Present: All the Justices
BRIAN LEE CHERRIX
OPINION BY JUSTICE ELIZABETH B. LACY
v. Record Nos. 981798 & 982063 February 26, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ACCOMACK COUNTY
Glen A. Tyler, Judge
In this appeal, we review the capital murder conviction
and death penalty imposed upon Brian Lee Cherrix, along with
his convictions for forcible sodomy, two counts of using a
firearm in the commission of a felony, and possessing a
firearm after being convicted of a felony.
I. Facts
On the night of January 27, 1994, 23 year-old Tessa Van
Hart was working as a pizza delivery person at a pizza
delivery restaurant on Chincoteague Island. A man telephoned
the restaurant and ordered a pizza to be delivered to an
address in the "Small Piney Island" area of Chincoteague.
Around 7:45 p.m., Van Hart left the restaurant to deliver the
pizza.
When Van Hart failed to return from the delivery, the
Chincoteague police were notified, and they began a search for
Van Hart. Shortly after midnight on January 28, the police
found Van Hart's vehicle behind a vacant home approximately
one mile from the Small Piney Island area. Van Hart's body
was found in the back seat.
An autopsy revealed that Van Hart died from two gunshot
wounds to the head. The autopsy also showed that she had been
sodomized and had suffered bruises and abrasions on her
forehead, cheek, nose, and mouth sometime around the time of
death. In the yard of the house to which Van Hart was to have
delivered the pizza on January 27, the police found two
bloodstains which DNA typing showed to be consistent with Van
Hart's blood.
The murder of Tessa Van Hart remained unsolved for over
two years. On June 3, 1996, however, Brian Lee Cherrix, who
was in the Accomack County Jail pending sentencing on
unrelated charges, contacted the Accomack County Sheriff,
Robert Crockett. Cherrix said that he had information
concerning the Van Hart murder that he would share with police
in return for leniency on his pending sentencing. Cherrix
told Crockett that his cousin, Robert Birch, III, had killed
Van Hart. Cherrix claimed that Birch had told him in February
1994 that he, Birch, had lured Van Hart to an unoccupied
residence by ordering a pizza, raped and shot her, and then
discarded the rifle used in the crime in a nearby creek.
Birch died in 1995.
2
The state police began an underwater search of the creek
for the murder weapon. When Cherrix was informed that the
dive team had not recovered the rifle, he agreed to go to
Chincoteague to show the officers the location of the rifle
according to what Birch supposedly had told him. At the
search site, Cherrix directed Trooper Mark Fowler to the place
he claimed that Birch had told him he had thrown the rifle.
Fowler testified at trial that, while Cherrix maintained that
he was only relating facts imparted to him by Birch, Cherrix
would occasionally lapse into the use of the first person in
describing how and where the rifle came to be located in the
creek. The divers recovered a .22 caliber Marlin rifle at the
location indicated by Cherrix.
Later that same day, Cherrix was taken to the City of
Chesapeake, where he was interviewed by state police
investigator Lloyd Dobbs. After being advised of his Miranda
rights and signing a written waiver of those rights, Cherrix
gave several differing versions of the story Birch supposedly
had told him, all the while using hand and arm gestures to
demonstrate how Birch supposedly had disposed of the rifle.
Sheriff Crockett then took Cherrix back to Accomack County
Jail.
Although Birch had died in 1995, the police conducted an
investigation of his whereabouts on the night of the murder,
3
and they concluded that he was not a suspect in the Van Hart
murder. In August 1996, after having been sentenced on
unrelated charges to 20 years imprisonment with all but nine
years suspended, Cherrix was transferred to the custody of the
Virginia Department of Corrections to serve his sentence.
On April 16, 1997, Cherrix was returned to Accomack
County Jail on charges of uttering and grand larceny. During
the drive from Brunswick Correctional Center to the Accomack
County Jail, Chincoteague Assistant Police Chief Edward Lewis
interviewed Cherrix regarding the Van Hart murder. After
Lewis advised Cherrix of his Miranda rights and Cherrix agreed
to discuss the matter, Cherrix told Lewis yet a different
version of what he claimed had happened on the night of the
murder, still maintaining that Birch had committed the murder.
On April 17, 1997, counsel was appointed for Cherrix's
uttering and grand larceny charges. On April 25, 1997,
Cherrix submitted a written request to the Accomack County
Jail authorities asking to see Lewis. Lewis went to the jail
to see Cherrix. After Lewis advised Cherrix of his Miranda
rights and Cherrix reaffirmed that he wanted to speak with
Lewis, Cherrix confessed to the murder and sodomy of Van Hart.
Cherrix then accompanied Lewis and an Accomack County
sheriff's deputy to Chincoteague, where he directed the
4
officers on a tour of various locations that he had described
in his confession.
II. Proceedings
Cherrix was indicted for capital murder, forcible sodomy,
two counts of using a firearm in the commission of those
offenses, and one count of being a felon in possession of a
firearm. Code §§ 18.2-31, -67.1, -53.1, and -308.2. At the
conclusion of the guilt stage of a bifurcated jury trial
conducted pursuant to Code §§ 19.2-264.3 and –264.4, the jury
convicted Cherrix on all counts.
After hearing evidence on the issue of punishment, the
jury sentenced Cherrix to death for the capital murder, life
imprisonment for the forcible sodomy, a total of eight years
for using a firearm in the commission of those offenses, and
five years for possessing a firearm after being convicted of a
felony. Cherrix's death sentence was based upon the jury's
finding of both "future dangerousness" and "vileness." See
Code § 19.2-264.4. The trial court reviewed the presentence
report and victim impact statements and imposed all of the
sentences fixed by the jury.
Cherrix appeals his capital murder conviction, Record No.
981798. We have certified Cherrix's appeal of his non-capital
convictions from the Court of Appeals, Record No. 982063, and
have consolidated the two appeals.
5
III. Issues Previously Decided
Cherrix filed a pre-trial motion asking the trial court
to declare the Virginia death penalty statutes
unconstitutional on a number of grounds. He also filed pre-
trial motions asking the trial court to allow the use of a
jury questionnaire, to allow individual sequestered voir dire,
and to supplement the trial court's voir dire with questions
submitted by defense counsel in order to ascertain possible
juror bias necessary to empanel an impartial jury. 1 He now
appeals the trial court's denial of those motions, raising
issues that we have considered and rejected in previous cases:
(1) Virginia's two statutory aggravating circumstances
of "future dangerousness" and "vileness" are not
unconstitutionally vague. Beck v. Commonwealth, 253 Va. 373,
387, 484 S.E.2d 898, 907, cert. denied, ___ U.S. ___, 118
S.Ct. 608 (1997)("vileness"); Clagett v. Commonwealth, 252 Va.
79, 86, 472 S.E.2d 263, 267 (1996), cert. denied, 519 U.S.
1122 (1997)("future dangerousness").
(2) Virginia's penalty-stage instructions adequately
inform the jury regarding the concept of "mitigation." Swann
1
The trial court actually granted Cherrix's request for
individually sequestered voir dire, but limited its inquiry to
the issues of "publicity and whether a juror would consider
the death penalty."
6
v. Commonwealth, 247 Va. 222, 228, 441 S.E.2d 195, 200, cert.
denied, 513 U.S. 889 (1994).
(3) The use of unadjudicated conduct to prove "future
dangerousness" without proof of such conduct beyond a
reasonable doubt is not unconstitutional. Goins v.
Commonwealth, 251 Va. 442, 453, 470 S.E.2d 114, 122, cert.
denied, 519 U.S. 887 (1996).
(4) Allowing, but not requiring, a trial judge to reduce
a sentence of death to life imprisonment on a showing of "good
cause" is not unconstitutional. Breard v. Commonwealth, 248
Va. 68, 76, 445 S.E.2d 670, 675, cert. denied, 513 U.S. 971
(1994).
(5) Consideration of hearsay evidence or information in
a presentence report during the sentencing phase of a capital
murder case is not unconstitutional. Goins, 251 Va. at 453,
470 S.E.2d at 122; O'Dell v. Commonwealth, 234 Va. 672, 701-
02, 364 S.E.2d 491, 507-08, cert. denied, 488 U.S. 871 (1988).
(6) The review provided by this Court on direct appeal
in capital cases is not unconstitutional. Mickens v.
Commonwealth, 252 Va. 315, 320, 487 S.E.2d 302, 306 (1996),
cert. denied, 520 U.S. 1269 (1997).
(7) Capital murder defendants do not have the
constitutional right to individual and sequestered voir dire
7
of prospective jurors. Stewart v. Commonwealth, 245 Va. 222,
229, 427 S.E.2d 394, 399, cert. denied, 510 U.S. 848 (1993).
(8) Capital murder defendants do not have the
constitutional right to require the trial court to mail a
questionnaire to all potential jurors. Strickler v.
Commonwealth, 241 Va. 482, 489-90, 404 S.E.2d 227, 232, cert.
denied, 502 U.S. 944 (1991).
We find nothing in Cherrix's arguments here that warrants
a change in our previous positions.
IV. Pre-Trial Issues
A. Failure to Suppress Cherrix's Confession
Prior to trial, Cherrix filed a motion asking the trial
court to suppress all of his statements to the police "on or
after June 7, 1996, in that on each and every occasion the
statements secured from the defendant, if any, were obtained
while the defendant was in custody and denied his right to
counsel."
At the suppression hearing, Cherrix testified that he
requested counsel in the presence of Sheriff Crockett on the
return trip from Chesapeake to Accomack on June 7, 1996, and
that he invoked his right to counsel when he was being
interrogated by Lewis on the trip from Brunswick Correctional
Center to Accomack County Jail on April 16, 1997. He admitted
that he had asked to speak with Lewis on April 25, but he
8
denied that Lewis advised him of his Miranda rights before
interrogating him on that date.
Sheriff Crockett testified that, while in Chesapeake on
June 7, 1996, Cherrix had been advised of his Miranda rights
and that he signed a written waiver. He also testified that
Cherrix never invoked his right to counsel or his right to
remain silent during the return trip to Accomack.
Lewis testified that on April 16, 1997, he advised
Cherrix of his Miranda rights, and that Cherrix elected to
speak to him. He denied that Cherrix, "at any time . . . on
April 16," requested counsel or otherwise indicated that he
wished to stop answering questions. Finally, Lewis testified
that when he went to see Cherrix at the Accomack County Jail
on April 25 pursuant to Cherrix's request, he again advised
Cherrix of his Miranda rights, and that Cherrix never
indicated on that date that he wished to have counsel present
or that he wished to stop answering questions.
Following the suppression hearing, the trial court denied
Cherrix's motion to suppress his confession. On appeal,
Cherrix claims that he clearly invoked his right to counsel on
April 16, that interrogations nevertheless continued without
counsel being provided, in violation of his Fifth Amendment
rights, and that the statements he made during those
interrogations were thus inadmissible. See Miranda v.
9
Arizona, 384 U.S. 436 (1966); Edwards v. Arizona, 451 U.S. 477
(1981). 2 Cherrix contends that the trial court's denial of his
motion to suppress the confession therefore constituted
reversible error. We do not agree.
Admissibility of a defendant's statements is an issue to
be decided by the trial court, which evaluates the credibility
of the witnesses, resolves any conflicts in the testimony, and
weighs the evidence as a whole. Watkins v. Commonwealth, 229
Va. 469, 477, 331 S.E.2d 422, 429 (1985), cert. denied, 475
U.S. 1099 (1986). Before admitting statements made by a
defendant during custodial interrogation, the trial court must
determine whether the defendant knowingly and intelligently
relinquished and abandoned his rights. See id. The trial
court's determination is the resolution of a question of fact
based on the totality of the circumstances, Schneckloth v.
Bustamonte, 412 U.S. 218, 226 (1973); Watkins, 229 Va. at 477,
331 S.E.2d at 430, and will not be disturbed on appeal unless
2
Although Cherrix does not explicitly argue that the
admission of his confession violated his Sixth Amendment right
to counsel, he does make repeated references to the fact that
counsel had been appointed to him on unrelated charges prior
to his being interrogated on April 25. However, as the
Commonwealth points out, the Sixth Amendment right to counsel
is charge-specific and does not "travel with a defendant and
attach [itself] to any other crimes . . . ." Eaton v.
Commonwealth, 240 Va. 236, 252, 397 S.E.2d 385, 394 (1990),
cert. denied, 502 U.S. 824 (1991).
10
plainly wrong. Jones v. Commonwealth, 228 Va. 427, 441, 323
S.E.2d 554, 561 (1984), cert. denied, 472 U.S. 1012 (1985).
Here, the record supports the trial court's admission
into evidence of Cherrix's statements to the police. Lewis
testified unequivocally that he read Cherrix his Miranda
rights on April 16 and April 25, and that Cherrix never asked
for counsel on either date. Cherrix testified to the
contrary; however, the trial court was in a position to
evaluate the credibility of witnesses and its decision to
accept Lewis' testimony and reject Cherrix's testimony is
amply supported by the record. See Watkins, 229 Va. at 477,
331 S.E.2d at 430.
B. Failure to Disclose Exculpatory Material
Prior to trial, the trial court accepted the
Commonwealth's assertion that all discovery requirements had
been satisfied and declined to rule on Cherrix's motion for
discovery. At that time, the Commonwealth had a written
statement from Cherrix's grandmother asserting that Cherrix
was at home on the night of Van Hart's murder and that he
placed a telephone call to his wife "around 8:00 o'clock or
so." The Commonwealth had not disclosed this written
statement to Cherrix.
At trial, Cherrix's grandmother testified as an alibi
witness for him and stated that Cherrix placed a telephone
11
call to his wife at 8:15 on the night of the murder and that
the call went on "a long while." On cross-examination, she
testified that she had been interviewed by a police officer,
but that she could not remember what she told the officer.
The Commonwealth subsequently called the interviewing officer
as a rebuttal witness and asked him to read the statement
signed by Cherrix's grandmother. Cherrix objected to the
admission of the statement, asserting that it contained
exculpatory material which should have been disclosed by the
Commonwealth prior to trial. See Brady v. Maryland, 373 U.S.
83 (1963). The trial court overruled Cherrix's objection and
admitted the written statement.
On appeal, Cherrix asserts that his knowledge of the
information contained in the statement does not excuse the
Commonwealth's failure to disclose the statement, but shows a
lack of good faith and violates the due process clause under
Brady. We disagree.
The disclosure requirement imposed by Brady applies to
material exculpatory evidence. Exculpatory evidence is
material if there is a reasonable probability that the outcome
of the proceeding would have been different had the evidence
been disclosed to the defense. United States v. Bagley, 473
U.S. 667, 682 (1985); Robinson v. Commonwealth, 231 Va. 142,
151, 341 S.E.2d 159, 164 (1986). In calling his grandmother
12
as an alibi witness, Cherrix demonstrated that he and his
counsel knew about and relied upon her testimony regarding his
presence at home on the night of the murder and the telephone
call he made to his wife. The content of her written
statement was, as he admits, "reasonably known" and
"consistent with the defense case."
The written statement of the grandmother's testimony did
not change the substance of the information known to the
defense, and the failure to disclose the fact that she had
executed a written version of her testimony did not deprive
Cherrix of material exculpatory information in violation of
Brady. See Castillo v. Johnson, 141 F.3d 218, 223 (5th Cir.),
cert. denied, ___ U.S. ___, 119 S.Ct. 28 (1998)(prosecution
has no obligation to produce information already known to
defense). Accordingly, the trial court did not err in
overruling Cherrix's objection and admitting the statement
into evidence.
V. Guilt Phase
A. Reading and Admission of Statement
During the Commonwealth's direct examination, Lewis
related the oral confession Cherrix made during their April 25
conversation. Lewis then testified that he briefly left the
room after Cherrix made the oral confession, with the
expectation that Cherrix would write out and sign a written
13
confession. When Lewis returned, however, Cherrix had not
done so.
Lewis testified that he then initiated "a question and
answer session" with Cherrix, in which he asked Cherrix
several questions concerning the murder, wrote down each
question as he had asked it, and then wrote down Cherrix's
response to each question "word for word." Lewis testified
that he then read Cherrix's answers back to him, and that
Cherrix acknowledged the accuracy of each written response
before Lewis would proceed to the next question. When all the
questions and answers were complete, Lewis asked Cherrix to
sign the document, but Cherrix refused.
After Lewis testified about the procedure used in the
"question and answer session," he then proceeded to read each
question and answer to the jury. Cherrix objected, taking the
position that, because the "question and answer" document was
not signed, it was "nothing more than a continuing oral
statement at which time the officer may have taken notes."
Cherrix asserted that since the document was merely Lewis'
notes of the conversation, Lewis should only be permitted to
refer to it to refresh his recollection, but not to read
directly from it.
The trial court overruled Cherrix's objection and
permitted Lewis to read each question and answer. Cherrix
14
then raised an objection to the admission of the document into
evidence as an exhibit, but the trial court deferred ruling
until after Lewis finished testifying. The Commonwealth moved
to admit the document following Lewis' direct examination, and
the trial court again deferred its ruling pending cross-
examination of Lewis by the defense. The record bears no
indication that the document was thereafter admitted as an
exhibit; however, the document was made a part of the record
because Cherrix attached it to a post-trial motion.
On appeal, Cherrix renews his argument that the "question
and answer" document is merely Lewis' notes. He asserts that
a document must be admitted into evidence as an exhibit if it
is to be read to the jury by a witness, and that the only
exception to this rule is the hearsay exception of "past
recollection recorded." Cherrix concludes that, because the
Commonwealth did not meet the foundational requirements for
introduction of "past recollection recorded" material, the
trial court erred by permitting Lewis to read from the
"question and answer" document. We disagree.
Contrary to Cherrix's assertion that the "question and
answer" document represented Lewis' notes, the trial court
found that the document represented Cherrix's own statements:
[I]n all of the other statements that have come
in in this case, they have been statements that
were oral and that were testified to by the
15
witness primarily from memory with him from time
to time referring to notes to refresh his
recollection, but in this case it is a very
different set of circumstances. The witness has
stated that he specifically referred – that he
specifically wrote out a question. Specifically
asked a question. Specifically wrote down word
for word the answer and reviewed it with the
defendant. . . .
(Emphasis added.) As characterized by the trial court, then,
the "question and answer" document was elevated to the status
of a written confession.
There can be no question but that a written confession is
admissible into evidence. Confessions, whether oral or
written, are admissible against a criminal defendant under the
"party admission exception" to the hearsay rule. Quintana v.
Commonwealth, 224 Va. 127, 148, 295 S.E.2d 643, 654 (1982),
cert. denied, 460 U.S. 1029 (1983); Land v. Commonwealth, 211
Va. 223, 229, 176 S.E.2d 586, 590-91 (1970). This is true even
if the written confession is unsigned, as long as the defendant
understood and adopted its substance. Wong Sun v. United
States, 371 U.S. 471, 491 (1963)("The fact that the statement
was unsigned, whatever bearing this may have upon its weight
and credibility, does not render it inadmissible"). Because
the "question and answer" document was admissible as a
confession, the failure of the Commonwealth to lay a foundation
for its admission under the "past recollection recorded"
exception is irrelevant.
16
Although the "question and answer" document could have
been admitted into evidence as an exhibit and would have been
the best evidence of Cherrix's confession, see McDaniel v.
Commonwealth, 183 Va. 481, 32 S.E.2d 667 (1945), Cherrix
objected to its admission as an exhibit at trial. Therefore,
he cannot now argue that the trial court erred in allowing the
confession to be admitted in secondary form – through Lewis'
reading it into evidence. For these reasons, there was no
error in the trial court's decision to permit Lewis to read
from the "question and answer" document during his testimony.
B. Motion to Set Aside the Verdict
Cherrix argues that the trial court erred in denying his
motion to set aside the verdict as contrary to the law and
evidence because the Commonwealth failed to prove the corpus
delicti beyond a reasonable doubt. We disagree.
In every criminal prosecution, the Commonwealth must
prove the element of corpus delicti, that is, the fact that
the crime charged has been actually perpetrated. Maughs v.
City of Charlottesville, 181 Va. 117, 120, 23 S.E.2d 784, 786
(1943). Further, if the accused has fully confessed that he
committed the crime, then only slight corroboration of the
confession is required to establish corpus delicti beyond a
reasonable doubt. Jackson v. Commonwealth, 255 Va. 625, 646,
499 S.E.2d 538, 551 (1998).
17
Cherrix was charged with capital murder, forcible sodomy,
use of a firearm in the commission of those offenses, and
being a felon in possession of a firearm. Cherrix fully
confessed to having committed these crimes, and the record
reveals that the Commonwealth produced considerably more than
slight evidence to corroborate Cherrix's confession.
As discussed above, Van Hart's dead body was found with
two .22 caliber gunshot wounds to the head. The autopsy
revealed recent penetration of the anus and signs of blunt
force trauma to the head shortly before death. This evidence
sufficiently corroborates Cherrix's statements that he
sodomized Van Hart and shot her to death.
Furthermore, Christopher Fox, an acquaintance of Cherrix,
identified the .22 caliber rifle found by the police, at the
exact location indicated by Cherrix, as the rifle Fox had sold
to Cherrix. Cherrix's former wife also identified the rifle
as one Cherrix once owned. The Commonwealth also established
that Cherrix was a convicted felon at the time of the offense.
This evidence sufficiently corroborates the commission of the
firearm offenses. Accordingly, the trial court did not err in
denying Cherrix's motion to set aside the verdict.
C. Jury Instructions
At the conclusion of the guilt stage of the trial,
Cherrix proffered the following jury instruction:
18
If you believe that Brian Lee Cherrix did not freely
and voluntarily give a statement to law enforcement
officers concerning his alleged involvement in the
sodomy and murder of Tessa Van Hart, then you may
give any such statement as much or as little
credibility as you deem appropriate.
The credibility and weight of any statements
presented to the jury as having been made by the
defendant are submitted for your consideration along
with all the other evidence. The weight, the
credibility, the sufficiency are questions for
determination by you the jury.
The trial court granted the second paragraph of the
instruction but refused to grant the first paragraph on the
ground that there was no evidence to support a conclusion by
the jury that Cherrix's statements to police were involuntary.
The trial court also granted a "general" instruction, advising
the jury of its role in assessing the credibility of witnesses
and the weight of evidence.
On appeal, Cherrix claims that a general instruction on
credibility was insufficient to properly inform the jury of
their role in assessing the voluntariness of Cherrix's
confession, and that, therefore, the trial court erred in
refusing his instruction regarding the voluntariness of his
statements to police. After reviewing the record, however, we
find no error in the trial court's denial of Cherrix's
proffered instruction.
While it is true that the trial court's pre-trial
determination that a defendant's statements are admissible in
19
evidence does not preclude the defendant from proving at trial
that those statements were made involuntarily, see Jackson v.
Commonwealth, 193 Va. 664, 674, 70 S.E.2d 322, 328
(1952)("Admissibility of confession is for trial court but its
weight and value are for the jury."), it is also well
established that a defendant is not entitled to a jury
instruction unless it is supported by more than a scintilla of
evidence. Commonwealth v. Donkor, 256 Va. 443, 445, 507
S.E.2d 75, 76 (1998).
Cherrix testified at a pre-trial suppression hearing that
the police had violated his Miranda rights; however, he
elected not to testify at trial, and the evidence presented to
the jury was undisputed that Cherrix's statements to police
were preceded by voluntary and intelligent waivers of those
rights. Furthermore, the trial court not only gave a
"general" instruction on the jury's role in assessing
credibility, but also granted the instruction contained in the
second paragraph above, which specifically relates to the
weight and credibility of statements "having been made by the
defendant." Accordingly, we conclude that the jury was
adequately apprised of its role, and that the trial court
properly refused Cherrix's proffered instruction.
VI. Sentencing Phase
A. Mental Health Expert
20
Cherrix argues that the trial court erred in denying him
an adequate and competent mental health expert, as required by
Code § 19.2-264.3:1. That statute provides, in relevant part:
The mental health expert appointed pursuant to this
section shall be (i) a psychiatrist, . . . who has
successfully completed forensic evaluation training
as approved by the Commissioner of Mental Health,
Mental Retardation and Substance Abuse Services and
(ii) qualified by specialized training and
experience to perform forensic evaluations. The
defendant shall not be entitled to a mental health
expert of the defendant's own choosing . . . .
Code § 19.2-264.3:1(A). Cherrix claims that Dr. John Bulette,
the expert appointed by the trial court, did not possess the
qualifications required by the statute. Because the record
shows that Dr. Bulette was qualified under the statute,
however, we find no error in the trial court's appointment. 3
Cherrix filed a motion, pursuant to the statute,
requesting the appointment of a defense expert to assist him
in the capital sentencing phase of the trial. At a subsequent
hearing, Cherrix informed the trial court that he had inquired
into available experts, that he had "selected" Dr. Leigh Hagan
of Chesterfield County, and that he wanted the trial court to
appoint Dr. Hagan.
3
On appeal, Cherrix implies that the trial court's action
denied him rights under the United States Constitution. See
Ake v. Oklahoma, 470 U.S. 68 (1985). To the extent that he
attempts to make this argument, however, it is defaulted
because he did not object to Dr. Bulette's appointment on any
21
The trial court subsequently informed counsel by
telephone that it had decided not to appoint Dr. Hagan because
of the distance between Chesterfield County and Accomack
County, and that it would instead appoint a local
psychiatrist, Dr. John Bulette. Without any objection, the
trial court then entered an order appointing Dr. Bulette.
Two days later, Cherrix filed a motion to reconsider the
matter and to appoint Dr. Hagan rather than Dr. Bulette, which
motion the trial court denied. At the hearing on that motion,
Cherrix conceded that Dr. Bulette was a psychiatrist who had
successfully completed his forensic evaluation training. He
contended, however, as he does now on appeal, that because Dr.
Bulette had never before been involved in a capital murder
case, he was not "qualified by specialized training and
experience to perform forensic evaluations," as required by
the statute.
Contrary to Cherrix's interpretation of Code § 19.2-
264.3:1(A)(ii), however, the statute does not require
experience in capital murder cases as a qualification for an
appointed expert. The relevant part of that statute simply
requires specialized training and experience to perform
forensic evaluations. The trial court was familiar with Dr.
constitutional basis at trial. Rule 5:25. Therefore, we
address only his statutory argument.
22
Bulette's background and specifically found that Dr. Bulette
had "substantial experience" in such evaluations. Cherrix
does not argue that Dr. Bulette lacked the training and
experience expressly required by the statute, and we decline
his invitation to graft onto the statute the additional
requirement of experience in capital murder cases.
Accordingly, we find no error in the trial court's appointment
of Dr. Bulette.
B. Corrections Expert and Witnesses
Cherrix sought to present evidence regarding prison life
and its effect on his "future dangerousness" through the
testimony of an expert penologist, several Virginia
corrections officials, a criminologist, a sociologist, and an
individual serving a life sentence in the custody of the
Virginia Department of Corrections. The trial court initially
granted Cherrix's motion for the appointment of an expert
penologist pending submission of a report and cost estimate.
The Commonwealth objected to the issuance of a subpoena for
the inmate and moved to quash the subpoenas issued for the
corrections officials, criminologist, and sociologist.
Following a hearing at which Cherrix proffered the
testimony of these witnesses, the trial court determined that
Cherrix's evidence was immaterial as mitigation evidence and
therefore refused to compel the witnesses' attendance through
23
subpoenas. The trial court vacated its prior order granting
Cherrix's motion for appointment of an expert on the basis
that the report was not timely filed, the cost estimate was
high, and the proffered testimony of the expert, like the
proffered testimony of the other witnesses sought, was
immaterial.
Cherrix argues that the trial court erred because Code
§ 19.2-264.4 allows presentation of mitigating evidence. He
contends that exclusion of his proffered "mitigation evidence"
was an abuse of discretion and violated his federal
constitutional rights as established in Skipper v. South
Carolina, 476 U.S. 1 (1986), and Eddings v. Oklahoma, 455 U.S.
104 (1982). We disagree.
Although the United States Constitution guarantees the
defendant in a capital case a right to present mitigating
evidence to the sentencing authority, it does not limit "the
traditional authority of a court to exclude, as irrelevant,
evidence not bearing on the defendant's character, prior
record, or the circumstances of his offense." Lockett v.
Ohio, 438 U.S. 586, 605 n.12 (1978). Code § 19.2-264.4(B)
vests the trial court with the discretion to determine,
subject to the rules of evidence governing admissibility, the
evidence which may be adduced in mitigation of the offense.
24
Coppola v. Commonwealth, 220 Va. 243, 253, 257 S.E.2d 797, 804
(1979), cert. denied, 444 U.S. 1103 (1980).
The record shows that the evidence Cherrix sought to
introduce involved the general nature of prison life. The
inmate's proffered testimony sought to establish, based on the
inmate's personal prison experience, what prison life would be
like for Cherrix if he received a life sentence. The
officials from the Department of Corrections would have
testified regarding the ability of the penal system to contain
Cherrix and the cost to the taxpayers of an inmate's life
sentence. Cherrix's counsel stated that the testimony of the
expert penologist, the sociologist, and the criminologist
would be similar to that of the inmate and corrections
officials. As the trial court observed, none of this evidence
concerns the history or experience of the defendant. 4 We agree
with the conclusion of the trial court that "what a person may
expect in the penal system" is not relevant mitigation
evidence. Accordingly, we will affirm the judgment of the
trial court excluding this evidence.
C. Post Trial-Offense Convictions
4
Contrary to Cherrix's assertion, none of the evidence
proffered at trial addressed Cherrix's ability to conform or
his experience in conforming to prison life, as the
defendant's evidence did in Skipper, 476 U.S. at 4.
25
Cherrix filed a pre-trial motion to exclude from the
sentencing phase of the trial evidence of crimes he committed
after he committed the capital offense in January of 1994.
The trial court declined to rule on the motion because it was
premature. During the sentencing phase, the Commonwealth
offered as evidence two convictions that Cherrix received
after January 1994. We have already stated on two prior
occasions that evidence of "prior history" to establish future
dangerousness under Code § 19.2-264.4(C) encompasses the time
after which the subject offense was committed, Joseph v.
Commonwealth, 249 Va. 78, 88-89, 452 S.E.2d 862, 869, cert.
denied, 516 U.S. 876 (1995), and includes a defendant's most
recent history, Saunders v. Commonwealth, 242 Va. 107, 117,
406 S.E.2d 39, 45, cert. denied, 502 U.S. 944 (1991).
Accordingly, the trial court's admission of this evidence was
proper.
D. Failure to Properly Advise Jury on Parole Eligibility
Cherrix contends that the trial court erred in failing to
properly advise the jury of his eligibility, or lack thereof,
for parole. He claims that, because "future dangerousness"
was relevant to his sentencing, the trial court erred in
failing to inform the jury that Cherrix "would effectively
never be paroled." The record reveals, however, that Cherrix
26
has waived this argument for failure to object in the trial
court. Rule 5:25.
At the sentencing phase of the trial, Cherrix did not
offer a parole eligibility instruction. The issue of parole
eligibility did not arise until the jury foreman inquired of
the trial court, during deliberations, whether a life sentence
would include the possibility of parole. The trial court then
suggested to counsel that it should "instruct the jury that
they are to have no concern with parole." When the trial
court then asked Cherrix for his position on the matter,
Cherrix responded, "I would suggest that the court instruct
the jury as you have indicated. [The jury] should not be
concerned with parole . . . ." The trial court subsequently
instructed the jury that it "must decide whether to impose a
life sentence or the death penalty based upon the evidence and
the instructions that you have received and you are to give no
consideration to the issue of parole." Cherrix's failure to
proffer a parole eligibility instruction and his failure to
object to the trial court's instruction in response to the
jury's inquiry mentioned above precludes us from addressing
the merits of this assignment of error.
E. Aggravating Factors
A penalty of death may be imposed only if the
Commonwealth proves, beyond a reasonable doubt, that the
27
defendant would commit criminal acts of violence that would be
a continuing serious threat to society or that his conduct in
committing the offense was outrageously or wantonly vile,
horrible or inhuman in that it involved torture, depravity of
mind, or aggravated battery. Code § 19.2-264.4(C). In this
case, the Commonwealth sought the death penalty based on both
of the aggravating factors, future dangerousness and vileness.
The jury returned a sentencing verdict making the required
findings under both factors. Cherrix contends that the death
penalty should not have been imposed because it was
"unreasonable" for the jury to conclude that Cherrix would be
a continuing serious threat to society, and because the
Commonwealth failed to prove that his actions in committing
the crime were outrageously or wantonly vile, horrible, or
inhuman as that term is defined by the statute. We disagree.
1. Future Dangerousness
Cherrix argues that because the jury was fully informed
of Cherrix's sentences for other crimes, it "could reasonably
expect" that Cherrix had "at best" a "remote" chance of ever
being released. Thus, asserts Cherrix, any danger Cherrix
might pose would be to the society within the prison, and a
"five-foot-four inch, small framed, light weight man does not
represent a danger to fellow inmates or guards."
28
Not only is this argument based primarily on speculation,
it ignores the substantial evidence in the record of Cherrix's
continuing assaultive behavior for which he expressed little
remorse. Cherrix had a lengthy record of criminal convictions
including assault and battery, malicious wounding, and use of
a firearm. Furthermore, after the murder of Van Hart, Cherrix
shot his half-brother and, according to his own mental health
expert, had no remorse for the shooting. Cherrix had a
similar lack of remorse after he broke his mother-in-law's arm
with a pool cue. Cherrix told his mental health expert that
he "would say anything to obtain his goals." His expert
testified that Cherrix had an anti-social personality, was
"angry with women," and acted out this anger by assaulting
them. Finally, there is nothing in the record regarding
Cherrix's ability to conform to prison life and work
productively in that environment.
Our review of the record fully supports the jury's
determination that Cherrix would constitute a continuing
serious danger to society.
2. Vileness
The jury verdict found Cherrix's conduct in committing
the crime "outrageously or wantonly vile, horrible or inhuman
in that it involved torture or depravity of mind . . . ."
Cherrix argues that the record fails to support this finding
29
because there was no showing of depravity of mind beyond that
inherent in ordinary legal malice and premeditation, and
because there was no torture in that Van Hart died almost
instantaneously. Again we disagree.
The events surrounding the murder show that Cherrix
carefully planned his crime and lured his victim to a remote
area. According to the defendant's recitation of events,
after forcing her at gun point to partially disrobe and lie on
the ground, he forcibly sodomized her while holding a rifle to
the back of her head. Even though she "begged [him] not to
kill her" and promised that she would "act like this never
happened," he stood over her and shot her in the head for fear
that "she was going to tell on [him]." Not sure that the
first shot killed her, he "shot her again to make sure."
After the murder, Cherrix drove around with the victim's
body in the car, considered going to a restaurant for a beer,
and ultimately abandoned the car and victim at a deserted site
and tossed the murder weapon in a creek. He then went home
and called his wife at the hospital "like nothing ever
happened." Cherrix visited the funeral home to view his
victim's body and told the police that she looked "beautiful."
This evidence supports the jury's determination that
Cherrix's conduct in committing the sodomy and murder
30
constituted torture of Van Hart or reflected depravity of
mind.
VII. Statutory Review
Code § 17.1-313(C) requires this Court to consider
whether the sentence of death was imposed "under the influence
of passion, prejudice or any other arbitrary factor," and
whether such sentence is excessive or disproportionate to
penalties imposed in similar cases, "considering both the
crime and the defendant." As to our first consideration,
Cherrix asserts that the death penalty was imposed under the
influence of passion, prejudice, or some other arbitrary
factor because the jury improperly found the aggravating
factors of future dangerousness and vileness. However, we
have already determined that these jury findings were
supported by the record. Our review of the record reveals no
support for the proposition that the jury imposed the death
sentence as a result of passion, prejudice, or any other
arbitrary factor.
In considering whether the sentence imposed in this case
is excessive or disproportionate to other sentences imposed
for similar crimes, we compare the record in this case with
records in other capital murder cases, including those in
which life sentences have been imposed. Since the jury based
its death sentence on both the future dangerousness and
31
vileness predicates, we give particular consideration to other
capital murder cases in which the death penalty was sought
based on both predicates.
When considering the penalty for convictions of capital
murder based on premeditated murder and rape/forcible sodomy,
juries in this Commonwealth have generally, although not
without exception, imposed the death sentence. Barnabei v.
Commonwealth, 252 Va. 161, 477 S.E.2d 270 (1996), cert.
denied, 520 U.S. 1224 (1997); Clozza v. Commonwealth, 228 Va.
124, 321 S.E.2d 273 (1984), cert. denied, 469 U.S. 1230
(1985); Coleman v. Commonwealth, 226 Va. 31, 307 S.E.2d 864
(1983), cert. denied, 465 U.S. 1109 (1984); Waye v.
Commonwealth, 219 Va. 683, 251 S.E.2d 202, cert. denied, 442
U.S. 924 (1979). The death sentence has been imposed in cases
where the victim, like the victim in this case, was killed
solely to assure her silence. Hedrick v. Commonwealth, 257
Va. ___, ___ S.E.2d ___ (this day decided); Justus v.
Commonwealth, 220 Va. 971, 266 S.E.2d 87 (1980), cert. denied,
455 U.S. 983 (1982); Smith v. Commonwealth, 219 Va. 455, 248
S.E.2d 135 (1978), cert. denied, 441 U.S. 967 (1979). Based
on this review, we conclude that Cherrix's death sentence is
neither excessive nor disproportionate to penalties imposed by
other sentencing bodies in the Commonwealth for similar and
comparable crimes.
32
VIII. Conclusion
We find no reversible error in the issues presented in
this case. After reviewing Cherrix's death sentence pursuant
to Code § 17-110.1, we decline to commute the sentence of
death. Therefore, we will affirm the judgment of the trial
court.
Record No. 981798 —Affirmed.
Record No. 982063 —Affirmed.
33