Present: All the Justices
MIR AIMAL KASI
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record Nos. 980797 November 6, 1998
980798
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
J. Howe Brown, Judge
On Monday, January 25, 1993, near 8:00 a.m., a number of
automobiles were stopped in two north-bound, left-turn lanes on
Route 123 in Fairfax County at the main entrance to the
headquarters of the Central Intelligence Agency (CIA). The
vehicle operators had stopped for a red traffic light and were
waiting to turn into the entrance.
At the same time, a lone gunman emerged from another
vehicle, which he had stopped behind the automobiles. The
gunman, armed with an AK-47 assault rifle, proceeded to move
among the automobiles firing the weapon into them. Within a few
seconds, Frank Darling and Lansing Bennett were killed and
Nicholas Starr, Calvin Morgan, and Stephen Williams were wounded
by the gunshots. All the victims were CIA employees and were
operators of separate automobiles. The gunman, later identified
as defendant Mir Aimal Kasi, also known as Mir Aimal Kansi, fled
the scene.
At this time, defendant, a native of Pakistan, was residing
in an apartment in Reston with a friend, Zahed Mir. Defendant
was employed as a driver for a local courier service and was
familiar with the area surrounding the CIA entrance.
The day after the shootings, defendant returned to Pakistan.
Two days later, Mir reported to the police that defendant was a
"missing person."
On February 8, 1993, the police searched Mir's apartment and
discovered the weapon used in the shootings as well as other
property of defendant. Defendant had purchased the weapon in
Fairfax County three days prior to commission of the crimes.
On February 16, 1993, defendant was indicted for the
following offenses arising from the events of January 25th:
Capital murder of Darling as part of the same act that killed
Bennett, Code § 18.2-31(7); murder of Bennett, Code § 18.2-32;
malicious woundings of Starr, Morgan, and Williams, Code § 18.2-
51; and five charges of using a firearm in commission of the
foregoing felonies, Code § 18.2-53.1.
Nearly four and one-half years later, on June 15, 1997,
agents of the Federal Bureau of Investigation (FBI) apprehended
defendant in a hotel room in Pakistan. Defendant had been
travelling in Afghanistan during the entire period, except for
brief visits to Pakistan.
On June 17, 1997, defendant was flown from Pakistan to
Fairfax County in the custody of FBI agents. During the flight,
after signing a written rights waiver form, defendant gave an
2
oral and written confession of the crimes to FBI agent Bradley J.
Garrett.
Following 15 pretrial hearings, defendant was tried by a
single jury during ten days in November 1997 upon his plea of not
guilty to the indictments. The jury found defendant guilty of
all charges and, during the second phase of the bifurcated
capital proceeding, fixed defendant's punishment at death based
upon the vileness predicate of the capital murder sentencing
statute, Code § 19.2-264.4.
On February 4, 1998, after three post-trial hearings, during
one of which the trial court considered a probation officer's
report, the court sentenced defendant to death for the capital
murder. Also, the court sentenced defendant to the following
punishment in accord with the jury's verdict: For the first-
degree murder of Bennett, life imprisonment and a $100,000 fine;
for each of the malicious woundings, 20 years' imprisonment and a
$100,000 fine; and for the firearms charges, two years in prison
for one charge and four years in prison for each of the remaining
four charges.
The death sentence is before us for automatic review under
former Code § 17-110.1(A) (now § 17.1-313(A)), see Rule 5:22, and
we have consolidated this review with defendant's appeal of the
capital murder conviction. Former Code § 17-110.1(F) (now
§ 17.1-313(F)). In addition, by order entered April 23, 1998, we
3
certified from the Court of Appeals of Virginia to this Court the
record in the noncapital convictions (Record No. 980798). That
record consists only of three notices of appeal from the
conviction order. No other effort has been made to perfect the
noncapital appeals; therefore, those convictions will be affirmed
and we shall not address them further.
In the capital murder appeal, we will consider, as required
by statute, not only the trial errors enumerated by the defendant
but also whether the sentence of death was imposed under the
influence of passion, prejudice, or any other arbitrary factor,
and whether the sentence is disproportionate to the penalty
imposed in similar cases. Former Code § 17-110.1(C) (now § 17.1-
313(C)).
At the outset, we will discuss the number, nature, and
legitimacy of many issues raised by defendant. He assigned 92
errors allegedly committed by the trial court (placing 91 in his
opening brief) and has not argued many of them (Nos. 8, 14, 15,
17, 18, 20, 21, 25, 26, 28, 32, 45, 47, 52, 61, 69, 72, 77, 78,
80, 89, 91 and 92); hence, they are waived and will not be
considered. Jenkins v. Commonwealth, 244 Va. 445, 451, 423
S.E.2d 360, 364 (1992), cert. denied, 507 U.S. 1036 (1993).
In addition, defendant has effectively presented no
meaningful argument in support of many assignments that are
actually briefed. We have considered these so-called arguments
4
and find no merit in any of them. Weeks v. Commonwealth, 248 Va.
460, 465, 450 S.E.2d 379, 383 (1994), cert. denied, 516 U.S. 829
(1995). In this category are assignments 2, 5, 16, 19, 22, 23,
24, 29, 30, 33, 43, 51, 54, 73, and 87.
Also, other errors alleged (Nos. 6, 39, and 64) raise issues
we previously have decided adversely to the argument defendant
makes, and those decisions will not be revisited here. Typical
of this group is assignment of error 39: "The Circuit Court
erred in denying the defendant's motion to declare the Virginia
death penalty statute unconstitutional."
Finally, from our study of this entire record, including the
4,903-page appendix, we have determined that many assignments of
error that are argued in depth are devoid of any merit whatever.
These are: Nos. 1, 3, 7, 9, 10, 27, 31, 34, 37, 38, 40, 41, 42,
44, 46, 48, 49, 62, 63, 65, 67, 68, 71, 74, 75, 76, 79, and 88.
This group requires no extended analysis and mainly raises issues
involving the exercise of discretion by the trial judge on
subjects such as continuances, pretrial publicity, discovery, and
appointment or disqualification of counsel. Typical of this
group is assignment of error 49: "The Circuit Court erred in
denying defendant's motions for a continuance filed on August 11,
1997, and October 1, and October 8." We have considered this
entire group of alleged errors and reject them without any
further discussion.
5
The remaining 23 assignments of error raise issues, inter
alia, regarding defendant's apprehension, his confession,
suppression of evidence, jury selection, and juror conduct.
There is no conflict in the evidence relating to any of the facts
presented during the guilt phase of this trial; the defendant
presented no evidence.
Near 4:00 a.m. on June 15, 1997, Agent Garrett and three
other armed FBI agents, dressed in "native clothing," apprehended
defendant in a hotel room in Pakistan. Defendant responded to a
knock on the room's door and the agents rushed inside.
Defendant, who has "a master's degree in English," immediately
began screaming in a foreign language and refused to identify
himself. After a few minutes, defendant was subdued, handcuffed,
and gagged. Garrett identified him through the use of
fingerprints. During the scuffle, defendant sustained "minor
lacerations" to his arm and back.
When the agents left the hotel with defendant in custody, he
was handcuffed and shackled, and a hood had been placed over his
head. He was transported in a vehicle for about an hour to board
an airplane. During the trip, Garrett told defendant he was an
FBI agent.
The ensuing flight lasted "a little over an hour." After
the plane landed, defendant was transferred to a vehicle and
driven for about 40 minutes to a "holding facility" where he was
6
turned over to Pakistani authorities. The FBI agents removed
defendant's handcuffs, shackles, and hood when the group arrived
at the holding facility, but the persons in charge of the
facility put other handcuffs on him. Defendant was placed in one
of the eight cells in the facility, where he remained until the
morning of June 17.
During defendant's stay in the facility, the FBI agents
never left his presence or allowed him to be interrogated or
"harassed." He was allowed to eat, drink, and sleep. On two
occasions, the agents removed defendant from his cell to "look at
his back and look at his arm" and to take his blood pressure and
pulse. The agents did not interrogate defendant in the holding
facility and made certain he was treated "fairly and humanely."
On June 16, "late in the day," Garrett was advised by an
official at the U. S. Embassy in Pakistan that defendant would be
"released" the next morning. On June 17 near 7:00 a.m.,
defendant "was allowed to be released" from the facility in the
custody of the FBI agents. He was handcuffed, shackled, and
hooded during a 15-minute ride to an airplane. Once on the
plane, the hood was removed. Shortly after boarding the
aircraft, a physician checked defendant's "well being."
During the 12-hour flight to Fairfax County, Garrett first
conducted a "background" conversation with defendant, discussing
"his life in the United States, where he lived, where he worked."
7
Garrett knew, from his four-and-one-half-year search for
defendant, that he was a Pakistani national. Defendant was not
a U.S. citizen and he had not returned to the United States after
he fled on January 26, 1993.
After the background conversation, Garrett advised defendant
of rights according to Miranda v. Arizona, 384 U.S. 436 (1966).
Defendant signed an FBI "Advice of Rights" form, after reading it
and having it explained to him. He indicated he was waiving his
rights and was willing to give a statement. The subsequent
interview lasted about one and one-half hours before defendant
signed a written statement summarizing the interview.
In the written statement, defendant confirmed he purchased
the AK-47 rifle and about 150 rounds of ammunition several days
before the incident in question. He said he drove his pickup
truck to the scene, "got out of my vehicle & started shooting
into vehicles stopped at a red light." Continuing, he stated
that "I shot approximately 10 rounds shooting 5 people. I aimed
for the chest area of the people I shot. I then returned to my
truck & drove back to my apartment." He also stated that
"several days before the shooting I decided to do the shooting at
the CIA or the Israeli Embassy but decided to shoot at the CIA
because it was easier because CIA officials are not armed."
As part of his oral statement to Garrett, defendant
enumerated political reasons "why he wanted to do this shooting."
8
He said he was "upset" because U.S. aircraft had attacked parts
of Iraq, he was "upset with the CIA because of their involvement
in Muslim countries," and he was concerned with "killing of
Pakistanians by U.S. components." When Garrett asked defendant
"why he stopped shooting," he replied "there wasn't anybody else
left to shoot." When asked about the gender of those shot,
defendant replied "that he only shot males because it would be
against his religion to shoot females."
On appeal, defendant mounts several constitutional and other
attacks upon the trial court's refusal to suppress and the
court's admission in evidence of defendant's statement to
Garrett. First, defendant claims the statement was involuntary
and was obtained through coercion. We do not agree.
The evidence on the issue, presented both at a pretrial
suppression hearing and during the guilt phase of the trial, was
overwhelming and uncontradicted that defendant validly waived any
constitutional rights he may have had in connection with the
statement and that the statement was voluntary. No threats or
promises were made to defendant, either when he was apprehended
or aboard the aircraft, and he was not offered anything in return
for his statement. Defendant, who "had good command of the
English language," told Garrett that he "understood his rights
fully and completely." He never refused to answer any question,
and at no time during the 12-hour return flight did he express
9
any fear or indicate he was making a statement because he was
afraid. There is no evidence of coercion while he was detained
in Pakistan. Indeed, the FBI agents were careful to assure he
was treated humanely. The trial court's detailed findings of
fact that the waiver was knowing, voluntary, and intelligent and
that the statement was voluntary are fully supported by the
record. See Roach v. Commonwealth, 251 Va. 324, 340-41, 468
S.E.2d 98, 108, cert. denied, 519 U.S. 951 (1996).
Next, defendant, attacking the jurisdiction of the trial
court, contends that "either the Extradition Treaty between the
United States and Pakistan or the Vienna Convention for Consular
Relations were violated" requiring "sanctions" to be imposed for
these alleged violations. He argues the "abduction/seizure of
Kasi was conducted outside and in express violation of the
Extradition Treaty between the United States and Pakistan and
without invoking the procedures set out by the laws of each
country" and was contrary to law. He says the "sanction" for
violation of the treaty should be reversal of the capital murder
conviction and "repatriation to Pakistan without prejudice for a
new trial."
Continuing, he argues the "record shows that at no time did
the Federal agents advise Kasi of his right to consult with a
Pakistani diplomat pursuant to Article 36(1) of the Vienna
Convention on Consular Relations." He says "that suppression of
10
all statements obtained by virtue of this illegal arrest and
abduction in violation of the extradition treaty . . . and the
violations of the Vienna Convention is the appropriate
alternative sanction to enforce treaty rights violated." We
reject the arguments based on the treaty and the "Vienna
Convention."
During a pretrial hearing, the Commonwealth's Attorney
stipulated that defendant was arrested in Pakistan by an FBI
agent; that the agent did not "have any jurisdiction in the
nation of Pakistan;" that defendant "was not taken before a
judicial officer . . . until he returned to the United States and
was presented before this Court"; that "in the course of time
from his arrest until he was brought to this country there was no
compliance with the Vienna Convention until my letter of July
3rd"; and that "the seizure in Pakistan was not made pursuant to
any Pakistani paper or document which would allow him to be
seized under the laws of Pakistan." The record shows there "was
an unlawful flight warrant issued by a U.S. Magistrate in
Alexandria in February of 1993 authorizing Federal agents to
arrest Mr. Kansi." Also, the record shows that the July 3 letter
mentioned in the stipulation was a letter from the prosecutor
formally notifying the defense of defendant's right to seek
consular assistance.
11
The defendant relies upon an Extradition Treaty between the
United States and the United Kingdom. 47 Stat. 2122 (1931).
Apparently, there is no extradition treaty directly between the
United States and Pakistan. But the Attorney General is willing
to assume, as represented by the defendant, that the "Islamic
Republic of Pakistan has continued in force the treaty
promulgated between its former colonial sovereign, the United
Kingdom, and the United States," and that it applies to this
case.
The defendant focuses on Article 8 of the treaty, which
provides:
"The extradition of fugitive criminals under the
provisions of this Treaty shall be carried out in the
United States and in the territory of His Britannic
Majesty respectively, in conformity with the laws
regulating extradition for the time being in force in
the territory from which the surrender of the fugitive
criminal is claimed."
Contrary to defendant's contention, nothing in this treaty
can be construed to affirmatively prohibit the forcible abduction
of defendant in this case so as to divest the trial court of
jurisdiction or to require that "sanctions" be imposed for an
alleged violation of the treaty. The decision on this issue is
controlled by United States v. Alvarez-Machain, 504 U.S. 655
(1992).
There, the respondent, a citizen and resident of Mexico, was
forcibly kidnapped from his home and flown by private plane to
12
Texas, where he was arrested for his participation in the
kidnapping and murder of a federal Drug Enforcement
Administration (DEA) agent and his Mexican pilot. DEA agents
were "responsible" for the abduction, although they were not
personally involved in it. Id. at 657. The United States has an
extradition treaty with Mexico. The issue in the case was
"whether a criminal defendant, abducted to the United States from
a nation with which it has an extradition treaty, thereby
acquires a defense to the jurisdiction of this country's courts."
Id.
The Supreme Court, answering that query in the negative,
said: "Extradition treaties exist so as to impose mutual
obligations to surrender individuals in certain defined sets of
circumstances, following established procedures." Id. at 664.
The Court held that the treaty's language, "in the context of its
history," failed to support the proposition that the treaty
expressly prohibited abductions outside its terms. Id. at 666.
The Court went on to hold that the treaty should not be
interpreted to include an implied term prohibiting prosecution
where a defendant's presence is obtained by means other than
those established by the treaty. Id. at 666, 668-69. See Ker v.
Illinois, 119 U.S. 436 (1886) (criminal defendant forcibly
abducted from Peru to United States had no right to be returned
13
to this country only in accordance with terms of extradition
treaty between United States and Peru).
In the present case, as in Alvarez-Machain and Ker,
defendant's seizure in a foreign country and his return to this
country were not accomplished pursuant to an extradition treaty.
The treaty language here does not expressly or impliedly prohibit
prosecution in the United States where the defendant's presence
was obtained by forcible abduction. Like the treaty in Alvarez-
Machain, this treaty "does not purport to specify the only way in
which one country may gain custody of a national of the other
country for the purposes of prosecution." Id. at 664. In sum,
defendant was not "extradited" under the provisions of this
treaty.
As a corollary to the treaty argument, defendant contends
his seizure was "illegal and unreasonable" in violation of the
Fourth Amendment to the U.S. Constitution and the equivalent
Article I, § 10 of the Constitution of Virginia. We do not
agree.
In United States v. Verdugo-Urquidez, 494 U.S. 259, 266
(1990), the Supreme Court held: "The available historical data
show . . . that the purpose of the Fourth Amendment was to
protect the people of the United States against arbitrary action
by their own Government; it was never suggested that the
provision was intended to restrain the actions of the Federal
14
Government against aliens outside of the United States
territory." The Court also said, "There is likewise no
indication that the Fourth Amendment was understood . . . to
apply to activities of the United States directed against aliens
in foreign territory or in international waters." Id. at 267.
We now turn to defendant's reliance on Article 36(1) of the
Vienna Convention on Consular Relations and Optional Protocol on
Disputes (Vienna Convention), 21 U.S.T. 77, T.I.A.S. No. 6820
(Apr. 24, 1963), and his claim that its alleged violation
requires suppression of his confession. Defendant conceded in
the trial court there is no reported authority for the idea that
a violation of the treaty creates any legally enforceable
individual rights. And, the provisions of the document create no
such rights. Indeed, the preamble states that the "purpose . . .
is not to benefit individuals but to ensure the efficient
performance of functions by consular posts on behalf of their
respective States." Article 36 merely deals with notice to be
furnished to the consular post of a national's state when the
national is arrested or taken into custody in a foreign state.
In the present case, it makes no sense to say that, when the
defendant was arrested in Pakistan and turned over to Pakistani
authorities, the Vienna Convention required defendant to be
notified of his right to contact Pakistani consular officers,
even if that country maintained a "consulate" within its own
15
borders. Indeed, the prosecutor, as soon as defendant returned
to this country, notified the defense that defendant had the
right to contact the Pakistani consulate here.
Finally on this issue, defendant's suggestion that if he had
been advised of his so-called rights under the Vienna Convention,
he would not have confessed to agent Garrett is just as
speculative as the theory of "prejudice" that the Supreme Court
recently rejected in Breard v. Greene, ___ U.S. ___, 118 S.Ct.
1352, 1355 (1998) (repudiating claim that if Vienna Convention
had not been violated defendant would have accepted alleged plea
agreement).
Next, defendant challenges the admissibility of an arguably
inculpatory statement he made to a Fairfax County deputy sheriff
and asserts that such a claim is encompassed by assignments of
error 4 and 83. Those assignments, however, challenge
defendant's statements to federal authorities following his
apprehension in Pakistan. None of defendant's assignments of
error raises the issue argued; thus, it is procedurally
defaulted. Rule 5:17(c).
Next, defendant contends the trial court erred when it
refused to suppress the contents of a suitcase found during a
search of the apartment where defendant concealed the murder
weapon. We disagree.
16
The record clearly establishes that Zahed Mir, defendant's
roommate and the lessee of the apartment, consented to the search
of a suitcase found in a hall closet within the apartment. Two
handguns and magazines of AK-47 ammunition were found in the
suitcase and eventually were received in evidence. The
investigating police officer testified that he had received Mir's
"verbal consent several times" to open the suitcase. The trial
court correctly concluded, under the evidence, that Mir had the
authority to give permission to the officer "to look in" the
suitcase, rendering the search valid.
Next, defendant contends the trial court erred in denying
his motion for a change of venue. Defendant asserts there were
"inflammatory and inaccurate media reports" with "all three local
newspapers" reporting that defendant had confessed to the crimes.
Arguing that repeated inflammatory pretrial media reports mandate
a change of venue, defendant says his constitutional right to a
fair trial in this case was violated by refusal of his motion.
We do not agree.
There is a presumption that a defendant will receive a fair
trial in the jurisdiction where the crimes were committed. To
overcome the presumption, a defendant must establish that the
citizens of the jurisdiction harbor such prejudice against him
"that it is reasonably certain he cannot receive a fair trial."
Lilly v. Commonwealth, 255 Va. 558, 570, 499 S.E.2d 522, 531
17
(1998). The decision whether to grant a motion for a change of
venue lies within the sound discretion of the trial court. Id.
In the present case, even though virtually all the
prospective jurors indicated they had heard or read about the
case, the court, after careful voir dire, seated a panel of 24
jurors, following detailed questioning of only 58 persons.
Defendant did not overcome the presumption that he could receive
a fair trial; there was no abuse of discretion by the trial
court, especially in light of the relative ease with which the
jury was selected. See Roach, 251 Va. at 342-43, 468 S.E.2d at
109.
Next, the defendant contends that the prosecutor, for
discriminatory reasons, used a peremptory strike to remove juror
14, the "only juror of any color on the panel," according to
defendant, in violation of Batson v. Kentucky, 476 U.S. 79
(1986), and that the trial court erred in ruling to the contrary.
We disagree.
Responding to the claim, the Commonwealth's Attorney
represented to the trial court he had struck the juror "because
she was the only member of the entire panel who never read
anything about the case or heard anything about the case. My
fear is somebody like that is kind of detached from the real
world, and that's why I struck her." The trial court accepted
this explanation, and properly denied defendant's claim.
18
Batson dictates that purposeful discrimination based upon
race in selecting jurors violates the Equal Protection Clause.
Once an accused makes a prima facie showing of such
discrimination, a prosecutor must furnish a reasonable
explanation in rebuttal, showing that the reason for the
peremptory strike was race neutral. If the explanation is based
upon factors other than the juror's race, it is deemed to be race
neutral. Id. at 89. Accord Wright v. Commonwealth, 245 Va. 177,
186, 427 S.E.2d 379, 386 (1993), vacated on other grounds, 512
U.S. 1217 (1994).
Assuming, without deciding, that defendant established a
prima facie case of purposeful discrimination under Batson, we
hold that the record supports the trial court's conclusion that
juror 14 was not struck from the panel because of her race.
Striking a juror because she had not even read or heard anything
about a well-publicized case clearly is a race-neutral reason.
See Spencer v. Murray, 5 F.3d 758, 763-64 (4th Cir. 1993)
(prosecutor entitled to strike potential juror if he found it
"odd" that juror had heard nothing about highly publicized case),
cert. denied, 510 U.S. 1171 (1994).
Next, defendant argues that the evidence was insufficient to
support his capital murder conviction. Defendant notes that to
find him guilty of Darling's capital murder, the Commonwealth had
to prove that Bennett's killing was murder in the first degree.
19
Code § 18.2-31(7) ("willful, deliberate, and premeditated killing
of more than one person as a part of the same act or transaction"
constitutes capital murder). Defendant contends that his murder
of Bennett can rise no higher than murder in the second degree
because the Commonwealth failed to prove he intended to kill
Bennett. We reject this contention.
As the Attorney General points out, the evidence is
undisputed that defendant deliberately shot Bennett twice in the
chest at extremely close range with a high-powered assault rifle.
In his confession, defendant stated not only that he planned and
carried out the attack with premeditation and without any
provocation, but also that he deliberately aimed his weapon at
the victims' chests. This evidence establishes as a matter of
law that Bennett's murder was intentional.
Next, defendant contends the trial court erred in denying
his motion to "preclude" the testimony of Frank Darling's wife in
the penalty phase after she had testified during the guilt phase
of the trial. Defendant argues, "In this instance," calling for
the second time the murder victim's wife to give victim impact
testimony violates "the due process standard of fundamental
fairness." We do not agree.
Mrs. Darling was a front-seat passenger in the automobile
driven by her husband at the time of his murder. She testified
during the guilt phase about the events surrounding the
20
shootings. During the penalty phase, she testified only about
the substantial impact of her husband's murder upon her life.
This is the type of victim impact testimony approved in Payne v.
Tennessee, 501 U.S. 808, 827 (1991), and in Weeks, 248 Va. at
476, 450 S.E.2d at 389-90, and the trial court correctly refused
to exclude it.
Next, defendant contends the trial court erred in failing to
sustain his "motion to strike the evidence as to vileness and
future dangerousness," both of which issues were submitted to the
jury in proper instructions. The defendant apparently does not
argue the evidence was insufficient to establish that Darling's
murder was vile, in that it involved "depravity of mind or
aggravated battery to the victim," Code § 19.2-264.4(C). He
admitted during oral argument there was "sufficient evidence to
reach the jury on the question of vileness." Instead, he argues:
"The trial court's failure to strike the evidence as to future
dangerousness was a structural error that unfairly prejudiced
Kasi in the sentencing phase" because the prosecutor's argument
in support of the future dangerousness predicate (that defendant
"would constitute a continuing serious threat to society," id.)
"may well have made it easier to show 'depravity of mind.'"
There is no merit to this contention.
There was sufficient evidence to submit to the jury the
issue of future dangerousness. Such a finding may be based upon
21
"the circumstances surrounding the commission of the offense" of
which defendant was accused. Id. And, a jury may properly
conclude, which this jury chose not to do, that the circumstances
of this heinous crime satisfy the future dangerousness predicate
in that defendant would "constitute a continuing serious threat
to society." Id. Hence, because the issue of future
dangerousness properly was submitted to the jury, it becomes
irrelevant whether the prosecutor's argument on that issue "may
well have made it easier" to show vileness.
Next, defendant contends the trial court erred in denying
his motion for a new trial because the prosecutor allegedly
failed to disclose that Mrs. Darling had been diagnosed as having
a post-traumatic stress disorder. The presentence report
revealed that, as the result of defendant's murder of her husband
in her presence, she suffered from the disorder. In the motion,
defendant asserted the information concerning the disorder,
affecting one of the Commonwealth's principal witnesses, was
"exculpatory," and that the prosecutor's failure to disclose it
at trial violated Brady v. Maryland, 373 U.S. 83 (1963). The
trial court correctly denied the motion during a post-trial
hearing.
The Commonwealth's Attorney unequivocally represented to the
court that neither he nor any of the investigating police
officers had knowledge at the time of trial "of the label that
22
had been placed on this witness by a doctor in Pennsylvania."
The court accepted the representation and found that no one
connected with the prosecution "knew of this event and there's no
evidence that they did." Hence, there is no merit in defendant's
Brady claim. The prosecution's duty to disclose is limited to
information then known to it. See Robinson v. Commonwealth, 231
Va. 142, 155, 341 S.E.2d 159, 167 (1986).
Next, defendant contends the trial court erred in certain
rulings on jury matters made during and after the trial. We
already have ruled that several jury related issues defendant
raises are meritless, that is, the court's refusal to inquire of
the jurors whether they engaged in premature deliberations
(assignment of error 31) and refusal to declare a mistrial when
the jury expressed concern about their personal security
(assignment of error 34).
During the morning of the second day of trial in the penalty
phase, and after the verdict in the guilt phase had been
announced, defendant advised the court there had been press
reports that morning of the killing of four Americans in Karachi,
Pakistan the preceding evening. Defendant then asked the court
to question the jurors individually to determine whether any had
heard or read the reports. The court declined the motion, but
continued its practice of asking the jurors at the beginning of
each day of trial whether they had followed the court's
23
admonition not to read, look at, or listen to any reports about
the case. Juror 31 accidentally had heard a portion of a radio
report about the Karachi killings, but the court, upon
questioning her, determined she remained impartial and that none
of the other jurors were aware of the report.
The case proceeded for the remainder of the morning with
testimony of defendant's mitigation witnesses. After lunch,
however, the trial court decided to sequester the jury for the
rest of the case. The court said the press reports of the trial
had degenerated into "opinion and speculation," noting that "the
reporting has gotten crazy."
The court's refusal to grant defendant's repeated motions
for a mistrial during this series of trial events was an exercise
of the court's sound discretion, and we find no abuse of that
discretion.
Next, defendant contends the trial court erroneously denied
permission for defendant to contact a juror for questioning and
to conduct an inquiry about the jury's deliberations. The issue
arose against the following background.
Prior to trial, the court denied permission for defendant to
contact potential jurors. The names of the jurors were not made
public by agreement of counsel. At the beginning of the penalty
stage on November 11, the court entered an order prohibiting the
disclosure of "the name, address, identity or image" of any juror
24
after considering "the need to protect jurors, the absolute right
of jurors not to discuss the case, and protection of the
confidentiality of juror deliberations."
On November 20, six days after the jury's sentencing verdict
was rendered, a newspaper published an article reporting
information gleaned from an interview with one juror about the
penalty stage deliberations. The article quoted the juror as
stating, for example, that some jurors "thought the crime was
vile because Kasi, an immigrant, 'had attacked the American way
of life.'" Also, the juror reportedly labeled defendant a
"terrorist," a term the court had prohibited the participants
from attaching to defendant during the trial proceedings.
On January 6, 1998, defendant moved to set aside the
sentencing verdict, alleging juror misconduct on the basis of the
article. He also asked for permission to subpoena the juror for
interrogation. After a hearing, the trial court, assuming the
news article accurately reported the juror's statements, denied
both motions. The court ruled that the reported information
"relates to the mental impressions of the jury and the way that
they deliberated and considered the evidence." Hence, according
to the court, inquiry of the jury was not allowed. The trial
court was correct.
Virginia has been more careful than most states to protect
the inviolability and secrecy of jury deliberations, adhering to
25
the general rule that the testimony of jurors should not be
received to impeach their verdict, especially on the ground of
their own misconduct. Jenkins, 244 Va. at 460, 423 S.E.2d at
370. Generally, we have limited findings of prejudicial juror
misconduct to activities of jurors that occur outside the jury
room. Id. Here, the alleged misconduct clearly occurred within
the confines of the jury room, and a post-trial investigation
into the allegations was unwarranted.
Finally, defendant contends the sentence of death was
imposed under the influence of passion, prejudice, or other
arbitrary factor, and that the death sentence was excessive or
disproportionate to the penalty imposed in similar cases. While
not directly addressing those issues, defendant asks the Court to
"commute this death sentence to life in prison without parole."
The defendant bases his plea for commutation on an argument
laced with hyperbole, and threats inappropriate in an appellate
brief. He reaches conclusions having absolutely no foundation in
this record. For example, he says the death sentence resulted
from the "open hostility" of the trial judge and because the
prosecutors "were diligent in maligning the defense team
repeatedly in the media." The record shows otherwise. The trial
court in all the proceedings was thorough, even-handed, and
considerate of all counsel, and presided in a manner that was
fair both to the Commonwealth and the defendant. The
26
Commonwealth's Attorney was diligent, well-prepared, and did not
exceed the bounds of conduct expected of an aggressive
prosecutor.
The defendant says that because his crimes were "political,"
he somehow is entitled to First Amendment protection, and that
his death sentence should be commuted to avoid possible violent
acts of reprisal. As the Attorney General observes, defendant
received the death sentence, not because he had a political
motive, but because he murdered two innocent men, and maimed
three others, in an extremely brutal and premeditated manner. As
the defendant moved among the stopped automobiles, he shot
through the rear window of the Darling vehicle, severely wounding
Darling in the torso. In a few seconds, defendant appeared at
the front of the Darling vehicle and fired at him again,
destroying a part of his head. Darling also suffered at least
one gunshot wound to his lower leg, resulting in a compound
fracture. There is nothing "arbitrary" about a death sentence
imposed under the circumstances of this case and, thus, there is
no basis for commutation.
In conducting our proportionality review, we must determine
"whether other sentencing bodies in this jurisdiction generally
impose the supreme penalty for comparable or similar crimes,
considering both the crime and the defendant." Jenkins, 244 Va.
at 461, 423 S.E.2d at 371. See former Code § 17-110.1(C)(2) (now
27
§ 17.1-313(C)(2)). We have examined our records of all capital
murder cases, see former Code § 17-110.1(E) (now § 17.1-313(E)),
including those cases where a life sentence was imposed. We have
particularly studied those cases in which the death penalty was
based on the vileness factor. See Cardwell v. Commonwealth, 248
Va. 501, 517, 450 S.E.2d 146, 156 (1994), cert. denied, 514 U.S.
1097 (1995).
Based upon this review, we conclude that defendant's death
sentence is not excessive or disproportionate to penalties
generally imposed by sentencing bodies in the Commonwealth for
similar conduct. The death sentence generally is imposed for a
capital murder when, as here, the defendant is also convicted of
killing another person. Goins v. Commonwealth, 251 Va. 442, 469,
470 S.E.2d 114, 132, cert. denied, 519 U.S. 887 (1996).
Consequently, we hold the trial court committed no
reversible error, and we have independently determined from a
review of the entire record that the sentence of death was
properly assessed. Thus, we will affirm the trial court's
judgment.
Record No. 980797 — Affirmed.
Record No. 980798 — Affirmed.
28