Lenz v. Commonwealth

Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Lemons, JJ., and Compton, S.J.

MICHAEL W. LENZ
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 002779 April 20, 2001

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Thomas H. Wood, Judge

In this appeal, we review the capital murder conviction

and sentence of death imposed upon Michael William Lenz.

I. Proceedings

The defendant was tried before a jury on an indictment

charging him with the capital murder of Brent H. Parker in

violation of Code § 18.2-31(3), "[t]he willful, deliberate,

and premeditated killing of any person by a prisoner confined

in a state or local correctional facility." At the time of

Parker's death, the defendant and Parker were inmates at the

Augusta Correctional Center. The jury found the defendant

guilty of capital murder.

In the penalty phase of the capital murder trial, the

jury fixed the defendant's punishment at death, finding that

he represented a continuing serious threat to society and 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 to the

victim. See Code § 19.2-264.2. After considering a report
prepared by a probation officer pursuant to Code § 19.2-264.5,

the circuit court sentenced the defendant in accord with the

jury's verdict.

II. The Evidence Adduced During Guilt Phase

Applying familiar principles of appellate review, we will

recite the evidence presented at trial in the light most

favorable to the Commonwealth, the prevailing party in the

circuit court, and we will accord the Commonwealth the benefit

of all inferences fairly deducible from that evidence. Dowden

v. Commonwealth, 260 Va. 459, 461, 536 S.E.2d 437, 438 (2000).

During the early evening of January 16, 2000, the

defendant, Parker, Jeffrey Remington, and three other inmates

attended a meeting of a group referred to as the Ironwood

Kindred. The meeting occurred in Building J-5, which is a

part of the Augusta Correctional Center.

Earl Jones, a correctional officer, was assigned to

Building J-5 that evening. Jones permitted the six inmates to

enter a room where the meeting occurred. He closed the door,

which contained windows, and "secured" the room.

As Jones sat down at his post outside the meeting room

and began to "sort through" inmate passes that he had

collected, he "noticed a commotion." Jones "got on" his radio

and requested help from other correctional officers because he

observed a fight. As Jones walked toward the room where the

2
inmates were meeting, three of the inmates "ran out of the

room," and one of the inmates said, "[t]hey're stabbing him."

Jones went to the door and saw "Remington and Lenz

stabbing Parker." Parker was lying "on his back; on the

floor, between Remington and Lenz." Parker "was making a

feeble attempt to defend himself. . . . He had his hands up."

As Parker tried to use his hands to "block" the knives from

piercing his body, the defendant and Remington "took their

free hand[s]; pushed [Parker's] hands aside and then stabbed

him."

Jones opened the meeting room door and ordered the

defendant and Remington to stop stabbing Parker. Jones

testified, "[t]hey simply looked at me and went back to

stabbing him." Jones used his radio again to request help and

asked his fellow correctional officers to hurry because

Remington and the defendant "were trying to kill this guy."

Jones did not go into the room because Remington and the

defendant had knives, and Jones was unarmed.

Edward V. Houching, a correctional officer, responded to

Jones' request for assistance. When Houching arrived at the

meeting room, he saw the defendant and Remington stab Parker

between 10 to 15 times as Parker was lying on the floor in a

fetal position. Like Jones, Houching ordered the defendant

and Remington to stop, but they continued to stab Parker.

3
Parker was not "doing anything to defend himself," and the

defendant "was bent over, stabbing [Parker], over and over and

over."

Within a few seconds after Houching arrived at the

meeting room, two sergeants and correctional officer John

Edward Simmons also responded. Simmons saw the defendant stab

Parker six or seven times in an area that extended from

Parker's "underarm" to his waist as Parker was lying on his

side on the floor. Simmons also saw Remington stab Parker in

the shoulder and back. After a sufficient number of

correctional officers arrived at the meeting room, the

officers, some of whom were armed with mace, entered the room,

and Simmons told the defendant and Remington "to drop" their

knives. The defendant placed his knife on a table, and

Remington eventually surrendered his knife. The officers

placed handcuffs on the defendant and Remington and escorted

them from the area.

Rita K. Dietz, a registered nurse employed at the Augusta

Correctional Center, rendered emergency assistance to Parker.

When she walked into the meeting room to assist him, he was

"very pale" and "surrounded by blood." As she approached him,

she noticed that his shirt was soaked in blood. She ripped

his shirt off. She testified that "[e]very time I encountered

a couple of wounds, I encountered more wounds." She described

4
Parker's medical condition as "[v]ery critical." She placed

bandages on his wounds until she "ran out." She testified,

"at that point, the stretcher had arrived. So we took the

sheet off the stretcher . . . Parker was still alive, and he

helped roll onto the sheet. And we lifted the sheet up, which

the one wound, out of the left side, just poured like water;

like somebody had turned a faucet on, when we lifted him. And

we got him on the stretcher." Parker was transported by

ambulance to the Augusta Medical Center, where he died.

Gregory Price Wanger, the Assistant Chief Medical

Examiner for the Western District of Virginia, performed an

autopsy on Parker's body. Wanger testified that Parker had

sustained 68 stab wounds and one cut wound, all of which were

inflicted upon Parker when he was alive. Dr. Wanger explained

that a stab wound is "shorter on the surface than it is deep"

and "implies a thrusting motion[,]" whereas a cut wound "is

longer on the surface than it is deep" and "implies a

slashing-like motion." The stab wounds penetrated Parker's

chest, abdomen, back, left arm, and right forearm.

Dr. Wanger identified 40 stab wounds, "from the upper

part of [Parker's] chest down through the middle and center

part of the chest, and into the abdomen." These wounds all

contributed to his death. Parker's left lung and liver were

stabbed seven times each and the wounds produced serious

5
internal bleeding. The wounds to Parker's lungs would have

been fatal without the other wounds. Additionally, "the

wounds to the liver; by themselves, would have been fatal

without the other wounds to [his] body."

III. Evidence Adduced During Penalty Phase

During the penalty phase of the trial, the Commonwealth

presented evidence regarding the defendant's future

dangerousness and the vileness of his crime. The Commonwealth

introduced the defendant's prior convictions for possession of

a firearm after being convicted of a felony and breaking and

entering. The Commonwealth also relied upon evidence that it

presented in the guilt phase of the trial.

The defendant offered evidence in mitigation of his

offense. Martin Rogozinski, a psychologist employed at the

Augusta Correctional Center, testified that he spoke with the

defendant soon after Parker was murdered and that it was

Rogozinski's opinion that the defendant had murdered Parker

based "solely on a religious conviction."

The defendant testified during the penalty phase. He

stated that he was a practicing member of the "Asatru"

religion. According to the defendant, several inmates had

approached him and asked him to "construct" an Asatru group,

but his efforts to do so were "thwarted" by Parker.

6
 The defendant testified that on the evening of the

murder, he planned to perform an Asatru ceremony in the

meeting room. The defendant recited poetic literature and

then asked Parker to approach an altar. The defendant

testified that "I called [Parker] up to the altar and I asked

— and I said to him, 'It's been a long, hard path between us.'

And [Parker] said, 'Yes, it is.' And I pulled the knife out

of my pocket. And I said, 'Are you trying to take it to the

next step?' And he said, 'Yes, I am.' And so I stabbed him."

The defendant admitted that he did not like Parker, that he

had planned to kill Parker that day, and that he had

threatened others in the meeting room with the knife.

The defendant presented the testimony of Gary Lee Bass,

the Chief of Operations at the Virginia Department of

Corrections and Jerry Wayne Armentrout, the Assistant Warden

of Operations at the Red Onion State Prison. Bass and

Armentrout testified about "prison life" and the security

conditions that the defendant would encounter at a Virginia

maximum security correctional facility if he were sentenced to

life imprisonment. Two officers assigned to the Augusta

Correctional Center testified that the defendant had never

given them any problems while he was under their supervision.

Patricia Daley Lenz, the defendant's mother, testified

about his childhood and family interaction. She stated that

7
the defendant's biological father was absent during much of

the defendant's early childhood and that the defendant's

adoptive father was very strict and favored his biological

child.

IV. Assignments of Error Waived

The defendant filed 18 separate assignments of error,

which he has reduced to 15 questions presented on appeal.

However, the defendant failed to brief three of his

assignments of error. Consequently, they are waived, and we

will not consider them on appeal. Kasi v. Commonwealth, 256

Va. 407, 413, 508 S.E.2d 57, 60 (1998), cert. denied, 527 U.S.

1038 (1999). The assignments of error waived are: "2. The

[c]ourt erred in its denial of defendant's motion for

discovery and inspection;" "9. The [c]ourt erred in its

denial of defendant's motion to prevent introduction of

defendant's prison record;" and "15. The [c]ourt erred in its

refusal to allow defendant to pose certain questions to jury

panel."

V. Issues Previously Decided

The defendant raised several issues on appeal which have

been decided adversely to his claims by our previous

decisions. We adhere to those rulings, and we will not

discuss them further. The issues previously resolved are:

8
 (i) Whether Virginia's death penalty statutes provide

"meaningful guidance" to the jury. See Williams v.

Commonwealth, 248 Va. 528, 535, 450 S.E.2d 365, 371 (1994),

cert. denied, 515 U.S. 1161 (1995).

(ii) Whether Virginia's penalty phase instructions

adequately informed the jury regarding the concept of

mitigation. See Swann v. Commonwealth, 247 Va. 222, 228, 441

S.E.2d 195, 200, cert. denied, 513 U.S. 889 (1994).

(iii) Whether the use of unadjudicated conduct to prove

future dangerousness without proof of such conduct beyond a

reasonable doubt is constitutional. See Goins v.

Commonwealth, 251 Va. 442, 453, 470 S.E.2d 114, 122, cert.

denied, 519 U.S. 887 (1996).

(iv) Whether the "upon good cause shown" standard in

Code § 19.2-264.5 is constitutional. See Breard v.

Commonwealth, 248 Va. 68, 76, 445 S.E.2d 670, 676, cert.

denied, 513 U.S. 971 (1994).

(v) Whether Virginia's capital murder statute is

unconstitutional because it permits the court to consider

hearsay evidence in the post-sentence report. See Goins, 251

Va. at 453, 470 S.E.2d at 122.

(vi) Whether the appellate review procedures in Virginia

are constitutional. See Mickens v. Commonwealth, 252 Va. 315,

9
320, 487 S.E.2d 302, 305 (1996), cert. denied, 520 U.S. 1269

(1997).

(vii) Whether the circuit court erred in denying the

defendant's motion to mail a questionnaire to the potential

jury venire. See Goins, 251 Va. at 454, 470 S.E.2d at 122;

Strickler v. Commonwealth, 241 Va. 482, 489-90, 404 S.E.2d

227, 232, cert. denied, 502 U.S. 944 (1991).

(viii) Whether the circuit court erred in denying

defendant's motion to prohibit death qualification of jurors

and whether the circuit court erred in overruling defendant's

objection to the seating and the death qualification of the

jury. See Yeatts v. Commonwealth, 242 Va. 121, 127, 410

S.E.2d 254, 258 (1991); cert. denied, 503 U.S. 946 (1992);

Eaton v. Commonwealth, 240 Va. 236, 246, 397 S.E.2d 385, 391

(1990), cert. denied, 502 U.S. 824 (1991); Pruett v.

Commonwealth, 232 Va. 266, 277-78, 351 S.E.2d 1, 7-8 (1986),

cert. denied, 482 U.S. 931 (1987).

(ix) Whether the circuit court erred in denying

defendant's motion to examine investigators under oath. See

Burns v. Commonwealth, 261 Va. 307, 328, ___ S.E.2d ___, ___

(2001).

VI. Effective Assistance of Counsel

The defendant argues that he was "denied effective

assistance of [c]ounsel in that the Department of Corrections

10
housed [him] hours away from the site of the trial and of the

offices of his appointed attorneys. Because of these great

distances the defendant could only meet with his attorneys for

a short period of time. The time the defendant spent with his

attorneys was much less than the travel time to and from the

location."

We will not consider this claim on direct appeal. Claims

raising ineffective assistance of counsel must be asserted in

a habeas corpus proceeding and are not cognizable on direct

appeal. Johnson v. Commonwealth, 259 Va. 654, 675, 529 S.E.2d

769, 781, cert. denied, ___ U.S. ___, 121 S.Ct. 432 (2000);

Roach v. Commonwealth, 251 Va. 324, 335 n.4, 468 S.E.2d 98,

105 n.4, cert. denied, 519 U.S. 951 (1996).

VII. Pretrial Motions

A.

The defendant filed a pretrial motion and requested that

the circuit court appoint James Evans Aiken as an expert

witness on the subject of prison operations and

classifications. Aiken is a former warden and a former

commissioner of the Indiana Department of Corrections. The

defendant wanted to retain Aiken, at the Commonwealth's

expense, to assist the defendant with the presentation of

"prison life" evidence. The defendant, relying upon Ake v.

Oklahoma, 470 U.S. 68 (1985), and Husske v. Commonwealth, 252

11
Va. 203, 476 S.E.2d 920 (1996), argues that the due process

and equal protection clauses of the Fourteenth Amendment of

the federal constitution required the circuit court to

appoint, at the Commonwealth's expense, an expert to assist

him.

We disagree with the defendant. In Ake, the Supreme

Court considered whether an indigent defendant has a

constitutional right to a psychiatric examination and

psychiatric assistance necessary to prepare an effective

defense based upon his mental condition, when his sanity at

the time he committed the criminal offense was seriously in

question. The Supreme Court held that an indigent defendant

is entitled to the appointment of a psychiatrist to assist him

in his defense in such circumstances and explained its

rationale:

"We recognized long ago that mere access to the
courthouse doors does not by itself assure a proper
functioning of the adversary process, and that a
criminal trial is fundamentally unfair if the State
proceeds against an indigent defendant without
making certain that he has access to the raw
materials integral to the building of an effective
defense. Thus, while the Court has not held that a
State must purchase for the indigent defendant all
the assistance that his wealthier counterpart might
buy, see Ross v. Moffitt, 417 U.S. 600 (1974), it
has often reaffirmed that fundamental fairness
entitles indigent defendants to 'an adequate
opportunity to present their claims fairly within
the adversary system,' id., at 612. To implement
this principle, we have focused on identifying the
'basic tools of an adequate defense . . . ,' Britt

12
 v. North Carolina, 404 U.S. 226, 227 (1971), and we
have required that such tools be provided to those
defendants who cannot afford to pay for them."

Ake, 470 U.S. at 77. The Supreme Court concluded that the due

process clause's guarantee of fundamental fairness is

implicated

"when [an indigent] defendant demonstrates to the
trial judge that his sanity at the time of the
offense is to be a significant factor at trial, [and
that in such circumstances] the State must, at a
minimum, assure the defendant access to a competent
psychiatrist who will conduct an appropriate
examination and assist in evaluation, preparation,
and presentation of the defense."

Id. at 83.

In Husske, we applied the Supreme Court's holding in Ake,

and we held that the Commonwealth of Virginia, upon request,

must provide indigent defendants with the basic tools of an

adequate defense and that in certain instances, these basic

tools may include the appointment of non-psychiatric experts.

Husske, 252 Va. at 211, 476 S.E.2d at 925. We stated:

"[A]n indigent defendant's constitutional right to
the appointment of an expert, at the Commonwealth's
expense, is not absolute. We hold that an indigent
defendant who seeks the appointment of an expert
witness, at the Commonwealth's expense, must
demonstrate that the subject which necessitates the
assistance of the expert is 'likely to be a
significant factor in his defense,' Ake, 470 U.S. at
82-83, and that he will be prejudiced by the lack of
expert assistance. Id. at 83. An indigent
defendant may satisfy this burden by demonstrating
that the services of an expert would materially
assist him in the preparation of his defense and
that the denial of such services would result in a

13
 fundamentally unfair trial. . . . The indigent
defendant who seeks the appointment of an expert
must show a particularized need."

Id. We held that an indigent defendant who seeks the

appointment of an expert, at the Commonwealth's expense, must

show a particularized need for such services and that he will

be prejudiced by the lack of expert assistance. Id. at 213,

476 S.E.2d at 926. We stated that whether a defendant has

made the requisite showing of a particularized need lies

within the discretion of the circuit court. Id. at 212, 476

S.E.2d at 926.

Applying the aforementioned principles, we hold that the

circuit court did not abuse its discretion in denying the

defendant's request for the appointment of an expert at the

Commonwealth's expense on the subject of "prison life." The

circuit court's denial of the defendant's request did not

result in a fundamentally unfair trial, and we note that the

defendant, who adduced testimony from witnesses who testified

on the subject of "prison life," suffered no prejudice.

The defendant also argues that "[i]n addition to equal

protection and due process, the [S]ixth [A]mendment right to

counsel and due process, compensation for experts, even in

non-capital cases, has been required to satisfy the [S]ixth

[A]mendment's entitlement to the effective assistance of

14
counsel." The defendant's claim is just another twist of the

foregoing contentions, and we reject it.

B.

The defendant argues that the circuit court erred in

denying his pretrial "motion to poll individual jurors as to

which statutory aggravating factors and elements of vileness

were found." The defendant, in his brief, says that the

circuit court denied his motion, and the defendant refers this

Court to an order dated July 25, 2000, which is contained in

the appendix as well as the record. The circuit court,

however, did not grant or deny the defendant's motion in the

circuit court's order dated July 25, 2000. We have reviewed

all the circuit court's orders which are in the record, and we

have not found an order disposing of this particular motion.

We can only conclude that the circuit court did not rule on

the defendant's motion, and the defendant failed to request a

ruling from the circuit court. Therefore, the defendant has

waived his claim because he was required to request a ruling

from the circuit court, and he failed to do so.

VIII. Voir Dire

A.

The defendant argues that the circuit court "erred in

sustaining the Commonwealth's objection to defense counsel's

inquiring during voir dire of a prospective juror['s] ability

15
to follow Virginia law concerning mitigation evidence." The

defendant says that the circuit court's failure to permit him

to ask these questions to the venire "regarding the individual

mitigation elements contained in the Virginia statutes"

violated the Sixth, Eighth, and Fourteenth Amendments to the

federal constitution.

The defendant complains about his voir dire of two

members of the venire, Christina M. Rigney and Keith D.

Wilkins. During the defendant's voir dire of Rigney, the

following colloquy occurred:

"[DEFENSE COUNSEL]: Okay. Would you be able
to consider facts — and I call them facts of
mitigation, such as a troubled family history, abuse
of drugs . . .

"MS. RIGNEY: Yes.

"[COMMONWEALTH'S ATTORNEY]: Judge, I'm going
to object, unless there's instructions about
mitigation factors . . .

"COURT: That's one thing. And the second
thing is that I — I think your question is
objectionable because you're asking her to decide a
hypothetical question, Mr. Hill [defendant's
counsel].

"[DEFENSE COUNSEL]: I — I'll withdraw the
question.

"COURT: Okay.

"[DEFENSE COUNSEL]: That's all the questions I
have for you.

"MR. RIGNEY: Okay.

16
 "[DEFENSE COUNSEL]: Thank you."

During the defendant's voir dire of Wilkins, the

following colloquy occurred:

"[DEFENSE COUNSEL]: Before deciding on the —
whether to impose a punishment of life or a
punishment of guilt, if the Court were to instruct
you that there were certain facts that would
mitigate the sentence . . .

"[COMMONWEALTH'S ATTORNEY]: Judge, I'm going
to object to that. There's no instruction of the
Court in that regard.

"[DEFENSE COUNSEL]: Judge, I thought I had
asked that question of an earlier witness. And
maybe I just didn't . . .

"COURT: He objected . . . You did, and he can
object to it . . . We haven't given Mr. Wilkins that
instruction.

"You know, gentlemen, that's going to require a
great deal of work at this point. I mean, as you
know . . .

"The question is whether you will follow the
instructions.

"[DEFENSE COUNSEL]: I . . .

"COURT: All of them.

"[DEFENSE COUNSEL]: Right. I'll withdraw the
question, Your Honor.

"COURT: All right."

As the above colloquies clearly demonstrate, the

defendant's counsel withdrew his questions about mitigation

when he was questioning Rigney and Wilkins. We will not

permit the defendant's counsel to withdraw questions and then,

17
on appeal, assign error to the circuit court's ruling on

objections to the questions that he voluntarily withdrew. We

hold that his contentions are procedurally defaulted.

B.

After the jury was sworn and seated, the defendant stated

that he "also object[s] to the [c]ourt's ruling disallowing

the questions regarding the individual mitigation elements of

the — of the statute." The defendant assigns a separate error

to this objection. However, as we have already stated, we

will not permit the defendant to withdraw questions that he

asked of the venire and subsequently make an objection based

upon questions that he voluntarily withdrew. Just as

significant, once a jury is sworn, any objection to the

seating of a juror can only be made with leave of court, and

the defendant failed to obtain leave of court. Code § 8.01-

352; Hill v. Berry, 247 Va. 271, 273-74, 441 S.E.2d 6, 7

(1994).

IX. Issues that Arose at Trial

A.

As we have already stated, the victim, Parker, was an

inmate incarcerated in the Augusta Correctional Center. The

Commonwealth filed a pretrial motion in limine requesting that

the circuit court prohibit the defendant from introducing

evidence about the victim's criminal record. The circuit

18
court granted the Commonwealth's motion. In spite of the

circuit court's ruling, during the penalty phase of the trial,

the defendant tried to elicit information regarding the

victim's criminal record. The Commonwealth objected, and the

circuit court sustained the objection.

The defendant argues that the circuit court erred in

sustaining the objection because the defendant says that he

was entitled to present to the jury all the facts when it is

making a decision regarding his life or death. Continuing,

the defendant says that Code § 19.2-264.4(B) requires that the

circuit court admit in evidence the victim's criminal record

because that statute permits the admission of evidence

regarding circumstances surrounding the offense, subject to

the rules of evidence. We disagree with the defendant's

assertions.

Code § 19.2-264.4(B) states:

"In cases of trial by jury, evidence may be
presented as to any matter which the court deems
relevant to sentence, except that reports under the
provisions of § 19.2-299, or under any rule of
court, shall not be admitted into evidence.
"Evidence which may be admissible, subject to
the rules of evidence governing admissibility, may
include the circumstances surrounding the offense,
the history and background of the defendant, and any
other facts in mitigation of the offense. Facts in
mitigation may include, but shall not be limited to,
the following: (i) the defendant has no significant
history of prior criminal activity, (ii) the capital
felony was committed while the defendant was under
the influence of extreme mental or emotional

19
 disturbance, (iii) the victim was a participant in
the defendant's conduct or consented to the act,
(iv) at the time of the commission of the capital
felony, the capacity of the defendant to appreciate
the criminality of his conduct or to conform his
conduct to the requirements of law was significantly
impaired, (v) the age of the defendant at the time
of the commission of the capital offense, or (vi)
mental retardation of the defendant."

Contrary to the defendant's assertions, Code § 19.2-

264.4(B) did not require the circuit court to admit in

evidence the victim's criminal history, which was not relevant

to any issue in this proceeding. The defendant simply wanted

to introduce evidence of the victim's prior criminal record to

show that the victim had been convicted of murder. The

victim's prior convictions had no relevance to the issue

whether the defendant's acts were vile, inhuman, or showed

depravity of mind, and the victim's criminal record was not

relevant to the issue whether the defendant would constitute a

serious continuing threat to society.

We also note that the defendant had no constitutional

right to present evidence of the victim's criminal history and

that the defendant's reliance upon Lockett v. Ohio, 438 U.S.

586 (1978), is misplaced. In Lockett, the Supreme Court held

that the Eighth and Fourteenth Amendments of the federal

constitution require that "the sentencer, in all but the

rarest kind of capital case, not be precluded from

considering, as a mitigating factor, any aspect of a

20
defendant's character or record and any of the circumstances

of the offense that the defendant proffers as a basis for a

sentence less than death." 438 U.S. at 604 (plurality

opinion). The Supreme Court pointed out in Lockett that

"[n]othing in this opinion limits the traditional authority of

a court to exclude, as irrelevant, evidence not bearing on the

defendant's character, prior record, or circumstances of his

offense." Id. at 605 n.12 (plurality opinion).

As we have already stated, the victim's criminal history

was not relevant and had no bearing on the defendant's

character, prior record, or the circumstances of the

defendant's offense. The defendant admitted during the

penalty phase of the trial that he did not like the victim,

that he had intended to kill the victim, and that he killed

the victim because the victim did not respect the defendant's

religious beliefs.

B.

The circuit court, without any objection from the

defendant, gave the following jury instruction:

"The Court instructs the jury that the evidence
must establish beyond a reasonable doubt that the
defendant actually caused the death of Brent Parker
before you can find him guilty of capital murder.
One who is present, aiding and abetting the actual
killing, but who is not the immediate perpetrator,
is a principal in the second degree and may not be
found guilty of capital murder.

21
 "You may find the defendant guilty of capital
murder if the evidence establishes that the
defendant jointly participated in the fatal
stabbing, if it is established beyond a reasonable
doubt that the defendant was an active and immediate
participant in the act or acts that caused the
victim's death."

The defendant contends that the circuit court erred in

granting this jury instruction. The defendant, however,

admits that he did not object in the circuit court.

Accordingly, the defendant's argument is procedurally barred,

and we will not consider it on appeal. Rule 5:25.

C.

The jury returned a verdict which fixed the defendant's

punishment at death based upon both aggravating factors

contained in Code § 19.2-264.2, future dangerousness and

vileness. The defendant argues that the circuit court

erroneously refused his proposed instruction which stated that

the jury could only fix the defendant's punishment at death

based upon the vileness predicate if the jury unanimously

agreed that the Commonwealth's evidence proves torture or

depravity of mind or an aggravated battery to the victim

beyond the minimum necessary to accomplish an act of murder.

The proposed instruction would have also informed the jury

that its "decision must be unanimous as to at least one of the

above to find that [the defendant's] conduct was outrageously

or wantonly vile, horrible or inhuman."

22
 We need not decide the defendant's contention because the

jury fixed the defendant's punishment at death based upon both

statutory aggravators. The jury's finding that the defendant

constituted a continuing serious threat to society is an

independent basis for the jury's imposition of the death

penalty. The defendant does not challenge the jury's finding

of the future dangerousness aggravator, therefore, that issue

is not before this Court on appeal. See Rash v. Hilb, Rogal &

Hamilton Co., 251 Va. 281, 286-87, 467 S.E.2d 791, 794-95

(1996); United Leasing Corp. v. Thrift Ins. Corp., 247 Va.

299, 308, 440 S.E.2d 902, 907 (1994); Crist v. Metropolitan

Mortgage Fund, 231 Va. 190, 193, 343 S.E.2d 308, 310 (1986);

Stamie E. Lyttle Co. v. County of Hanover, 231 Va. 21, 27, 341

S.E.2d 174, 178 (1986); Haynes v. Bekins Van & Storage Co.,

211 Va. 231, 233, 176 S.E.2d 342, 344 (1970).

We do not consider the defendant's argument that the

circuit court's failure to grant the proffered jury

instruction violates his Sixth and Fourteenth Amendment rights

to effective assistance of counsel because such claims are not

cognizable upon direct appeal. Johnson, 259 Va. at 675, 529

S.E.2d at 781.

X. Motion to Set Aside the Jury Verdict

The defendant argues that the Commonwealth failed to

present sufficient evidence that he had committed a capital

23
murder in violation of Code § 18.2-31(3). The defendant

states that "due to the similarities in the weapons taken from

Remington and Lenz it was impossible to determine which of

Parker's wounds came from Lenz's weapon." The defendant

contends that the Commonwealth failed to prove "that stab

wounds created by Lenz could by themselves have killed

Parker." Continuing, the defendant argues that the testimony

of correctional Officers Jones, Simmons, and Houching was not

credible and that the Commonwealth failed to prove that the

defendant had a specific intent to kill the victim.

The defendant's contentions are without merit. We hold

that the Commonwealth proved, beyond a reasonable doubt, that

the defendant intentionally killed Parker. The jury was

instructed that it "may find the defendant guilty of capital

murder if the evidence establishes that the defendant jointly

participated in the fatal stabbing, if it is established

beyond a reasonable doubt that the defendant was an active and

immediate participant in the act or acts that caused the

victim's death." As we have already stated, Officer Jones

testified that he saw the defendant stab Parker "on the front

part of [Parker's] body." Officer Houching testified that he

saw the defendant stab Parker between 10 and 15 times.

Officer Simmons testified that when he arrived at the meeting

24
room, he saw the defendant stab Parker about six or seven

times.

Officer Jones also testified that the defendant stabbed

the victim from the "waist up." Dr. Wagner testified that the

victim had 40 stab wounds in his chest area and that the stab

wounds had penetrated the victim's lungs, liver, and other

major organs. He also testified that all the wounds

contributed to the victim's death.

The defendant, relying upon Smith v. Commonwealth, 220

Va. 696, 261 S.E.2d 550 (1980), argues that the Commonwealth

failed to prove beyond a reasonable doubt that he acted with

premeditation. The defendant's argument is without merit. We

stated in Smith:

"To premeditate means to adopt a specific intent to
kill, and that is what distinguishes first and
second degree murder. The intent to kill must come
into existence at some time before the killing; it
need not exist for any particular length of time.
As we said in Pannill v. Commonwealth, 185 Va. 244,
255, 38 S.E.2d 457, 463 (1946), quoting from
McDaniel v. Commonwealth, 77 Va. 281, 284 (1883),
'it is necessary that the killing should have been
done on purpose and not by accident or without
design. . . .' The exact state of the defendant's
mind at the time of killing is the crucial factor in
determining intent. 'It is the will and purpose to
kill, not necessarily the interval of time, which
determine the grade of the offense.' Akers v.
Commonwealth, 216 Va. 40, 48, 216 S.E.2d 28, 33
(1975)."

220 Va. at 700-01, 261 S.E.2d at 553; accord Rhodes v.

Commonwealth, 238 Va. 480, 485, 384 S.E.2d 95, 98 (1989). The

25
evidence of record in this case was sufficient to permit the

jury to find that the defendant acted with premeditation. The

jury was entitled to conclude that the defendant had a

specific intent to kill the victim, based upon the defendant's

acts of stabbing the victim repeatedly in the chest with a

knife.

The defendant's argument that the testimony of Officers

Jones, Simmons, and Houching is not credible lacks merit. It

was the province of the jury to assess the credibility of the

witnesses. Phan v. Commonwealth, 258 Va. 506, 513, 521 S.E.2d

282, 286 (1999); Goins v. Commonwealth, 218 Va. 285, 289, 237

S.E.2d 136, 139 (1977).

XI. Statutory Review

A.

Pursuant to Code § 17.1-313(C)(1), we must determine

whether the sentence of death in this case was imposed under

the influence of passion, prejudice, or any other arbitrary

factor. We observe that the defendant does not contend that

the sentence of death imposed upon him was the influence of

passion, prejudice, or other arbitrary factor. Nonetheless,

we have reviewed the record, and we find no evidence that any

such factor was present or influenced either the jury's or the

circuit court's sentencing decision.

B.

26
 Code § 17.1-313(C)(2) requires this Court to determine

whether the sentence of death in this case is "excessive or

disproportionate to the penalty imposed in similar cases,

considering both the crime and the defendant." Pursuant to

Code § 17.1-313(E), we have accumulated the records in all

capital murder cases reviewed by this Court. The records

include not only those capital murder cases in which the death

penalty was imposed, but also those cases in which the circuit

court or jury imposed a life sentence, and the defendant

petitioned this Court for an appeal.

C.

The defendant argues in his brief that the "dominating

circumstances surrounding [his] crime is [sic] the

determination that the victim and defendant were at the time

of it's [sic] commission prisoners confined in a state

correctional facility. There is no underlying felony in this

case. Had this same event taken place outside the prison it

could only have been charged as first degree murder. The

defendant therefore argues that the similar cases this [C]ourt

should compare his with are those dealing with murders where

the defendant and the victim are inmates at a correctional

facility." We disagree with the defendant.

In Johnson v. Commonwealth, 259 Va. at 683, 529 S.E.2d at

786, we rejected an argument which is substantially similar to

27
the argument that the defendant asserts in this appeal. In

Johnson, the defendant argued that his death sentence was

disproportionate and excessive when compared to the penalties

imposed on other defendants who were 16 years old when they

committed similar offenses. Rejecting this contention, we

held that when conducting our proportionality review, we must

determine whether other sentencing bodies in this Commonwealth

generally impose the supreme penalty for comparable or similar

crimes, considering both the crime and the defendant. We

refused to limit our proportionality review to cases involving

16-year-old males who had committed similar offenses. Rather,

we compared the record in Johnson with the records in other

capital murder cases, and, because the jury based Johnson's

sentence of death upon both future dangerousness and vileness,

we gave particular consideration to other capital cases in

which the death penalty was imposed under both predicates. We

pointed out that the defendant's age was only one factor to

consider in determining whether other juries generally imposed

the sentence of death for similar crimes.

Likewise, in the appeal before this Court, the fact that

the defendant was an inmate, who killed another inmate, is

only one factor to consider in determining whether other

juries generally impose the sentence of death for similar

crimes. Code § 17.1-313(C)(2) does not require that this

28
Court confine its review to crimes that are identical; rather,

we consider comparable or similar crimes.

Applying the appropriate test, we have examined records

in all capital murder cases previously reviewed by this Court

when, as here, the death penalty was imposed based upon Code

§ 18.2-31(3), the capital murder of an inmate while the

defendant was confined in a state or local correctional

facility. See Payne v. Commonwealth, 233 Va. 460, 357 S.E.2d

500, cert. denied, 484 U.S. 933 (1987). Additionally, we have

examined the records in all capital murder cases previously

reviewed by this Court when the sentence of death was based

upon aggravated battery, vileness, and future dangerousness

and the victim died as a result of multiple stabbings. See

Johnson v. Commonwealth, 259 Va. 654, 529 S.E.2d 769; Wilson

v. Commonwealth, 249 Va. 95, 452 S.E.2d 669, cert. denied, 516

U.S. 841 (1995); Breard v. Commonwealth, 248 Va. 68, 445

S.E.2d 670; Murphy v. Commonwealth, 246 Va. 136, 431 S.E.2d

48, cert. denied, 510 U.S. 928 (1993); Satcher v.

Commonwealth, 244 Va. 220, 421 S.E.2d 821 (1992), cert.

denied, 507 U.S. 933 (1993); King v. Commonwealth, 243 Va.

353, 416 S.E.2d 669, cert. denied, 506 U.S. 957 (1992); Mu’Min

v. Commonwealth, 239 Va. 433, 389 S.E.2d 886 (1990), aff'd,

500 U.S. 415 (1991); Watkins v. Commonwealth, 238 Va. 341, 385

S.E.2d 50 (1989), cert. denied, 494 U.S. 1074 (1990); Hoke v.

29
Commonwealth, 237 Va. 303, 377 S.E.2d 595, cert. denied, 491

U.S. 910 (1989); Coleman v. Commonwealth, 226 Va. 31, 307

S.E.2d 864 (1983), cert. denied, 465 U.S. 1109 (1984); Smith

v. Commonwealth, 219 Va. 455, 248 S.E.2d 135 (1978), cert.

denied, 441 U.S. 967 (1979).

Our examination of these decisions, as well as capital

cases resulting in life imprisonment, reveals that the

defendant's sentence of death is neither excessive nor

disproportionate when compared to sentences generally imposed

by sentencing bodies in this jurisdiction for comparable or

similar crimes.

D.

The defendant argues that his research suggests that

"despite there being over twenty two cases as [sic] inmate on

inmate homicides in Virginia prisons since 1985 . . . only one

has resulted in a sentence of death . . . . Furthermore, the

death sentence of Joseph Payne was later committed [sic] to

life in prison by the Governor." Hence, the defendant

contends that his sentence is excessive.

We find no merit in the defendant's assertion that his

sentence is excessive merely because the Governor of this

Commonwealth chose to commute the death sentence of an inmate

who had killed another inmate. We do not consider the actions

30
of the executive branch when making our statutory

determination of proportionality.

The defendant also argues that the sentence of death is

excessive and disproportionate, and that it violates the

Sixth, Eighth, and Fourteenth Amendments to the federal

constitution. This argument is not the subject of an

assignment of error and, therefore, we will not consider it on

appeal.

XII. Verdict Form

This Court, sua sponte, asked the litigants to address

the verdict form utilized during the penalty phase of the

defendant's trial in view of our decision in Atkins v.

Commonwealth, 257 Va. 160, 179, 510 S.E.2d 445, 457 (1999).

Upon considering the letter briefs, the record, and argument

of counsel, we conclude that any questions concerning the

verdict form in this case are procedurally defaulted because

the defendant neither raised these issues in the circuit court

nor assigned error to the verdict form before this Court. See

Rule 5:25; Burns, 261 Va. at 343 n.16, ___ S.E.2d at ___ n.16;

Orbe v. Commonwealth, 258 Va. 390, 403 n.13; 519 S.E.2d 808,

816 n.13 (1999), cert. denied, 529 U.S. 1113 (2000).

XIII. Conclusion

Having reviewed the sentence of death, finding no

reversible error in the record, and perceiving no reason to

31
commute the death sentence, we will affirm the judgment of the

circuit court.

Affirmed.

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