dire, but instead

“all the other considerations . . . such as the insanity defense, the fact it is a capital murder case,

the questions regarding burden of proof, psychologists, law enforcement, and so forth.”

The core issue in the trial below was appellant’s insanity defense. Both parties agreed

that appellant killed Walker; the controversy was whether appellant was criminally liable for

doing so in light of his mental condition. As such, prospective jurors’ opinions regarding the

insanity defense and comprehension of the burden of proof for that defense were essential

considerations during voir dire. Similarly, because appellant was charged with capital murder,

the trial court had to ensure that the jury was death qualified. These complex concerns bear

greater responsibility for the length of jury selection than issues related to the potential partiality

of the jury pool. In fact, more prospective jurors were stricken for their views on the death

penalty, difficulty understanding the burdens of proof, and other reasons unrelated to prejudice

against appellant than those stricken for a fixed opinion of appellant’s guilt or familiarity with

Walker or his family.

The trial court conducted a deliberate and thoughtful voir dire in order to seat an

appropriate jury. In each day of selection and with each panel considered, it made appreciable

progress toward seating a jury—at no point did the process stall. Most excused prospective

jurors were stricken for reasons unrelated to prejudice against appellant or knowledge of the

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case. The trial court appropriately considered the impact of media coverage and applied the

correct legal standards to its analysis of appellant’s motions. For those reasons, this Court holds

that the trial court did not abuse its discretion in finding that appellant failed to overcome the

presumption that he would receive a fair trial in Dinwiddie County and accordingly denying his

motions to change venue.

C. Motions to Strike Specific Jurors

In his third assignment of error, appellant contends that the trial court erred by limiting

questioning during voir dire and in denying his motions to strike prospective jurors Delores

Palmer and Aaron Whitworth for cause. Because appellant fails to provide any argument or

authority for the proposition that the trial court improperly denied him the opportunity to ask

questions during voir dire, this Court finds that contention procedurally defaulted under Rule

5A:20(e). See Rambo v. Commonwealth, 51 Va. App. 418, 426-27, 658 S.E.2d 688, 692 (2008).

Further, because both challenged jurors indicated their impartiality after thorough examination,

this Court holds that the trial court did not abuse its discretion in denying appellant’s motion to

strike them.

1. Standard of Review

“Given that the trial court is ‘able to see and hear each member of the venire respond to

questions posed’ during voir dire, it ‘is in a superior position to determine whether a prospective

juror’s responses during voir dire indicate that the juror would be prevented from or impaired in

performing the duties of a juror as required by the court’s instructions and the juror’s oath.’”

Lovos-Rivas v. Commonwealth, 58 Va. App. 55, 61, 707 S.E.2d 27, 30 (2011) (quoting

Townsend v. Commonwealth, 270 Va. 325, 329, 619 S.E.2d 71, 73 (2005)). “Juror impartiality

is a question of fact, and a trial court’s decision to seat a juror is entitled to great deference on

appeal.” Id. “Accordingly, the decision to retain or exclude a prospective juror ‘will not be

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disturbed on appeal unless there has been manifest error amounting to an abuse of discretion.’”

Id. at 62, 707 S.E.2d at 30 (quoting Barrett v. Commonwealth, 262 Va. 823, 826, 553 S.E.2d

731, 732 (2001)). In assessing juror impartiality, this Court considers the voir dire in its entirety,

not merely a challenged juror’s isolated statements. See Wolfe v. Commonwealth, 265 Va. 193,

212, 576 S.E.2d 471, 482 (2003).

2. Merits

Code § 8.01-385 permits both the court and counsel for either party to examine

prospective jurors in order to ascertain, among other things, whether they have formed an

opinion or have any bias or prejudice regarding the case. If the court finds that a “juror does not

stand indifferent in the cause,” then it strikes that juror. Code § 8.01-385. As this Court has

repeatedly recognized,

It is not uncommon to discover during voir dire that prospective
jurors have preconceived notions, opinions, or misconceptions
about the criminal justice system, criminal trials and procedure, or
about the particular case. Even though a prospective juror may
hold preconceived views, opinions, or misconceptions, the test of
impartiality is whether the venireperson can lay aside the
preconceived views and render a verdict based solely on the law
and evidence presented at trial.

Cressell v. Commonwealth, 32 Va. App. 744, 761, 531 S.E.2d 1, 9 (2000) (quoting Griffin v.

Commonwealth, 19 Va. App. 619, 621, 454 S.E.2d 363, 364 (1995)). Under this rule, a

prospective juror is disqualified if he or she holds “an opinion of that fixed character which

repels the presumption of innocence in a criminal case, and in whose mind the accused stands

condemned already.” Justus v. Commonwealth, 220 Va. 971, 976, 266 S.E.2d 87, 91 (1980)

(quoting Slade v. Commonwealth, 155 Va. 1099, 1106, 156 S.E. 388, 391 (1931)). With these

principles in mind, we consider the jurors that appellant challenges.

Early in her examination, Palmer stated that she had formed an opinion that “he did it.”

Immediately thereafter, she clarified that she would “still have to draw [her] own answer” and,
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for the remainder of voir dire questioning by both parties, steadfastly maintained that she would

decide the case based on the evidence presented at trial. The trial court, which was in a superior

position to assess Palmer’s responses, characterized her as someone who had developed an initial

opinion based on prior news reports, but needed to hear the evidence at trial before deciding the

case. Whitworth similarly developed an initial opinion about the case based on media reports—

he said “[i]t would be hard not to form an opinion” after hearing about the case—but maintained

that he would not let the information he had learned affect his judgment. He “realize[d] that

media coverage . . . is entertainment” and acknowledged that he did not “know enough about

what happened to be able to base a judgment on that.” Like Palmer, he recognized that he could

not remove what he had learned, but insisted he would decide the case “based solely on evidence

presented in the courtroom.” And although Whitworth had prior personal experience with

mental illness in his family and became emotional while discussing it, he likewise maintained

that his personal experiences would not inhibit his ability to consider appellant’s case.

On the specific facts of this case, however, this Court need not reach the question

whether the prospective jurors’ responses evinced such a state of mind as to disqualify them.

See Shifflett v. Commonwealth, 221 Va. 760, 771 n.11, 274 S.E.2d 305, 312 n.11 (1981)

(“Whether a juror is impartial and stands indifferent to the cause is to be determined in light of

the controverted issues.”). Any tentative opinions formed by the challenged jurors were that

appellant had shot Walker. Crucially, this fact was not in controversy. As appellant concedes,

the essential issue in this case was whether appellant was legally insane when he shot Walker.

Accordingly, “any previously held opinion that [appellant] fired the gun was irrelevant to a

determination of his criminal responsibility for his acts” and “[n]one of the . . . prospective jurors

had formed any opinion as to [appellant’s] sanity.” Id. at 771, 274 S.E.2d at 312. With respect

to Whitworth’s prior personal experiences with mental health issues in his family, the trial court

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carefully assessed Whitworth’s answers and properly concluded that “he was sufficiently

rehabilitated” to remain in the jury pool. Therefore, because the prospective juror’s responses

indicated that they had not formed “fixed and decided opinion[s]” about appellant’s sanity, the

issue upon which his guilt or innocence turned, id., and because they were not otherwise

disqualified, this Court holds that the trial court did not err in denying appellant’s motions to

strike Palmer and Whitworth.

D. Intent to Interfere with Walker’s Official Duties

In his fourth assignment of error, appellant challenges the sufficiency of the evidence of

capital murder. Specifically, appellant argues that the Commonwealth failed to prove that he

acted with the intent to interfere with Walker’s official duties as a Virginia State Police officer.

Because the evidence supports the inference that appellant acted with the requisite intent, this

Court holds that the trial court did not err by denying appellant’s motion to strike the capital

murder charge.

1. Standard of Review

“When the sufficiency of the evidence is challenged on appeal, this Court ‘must affirm

the conviction unless it is plainly wrong or without evidence to support it.’” Gerald v.

Commonwealth, 68 Va. App. 167, 172, 805 S.E.2d 407, 410 (2017) (quoting Spencer v. City of

Norfolk, 271 Va. 460, 463, 628 S.E.2d 356, 358 (2006)). Under this familiar standard of review,

“[a]n appellate court does not ‘ask itself whether it believes that the evidence at the trial

established guilt beyond a reasonable doubt.’” Williams v. Commonwealth, 278 Va. 190, 193,

677 S.E.2d 280, 282 (2009) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)).

“Rather, the relevant question is whether ‘any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.’” Id. “Additionally, upon appellate review,

the evidence and all inferences reasonably deducible therefrom must be examined in the light

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most favorable to the Commonwealth, the prevailing party in the trial court. Any evidence

properly admitted at trial is subject to this review.” Commonwealth v. Presley, 256 Va. 465,

467, 507 S.E.2d 72, 72 (1998).

2. Merits

Code § 18.2-31(6) provides, in part, that the “willful, deliberate, and premeditated killing

of a law-enforcement officer as defined in § 9.1-101 . . . when such killing is for the purpose of

interfering with the performance of his official duties” constitutes capital murder. The Supreme

Court has held that

the crucial inquiry contemplated by the statute is not whether the
officer was in fact engaged at the time he was killed in performing
a law enforcement duty but, rather, whether the killer acted with
the purpose of interfering with what he perceived to be an officer’s
performance of a law enforcement duty.

Delong v. Commonwealth, 234 Va. 357, 369, 362 S.E.2d 669, 676 (1987) (emphasis added)

(quoting Martin v. Commonwealth, 221 Va. 436, 440, 271 S.E.2d 123, 126 (1980)).

“[W]hether the required intent exists is generally a question of fact for the trier of fact.”

Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 810 (1977). “Intent in fact is the

purpose formed in a person’s mind and may be, and frequently is, shown by circumstances.”

Becker v. Commonwealth, 64 Va. App. 481, 491, 769 S.E.2d 683, 688 (2015) (quoting Abdo v.

Commonwealth, 64 Va. App. 468, 475, 769 S.E.2d 677, 680 (2015)). “Circumstantial evidence

is as acceptable to prove guilt as direct evidence, and in some cases, such as proof of intent or

knowledge, it is practically the only method of proof.” Abdo, 64 Va. App. at 476, 769 S.E.2d at

680 (quoting Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980)).

Importantly, the “reasonable inferences to be drawn from proven facts are within the province of

the trier of fact.” Robertson v. Commonwealth, 31 Va. App. 814, 820, 525 S.E.2d 640, 643

(2000) (quoting Fleming v. Commonwealth, 13 Va. App. 349, 353, 412 S.E.2d 180, 183 (1991)).

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As such, the “fact finder may infer that a person intends the immediate, direct, and necessary

consequences of his voluntary acts.” Id. (quoting Bell v. Commonwealth, 11 Va. App. 530, 533,

399 S.E.2d 450, 452 (1991)).

The record reveals ample evidence from which the jury may have inferred that appellant

acted with the intent to interfere with Walker’s performance of his official duties. Walker was in

uniform when he pulled over his marked police cruiser with lights activated. All parties

acknowledge that the only reasonable explanation for Walker pulling over was to assist appellant

on the roadside, an act within a state trooper’s official duties. Further, appellant’s own words

indicate that he knew he attacked and killed a law enforcement officer acting in his official

capacity: he recognized that “a police car pulled up beside him on the shoulder” and stated that

he “knows [police] procedure” because “police are supposed to pull behind you with lights on

and call for backup.” His extended gunfight with Moss, who was uniformed and arrived in a

marked state police cruiser, provided further evidence from which the jury could infer

appellant’s intent to interfere.

Appellant concedes that he knew what he was doing; his insanity defense relied solely on

the claim that he did not understand the wrongfulness of his actions. Both clinical psychologists

who examined appellant agreed that appellant was fully aware he had killed an officer in the line

of duty. Nelson testified that appellant “repeatedly said” that he knew he was shooting a gun and

knew that he “killed a police officer.” Nelson additionally acknowledged that appellant had

“multiple rational motives for shooting a police officer that day.” Boyd agreed that appellant

was aware of the nature of his actions and that they constituted a capital offense.

The jury thus had before it evidence that Walker was acting in his official capacity, that

appellant knew he was killing a police officer in the line of duty, that he understood killing

Walker would necessarily prevent Walker from carrying out his official duties, and that he

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undertook that action voluntarily. Because the jury is entitled to draw inferences from the

evidence presented, and it further “may infer that a person intends the immediate, direct, and

necessary consequences of his voluntary acts,” Robertson, 31 Va. App. at 820, 525 S.E.2d at

643, it appropriately found that appellant killed Walker with the intent to interfere with the

performance of his official duties. Accordingly, the trial court properly found that sufficient

evidence had been presented to submit the issue to the jury and therefore did not err in denying

appellant’s motion to strike the capital murder charge.

E. Second-Degree Murder Instruction

In his fifth assignment of error, appellant contends that the trial court erred in denying his

proffered instruction on second-degree murder because more than a scintilla of evidence

supported a finding that the shooting was not willful, deliberate, or premeditated. Because the

evidence presented at trial did not support a second-degree murder instruction, this Court holds

that the trial court did not abuse its discretion in denying it.

1. Standard of Review

“When reviewing a trial court’s refusal to give a proffered jury instruction, we view the

evidence in the light most favorable to the proponent of the instruction.” King v.

Commonwealth, 64 Va. App. 580, 583, 770 S.E.2d 214, 216 (2015) (quoting Commonwealth v.

Vaughn, 263 Va. 31, 33, 557 S.E.2d 220, 221 (2002)). Jury instructions “are proper only if

supported by the evidence,” Commonwealth v. Donkor, 256 Va. 443, 445, 507 S.E.2d 75, 76

(1998), and “more than a mere scintilla of evidence” is required, Boone v. Commonwealth, 14

Va. App. 130, 132, 415 S.E.2d 250, 251 (1992). “If any credible evidence in the record supports

a proffered instruction . . . failure to give the instruction is reversible error.” Id. at 132, 415

S.E.2d at 251; see also Foster v. Commonwealth, 13 Va. App. 380, 383, 412 S.E.2d 198, 200

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(1991) (“[A] trial judge may not refuse to grant a proper, proffered instruction if evidence in the

record supports the defendant’s theory of defense.”).

2. Merits

Familiar principles govern appellate review of a trial court’s refusal of a lesser-included

offense instruction in murder cases:

“We have long recognized that evidence showing a murder
‘to have been deliberate, premeditated and willful could be so clear
and uncontroverted that a trial court could properly refuse to
instruct on the lesser included offenses.’ It follows, therefore, that
a criminal defendant ‘is not entitled to a lesser degree instruction
solely because the case is one of murder.’
A second[-]degree murder instruction is only appropriate
where it is supported by evidence. Moreover, the evidence
asserted in support of such an instruction ‘must amount to more
than a scintilla.’”

Porter v. Commonwealth, 276 Va. 203, 241, 661 S.E.2d 415, 434 (2008) (quoting Buchanan, 238

Va. at 409, 384 S.E.2d at 769). In Virginia, there is a presumption that all homicides are

second-degree murders. LeVasseur, 255 Va. at 590, 304 S.E.2d at 658. “The presumption of

second-degree murder,” however, must “yield[] to facts.” Id. (quoting Plymale v.

Commonwealth, 195 Va. 582, 602, 79 S.E.2d 610, 620 (1954) (Buchanan, J., dissenting)).

In this case, no evidence presented supports a finding that appellant acted without

willfulness, deliberation, or premeditation. The evidence instead paints a picture of a prepared

actor carrying out a planned attack. Appellant was camouflaged, armed with a powerful hunting

rifle, and had with him enough ammunition to kill Walker, shoot at Hales, and still carry on an

extended gunfight with Moss. Appellant acted carefully during the gunfight, employing tactics

consistent with Virginia State Police training procedures while engaging Moss. He continued to

act strategically on retreat by abandoning his firearm and clothing, thus inhibiting the ability of

police dogs to track him and similarly reducing the likelihood that another police officer would

shoot him. Moreover, appellant ambushed Walker without provocation. Walker never had the
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chance to put his cruiser in park, much less exit and draw his service sidearm. Appellant then

followed Walker’s cruiser as it rolled into the woods where he was still firing at Walker’s body.

Appellant’s own evidence, even viewed in the light most favorable to him, established

that he acted with premeditation. The essence of the psychiatric testimony he offered only

challenged his ability to distinguish right from wrong. Accordingly, because there was not more

than a scintilla of evidence to justify an instruction on second-degree murder, this Court holds

that the trial court did not err in refusing appellant’s proffered instruction for that reason.

F. Statement at Appellant’s Arraignment

In appellant’s sixth assignment of error, he contends that the trial court erred by admitting

his statement, “I’m guilty. Go ahead and stick a needle in my arm,” made during his arraignment

because the Commonwealth failed to disclose it during discovery and it constituted improper

rebuttal evidence. Because the statement was not subject to discovery disclosure and was

relevant to contradict appellant’s argument that he did not know his actions were wrong, this

Court affirms the trial court’s ruling.

1. Standard of Review

“Appellate courts review evidentiary rulings under an abuse of discretion standard.”

Boone v. Commonwealth, 63 Va. App. 383, 388, 758 S.E.2d 72, 75 (2014). To the extent this

inquiry requires interpretation of statutes or rules of court, this Court reviews such questions of

law de novo. Woodard v. Commonwealth, 287 Va. 276, 280, 754 S.E.2d 309, 311 (2014).

2. Merits

Appellant first argues that the Commonwealth was required to provide notice of the

statement during discovery pursuant to Rule 3A:11 and the discovery order. Both the rule and

order required the Commonwealth to disclose to defense counsel all “written or recorded

statements made by the accused, or copies thereof, or the substance of any oral statements or

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confessions made by the accused to any law enforcement officer.” Rule 3A:11(b)(1). If a statute

or rule is unambiguous, this Court will “apply the plain meaning of the language appearing”

therein. Harvey v. Commonwealth, 65 Va. App. 280, 285, 777 S.E.2d 231, 234 (2015) (quoting

Commonwealth v. Amos, 287 Va. 301, 305-06, 754 S.E.2d 304, 306-07 (2014)). “The plain,

obvious, and rational meaning of a statute is always preferred to any curious, narrow or strained

construction.” Gilliam v. Commonwealth, 21 Va. App. 519, 522-23, 465 S.E.2d 592, 594 (1996)

(quoting Branch v. Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422, 424 (1992)).

In this case, both Rule 3A:11(b)(1) and the order required prior disclosure of “any oral

statements” made “to” a law enforcement officer. Although the order contains only the phrase

“oral statements,” Rule 3A:11(b)(1) includes beside it the phrase “or confessions.” This Court

has consistently recognized and applied the canon of statutory construction known as “noscitur a

sociis.” “Noscitur a sociis is the principle that ‘a word is known by the company it keeps.’ It

‘provides that the meaning of a word takes color and expression from the purport of the entire

phrase of which it is a part, and it must be read in harmony with its context.’” Edwards v.

Commonwealth, 53 Va. App. 402, 411, 672 S.E.2d 894, 898 (2009) (en banc) (first quoting S.D.

Warren Co. v. Maine Bd. of Envtl. Prot., 547 U.S. 370, 378 (2006), then quoting Turner v.

Commonwealth, 226 Va. 456, 460, 309 S.E.2d 337, 339 (1983)). As such, the fact that Rule

3A:11(b)(1) provides for disclosure of a defendant’s “oral statements or confessions” he or she

makes “to a law enforcement officer” indicates that the rule contemplates disclosure only of

those statements made either in response to police questions or at least volunteered to an officer,

but not those an officer merely happens to hear.

In this case, Mann testified that he heard appellant make the statement during an

arraignment in open court. Appellant did not make the statement in response to a question from

Mann; he was not even speaking to Mann when he made it. Mann was simply present in the

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public courtroom and heard what appellant said. To accept appellant’s reading of the rule would

require this Court to mandate disclosure of any oral statements made within hearing of a law

enforcement officer, drastically expanding the Commonwealth’s disclosure duties beyond the

rule’s plain meaning. This Court declines to do so. The Commonwealth was not required,

during discovery, to provide notice of appellant’s statement, and the trial court did not err in

dismissing appellant’s argument to that effect.

Appellant alternatively contends that the statement was improperly admitted during the

Commonwealth’s rebuttal case because it was consistent with the defense evidence and therefore

irrelevant. The crux of the defense case was to establish that although appellant knew what he

was doing, he did not appreciate that his actions were wrong and was therefore insane. The

Commonwealth introduced the statement in order to rebut that argument. All relevant evidence

is generally admissible, Va. R. Evid. 2:402, and “evidence having any tendency to make the

existence of any fact in issue more probable or less probable than it would be without the

evidence” is relevant, Va. R. Evid. 2:401 (emphasis added). Appellant’s statement at

arraignment permitted the inference that, because he was conscious of guilt and accepted the

possibility of punishment for what he had done, he knew his actions were wrong. Because the

statement thus had at least some tendency to prove that appellant realized his actions were

wrong, the trial court did not abuse its discretion in admitting the statement.

3. Harmless Error

Even if the trial court erred in admitting the statement, that error was harmless. “No trial

is perfect, and error will at times creep in.” Lavinder v. Commonwealth, 12 Va. App. 1003,

1009, 407 S.E.2d 910, 913 (1991) (en banc) (quoting Parsons v. Commonwealth, 154 Va. 832,

852, 152 S.E. 547, 554 (1930)). “In Virginia, non-constitutional error is harmless ‘when it

plainly appears from the record and the evidence given at the trial that the parties have had a fair

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trial on the merits and substantial justice has been reached.’” Id. at 1005-06, 407 S.E.2d at 911

(quoting Code § 8.01-678). “In a criminal case, it is implicit that, in order to determine whether

there has been ‘a fair trial on the merits’ and whether ‘substantial justice has been reached,’ a

reviewing court must decide whether the alleged error substantially influenced the jury.” Clay v.

Commonwealth, 262 Va. 253, 259, 546 S.E.2d 728, 731 (2001) (quoting Code § 8.01-678). “An

error does not affect a verdict if a reviewing court can conclude, without usurping the jury’s fact

finding function, that, had the error not occurred, the verdict would have been the same.”

Lavinder, 12 Va. App. at 1006, 407 S.E.2d at 911. Appellant acknowledged that, if admitted, the

statement “would be cumulative rather than rebutting anything.” In fact, appellant offered at trial

several of his other statements demonstrating his awareness that execution was a potential

punishment for his action. Because admission of the statement was, by appellant’s own

admission, merely “cumulative,” any error in admitting it was harmless.

G. Motion to Set Aside the Verdict

In his final assignment of error, appellant contends that the trial court erred in denying his

motion to set aside the verdict because no evidence contradicted the defense expert testimony

that appellant was legally insane at the time of the offense. Because the jury was free to reject

appellant’s evidence and find that he failed to prove his insanity defense, this Court holds that

the trial court did not err in denying the motion.

1. Standard of Review

This Court “will reverse a trial court’s refusal to set aside a jury verdict only if that

verdict was ‘plainly wrong or without evidence to support it.’” Banks v. Commonwealth, 67

Va. App. 273, 288, 795 S.E.2d 908, 915 (2017) (quoting Code § 8.01-680). “If there is evidence

to support the conviction[], the reviewing court is not permitted to substitute its own judgment,

even if its opinion might differ from the conclusions reached by the finder of fact at the trial.”

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Clark v. Commonwealth, 279 Va. 636, 641, 691 S.E.2d 786, 788 (2010) (quoting

Commonwealth v. Jenkins, 255 Va. 516, 520, 499 S.E.2d 263, 265 (1998)). On review of a

sufficiency challenge based on a motion to set aside the jury’s verdict, the key issue is “whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Maxwell v.

Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008) (quoting Jackson, 443 U.S. at

319).

2. Merits

“In Virginia, unlike many jurisdictions, insanity is an affirmative defense that the

defendant must establish to the satisfaction of the fact finder.” Shifflett, 221 Va. at 769, 274

S.E.2d at 310. The defendant bears the burden of proving the defense by a preponderance of the

evidence. White v. Commonwealth, 46 Va. App. 123, 129, 616 S.E.2d 49, 52 (2005) (en banc);

see also Taylor v. Commonwealth, 208 Va. 316, 322, 157 S.E.2d 185, 189-90 (1967) (“In

Virginia, every man is presumed to be sane until the contrary is made to appear and when

insanity is relied upon as a defense in a criminal prosecution, it must be proved by the defendant

to the satisfaction of the jury. This does not shift the ultimate burden of proof which rests upon

the Commonwealth to prove the commission of the alleged offense beyond a reasonable

doubt.”).

The test for insanity in Virginia is the M’Naghten test stated in the disjunctive:

“[I]t must be clearly proved that, at the time of the committing of
the act, the party accused was labouring under such a defect of
reason, from disease of the mind, as not to know the nature and
quality of the act he was doing; or, if he did know it, that he did not
know he was doing what was wrong.”

Price v. Commonwealth, 228 Va. 452, 457, 323 S.E.2d 106, 109 (1984) (quoting M’Naghten’s

Case, 10 Cl. & F. 200, 210, 8 Eng. Rep. 718, 722-23 (1843)). Appellant contends that he proved

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his insanity under this test as a matter of law because there were “no factual disputes about the

defendant’s sanity.” This argument mischaracterizes the evidence. Although the

Commonwealth did not present expert testimony about appellant’s mental health, it provided

evidence that appellant was both aware of his actions in killing Walker and knew that what he

did was wrong. The Commonwealth also thoroughly cross-examined both defense experts,

highlighting weaknesses in their evaluation methodologies. In doing so, the experts conceded

that appellant had “multiple rational motives for shooting a police officer” and that “several of

[his] actions pointed away from insanity . . . and towards an awareness that his actions were

legally wrong.”

Once the Commonwealth has adduced proof that “the accused committed the act, it is not

sufficient for the accused to raise a reasonable doubt as to his sanity; he must go one step further

and prove to the satisfaction of the jury that he was insane at the time of the commission of the

act.” Wessells v. Commonwealth, 164 Va. 664, 673, 180 S.E. 419, 422 (1935). The jury was

free to reject appellant’s evidence and find that he failed to prove his insanity defense. Because

its fact finding was not plainly wrong or without evidence to support it, the trial court did not err

in refusing to set aside the jury’s verdict.

III. CONCLUSION

For the foregoing reasons, this Court affirms appellant’s convictions.

Affirmed.

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