Lovitt v. Commonwealth

Present: All the Justices

ROBIN LOVITT

v. Record No. 001015 OPINION BY JUSTICE BARBARA MILANO KEENAN
Record No. 001420 November 3, 2000

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge

In these appeals, we review the capital murder conviction

and death sentence imposed on Robin Lovitt, along with his

conviction for robbery.

I. PROCEEDINGS

Lovitt was indicted for capital murder based on the

willful, deliberate, and premeditated killing of Clayton Dicks

during the commission of a robbery, in violation of Code § 18.2-

31(4). Lovitt also was indicted for the robbery of Dicks, in

violation of Code § 18.2-58.

In the first stage of a bifurcated trial conducted under

Code § 19.2-264.3, a jury convicted Lovitt of the offenses

charged. In the penalty phase of the trial, the jury fixed his

punishment for capital murder at death based on a finding of

"future dangerousness," and for robbery at life imprisonment.

The trial court sentenced Lovitt in accordance with the jury

verdict.
 We consolidated the automatic review of Lovitt's death

sentence with his appeal of the capital murder conviction. Code

§ 17.1-313(F). We also certified Lovitt's appeal of his robbery

conviction from the Court of Appeals and consolidated that

appeal with his capital murder appeal. Code § 17.1-409.

II. GUILT PHASE EVIDENCE

We will state the evidence presented at trial in the light

most favorable to the Commonwealth, the prevailing party in the

trial court. Walker v. Commonwealth, 258 Va. 54, 60, 515 S.E.2d

565, 568 (1999), cert. denied, ___ U.S. ___, 120 S.Ct. 955,

(2000); Roach v. Commonwealth, 251 Va. 324, 329, 468 S.E.2d 98,

101, cert. denied, 519 U.S. 951 (1996). The evidence showed

that in the early morning hours of November 18, 1998, Clayton

Dicks was stabbed six times in the chest and back while working

during the overnight shift at Champion Billiards Hall (the pool

hall) in Arlington County.

A few months before the killing, Lovitt worked as a cook at

the pool hall on an evening shift that ended when Dicks arrived

to begin the overnight shift. Amy Hudon, the manager at the

pool hall, testified that about two months before Dicks was

killed, she had trouble opening a cash register drawer near a

pool table and asked Lovitt to help her open the drawer. Lovitt

opened it by "wedging" a pair of scissors into the drawer's

2
latch. About two months before the killing, Lovitt quit working

at the pool hall.

On November 17, 1998, the day before the killing, Lovitt

went to the Arlington home of his cousin and tried to sell him a

television set. The same day, Lovitt spoke to an acquaintance

in a failed attempt to find a job.

Later that night, Lovitt went to the pool hall between 8:00

and 10:00 p.m. and spoke with people he knew. When Lovitt asked

some of them for money, each refused his request. Two of these

people recalled that Lovitt wore a flannel shirt that night.

The bartender that night, Thomas Schweiker, did not know Lovitt

but remembered giving matches to a man leaning over the bar.

Later, Schweiker noticed that a pitcher containing cash from

cigarette sales was missing from beneath the bar where the man

had been leaning. Schweiker testified that the man, an African-

American in his middle or late twenties, had a stocky build and

facial hair, and was wearing a plaid flannel shirt.

Dicks arrived at the pool hall between 1:30 and 2:00 a.m.

The other employees present when Dicks arrived had left the pool

hall by 3:00 a.m., leaving Dicks as the sole employee on the

premises. The last four patrons in the pool hall that morning

left between 2:45 and 3:00 a.m. One of these patrons was

Officer Dennis A. Holland of the United States Capitol Police,

who was a long-time patron at the pool hall. Holland testified

3
that he saw a man who looked "familiar" enter the pool hall as

he and his friends were leaving. Holland described the man as

being black, about five feet, ten or eleven inches tall,

weighing between 185 and 190 pounds, and wearing a flannel

shirt.

About 3:25 a.m., José N. Alvarado and Carlos Clavell

entered the pool hall and saw two men arguing behind the bar.

Alvarado testified that one man was shorter than the other, and

that the shorter man repeatedly shoved the taller man, who was

wearing an apron. Alvarado stated that he and Clavell watched

as the shorter man stabbed the taller man six or seven times

with a silver-colored weapon. Alvarado saw blood on the taller

man's apron and watched as the taller man fell to the floor

behind the bar. Clavell testified that he heard the taller man

begging the shorter man to stop attacking him. Both Alvarado

and Clavell saw the assailant repeatedly kick the man who had

fallen to the floor.

Alvarado and Clavell immediately ran from the pool hall to

a service station, where Alvarado telephoned the "911" emergency

response number and reported what they had seen. Although

Alvarado could not identify Lovitt as Dicks's assailant at the

preliminary hearing held in this case, Alvarado testified at

trial that he was about "80% certain" that Lovitt was the

assailant.

4
 When police and emergency medical personnel arrived at the

pool hall in response to Alvarado's telephone call, they found

Dicks lying on the floor behind the bar in a pool of blood.

Dicks was alive but was unable to speak and was taken by

helicopter to a nearby hospital. The multiple stab wounds

prevented his heart from functioning, and he died while awaiting

surgery.

Dicks had been stabbed six times, five times in the chest

and once in the back. Four of these wounds were lethal. Dicks

also suffered two areas of internal hemorrhage on both sides of

his head, as well as external abrasions on both shoulders and on

his left knee.

The police recovered from the pool hall a cash register

that was lying on the floor near where Dicks was found. The

register was broken into pieces, the cash drawer had been

removed from the register and was missing, and a torn piece of a

ten-dollar bill was found nearby. A pair of scissors with

orange handles that was usually kept in a container on the bar

was missing. A police canine unit found an orange-handled pair

of scissors bearing blood lying open in the woods about 15 yards

behind the pool hall.

Warren A. Grant, Lovitt's cousin, testified that Lovitt

arrived at Grant's home in the early morning hours of November

18, 1998. Grant lived about a quarter of a mile from the pool

5
hall in a residential area located on the "other side" of the

woods. Grant stated that Lovitt knocked on his door sometime

between 1:30 and 3:00 a.m. Lovitt was wearing a plaid shirt and

entered the house carrying what looked like a large, square,

gray metal box. After Lovitt unsuccessfully tried to open the

locked box, Grant eventually opened it by using a screwdriver to

"pop" some of the screws securing the box. Lovitt removed money

from the opened cash register drawer and divided the cash

between himself and Grant. Lovitt left the cash register drawer

with Grant and instructed him to "[g]et rid of [it]." A few

days later, Grant began cutting the cash drawer into pieces with

tin snips and put them in a bag.

Grant's girlfriend, Delores L. Harris, testified that she

was in Grant's house that morning and watched Grant and Lovitt

open the cash register drawer. She noticed that Lovitt looked

"sweaty" and gave him a towel.

On November 20, 1998, Arlington Detective Noel E. Hanrahan

obtained pieces of the cash register drawer from Grant. Four

days later, Lovitt was arrested and charged with the present

offenses. At that time, he was wearing a plaid shirt and a dark

jacket, and he told the police that he had been wearing the same

clothes for the past few days. When Officer Stephen Ferrone

collected Lovitt's clothing at the jail, Ferrone asked a

detective whether he needed to seize Lovitt's jacket. Ferrone

6
testified that, upon hearing this question, Lovitt stated, "I

wasn't wearing it when it happened."

Julian J. Mason, Jr., a forensic scientist employed by the

Virginia Division of Forensic Science, qualified as an expert

witness on the subject of tool mark identification. He

testified that the cash register drawer Grant surrendered to the

police had been removed from the broken cash register found on

the floor of the pool hall. Mason also stated that the pry

marks on the cash register drawer were made by the scissors that

were found in the woods behind the pool hall.

Lawrence Abrams, an identification technician for the

Arlington County Police Department, testified that he was not

able to obtain fingerprints from the handle of the scissors due

to its irregularly-shaped surface. The only identifiable

fingerprints obtained in relation to the present crimes were

Grant's fingerprints that were obtained from the cash register

drawer.

Carol Palmer, a forensic scientist employed by the Virginia

Department of Forensic Science, qualified as an expert witness

on DNA testing. Palmer extracted human DNA from two places on

the scissors, on a blade near the tip and on a blade near the

finger loops. She also extracted blood from three small

circular areas on the left front side of Lovitt's jacket, but

the DNA tests were inconclusive and Palmer was unable to

7
determine whether the blood on the jacket was human. Palmer

found no blood on the flannel shirt, black jeans, or shoes that

Lovitt was wearing when he was arrested.

Palmer testified that she performed DNA testing using the

"polymerase chain reaction," or PCR, technique on the DNA

extracted from the scissors. The DNA extracted from the tip of

the scissors displayed a DNA profile that matched the DNA

profile of Dicks. The profile derived from this sample did not

match the DNA profiles of either Lovitt or Grant, thus

eliminating both as contributors of this DNA. Palmer stated

that the chance of someone other than Dicks contributing the DNA

sample on the tip of the scissors was 1 in more than 5.5

billion.

The DNA extracted from the mid-section of the scissors also

matched the DNA profile of Dicks. However, Palmer stated that

this DNA evidence, unlike the DNA evidence from the tip of the

scissors, did not exclude either Lovitt or Grant and, thus, was

inconclusive as to them.

After Lovitt's arrest, he was incarcerated in the Arlington

County Jail in the same unit as Casel Lucas. Lovitt and Lucas

developed a friendship during the two months that they lived

together in this unit. Lovitt first told Lucas that after

leaving the bathroom at the pool hall on the night of the

murder, Lovitt saw a Hispanic man stabbing Dicks. Lovitt told

8
Lucas that, at that time, Lovitt saw the cash register drawer,

grabbed it, and ran from the pool hall.

According to Lucas, Lovitt later stated that he knew Dicks

and was aware that no one else would be in the pool hall late at

night. Lovitt further related that he waited in the bathroom

until everyone left the pool hall before coming out of the

bathroom to attempt to open the cash register drawer. Dicks

confronted Lovitt as he unsuccessfully attempted to open the

cash drawer. Lovitt told Lucas that he had to kill Dicks

because Dicks had recognized him. According to Lovitt, Dicks

asked him, "[W]hy [are] you doing this?" Lovitt admitted to

Lucas that he stabbed Dicks several times and took the cash

register drawer to his cousin's house where he and his cousin

split the money before leaving to buy some drugs. Lovitt told

Lucas that he discarded the murder weapon while en route to or

from Grant's house, and that he changed his clothes at Grant's

house because he had blood on his shirt and pants.

Detective Irv Ellman testified that he has been employed by

the City of Alexandria Police Department for about 15 years. He

stated that he has known Lucas since 1994, that he knows other

people in the law enforcement community who know Lucas, and that

Lucas has a reputation among the law enforcement community for

being truthful.

9
 On cross-examination, Ellman testified that he was aware of

Lucas's felony convictions. When asked if he knew how many

convictions Lucas had, Ellman stated, "Myself, I'm responsible

for probably 14 counts, some burglaries and a recent armed

burglary. That is how I know that he is truthful." When asked

whether Lucas had testified on a previous occasion in an

unrelated case in order "to cut a deal against someone else,"

Ellman replied that he knew Lucas had testified in an earlier

case, but did not know if he had made a "deal" with the

prosecutor. When asked whether he believed that Lucas would lie

to help or save himself, Ellman replied, "No."

Detective Stuart Chase of the Arlington County Police

Department testified that Carlos Clavell, one of the two

witnesses to the killing, told Chase that he saw "a light-

colored vehicle, probably a Cadillac" parked in the pool hall

parking lot when he and Alvarado arrived at the pool hall that

night. Clavell told Chase that he saw the Cadillac again when

he and Alvarado ran to telephone the police, but that the car

was gone when they returned to the pool hall with the police.

Andre M. Boyd and Tashia A. Davis testified that they were

at the pool hall on the night of the killing, and that Lovitt

asked each of them for money. Boyd and Davis left the pool hall

together between 2:45 and 3:00 a.m. on November 18, 1998.

According to Boyd, he and Davis walked to Boyd's mother's house

10
about seven blocks away. However, Davis testified that she and

Boyd left the pool hall parking lot in a 1987 gray Cadillac and

drove to Boyd's mother's house on Oxford Street.

State Trooper T. L. Robinson testified that on November 18,

1998, between 3:00 and 4:00 a.m., he was notified by a police

dispatcher to "be on the lookout" for an older white Cadillac.

Robinson reported to the dispatcher that 10 to 15 minutes

earlier, he had seen a white, 1973 Cadillac Eldorado pass below

a highway ramp on which he was parked.

III. PENALTY PHASE EVIDENCE

During the penalty phase of the trial, the Commonwealth

presented evidence of Lovitt's criminal record. In October

1975, when Lovitt was 11 years old, he was charged with assault

and placed in protective supervision. Also as a juvenile, in

August 1979, Lovitt was committed to the Beaumont Learning

Center of the State Department of Corrections (Beaumont) based

on adjudication of charges of breaking and entering and larceny.

While at Beaumont, Lovitt was disciplined for fighting, assault,

and possessing contraband items. After his release from

Beaumont in 1980, Lovitt was convicted of grand larceny in 1981

and was sentenced to 12 months in jail.

Between 1983 and 1985, Lovitt was convicted of petit

larceny, grand larceny, breaking and entering, and distribution

of marijuana. In 1986, Lovitt was convicted of attempted

11
robbery and was sentenced to a term of imprisonment of from one

to three years. After being released on parole in August 1987,

Lovitt's parole was revoked in August 1988 based, in part, on

additional arrests and his failure to pass certain drug tests.

Lovitt later was convicted of statutory burglary and grand

larceny. While incarcerated on these convictions and the parole

violation, Lovitt was disciplined for damaging property and for

fighting.

In September 1990, Lovitt again was released on parole. In

early 1991, Lovitt was convicted of possession of cocaine, grand

larceny, and burglary. While incarcerated on these charges,

Lovitt was the subject of ten disciplinary actions for offenses

including possession of contraband, disobeying direct orders,

assault, possession of intoxicants, and manufacturing "shank

handles." After being released on parole in October 1996,

Lovitt was convicted in 1997 of possession of marijuana, petit

larceny, unlawful entry, assault and battery, and destruction of

property. Lovitt was on parole at the time of the present

offenses.

In October 1998, Arlington County Police Officer Jerome A.

Lee detained Lovitt in an apartment parking lot in Arlington.

Lovitt had parked his car behind the apartments, appeared to be

very nervous, and consented to a search of his vehicle. Lee

found a long kitchen knife on the floor of the passenger area

12
and a soda can used to smoke crack cocaine in the rear floor

area of the vehicle.

Lovitt presented testimony from his sister, Amanda Jones,

who testified that Lovitt was the oldest of 12 children and that

he helped take care of his younger siblings, although not

"gladly." Lovitt also presented testimony from four deputies

employed by the Arlington County Sheriff's Office, who stated

that Lovitt had not presented any disciplinary problems while

being held in jail on the present charges.

IV. ISSUES PREVIOUSLY DECIDED

On appeal, Lovitt raises certain arguments that we have

resolved in previous decisions. Since we find no reason to

modify our previously expressed views, we reaffirm our earlier

holdings and reject the following arguments:

A. Imposition of the death penalty constitutes cruel and

unusual punishment in violation of the United States

Constitution and the Constitution of Virginia. Rejected in

Johnson v. Commonwealth, 259 Va. 654, 667, 529 S.E.2d 769, 776

(2000); Yarbrough v. Commonwealth, 258 Va. 347, 360 n.2, 519

S.E.2d 602, 607 n.2 (1999); Goins v. Commonwealth, 251 Va. 442,

453, 470 S.E.2d 114, 122, cert. denied, 519 U.S. 887 (1996).

B. The "future dangerousness" aggravating factor is

unconstitutionally vague because (1) it requires jurors to reach

a finding based on the confusing standard of a "probability"

13
"beyond a reasonable doubt;" and (2) the failure to provide jury

instructions regarding the meaning of the term "future

dangerousness" violates the United States Constitution and the

Constitution of Virginia. Rejected in Johnson, 259 Va. at 667,

529 S.E.2d at 776; Walker, 258 Va. at 61, 515 S.E.2d at 569;

Cherrix v. Commonwealth, 257 Va. 292, 299, 513 S.E.2d 642, 647,

cert. denied, ___ U.S. ___, 120 S.Ct. 177 (1999); Williams v.

Commonwealth, 248 Va. 528, 536, 450 S.E.2d 365, 371 (1994),

cert. denied, 515 U.S. 1161 (1995); Smith v. Commonwealth, 219

Va. 455, 476-78, 248 S.E.2d 135, 148-49 (1978), cert. denied,

441 U.S. 967 (1979).

C. The "future dangerousness" aggravating factor

unconstitutionally permits consideration of unadjudicated

conduct. Rejected in Johnson, 259 Va. at 667, 529 S.E.2d at

776; Cherrix, 257 Va. at 299, 513 S.E.2d at 647; Williams, 248

Va. at 536, 450 S.E.2d at 371.

D. Virginia's penalty phase instructions do not adequately

instruct the jury concerning mitigation. Rejected in Buchanan

v. Angelone, 522 U.S. 269, 275-76, (1998); Yarbrough, 258 Va. at

360 n.2, 519 S.E.2d at 607 n.2; Cherrix, 257 Va. at 299, 513

S.E.2d at 647; Swann v. Commonwealth, 247 Va. 222, 228, 441

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

E. The post-verdict review of the death sentence by the

trial court does not satisfy constitutional standards because

14
the trial court may consider hearsay evidence contained in a

pre-sentence report and is not required to set aside the death

sentence upon a showing of good cause. Rejected in Johnson, 259

Va. at 667-68, 529 S.E.2d at 776; Walker, 258 Va. at 61, 515

S.E.2d at 569; Cherrix, 257 Va. at 299-300, 513 S.E.2d at 647;

Breard v. Commonwealth, 248 Va. 68, 76, 445 S.E.2d 670, 675-76,

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

F. The trial court's refusal to permit the defendant to

question prospective jurors individually during voir dire

violates the defendant's constitutional right to a fair and

impartial jury. Rejected in Cherrix, 257 Va. at 300, 513 S.E.2d

at 647; Goins, 251 Va. at 453, 470 S.E.2d at 122; Swann, 247 Va.

at 228, 441 S.E.2d at 200.

G. The trial court's refusal to permit the defendant to

make additional peremptory strikes as an added procedural

safeguard in death penalty cases fails to ensure the defendant's

constitutional rights. Rejected in Walker, 258 Va. at 64, 515

S.E.2d at 571; Clagett v. Commonwealth, 252 Va. 79, 85, 472

S.E.2d 263, 266-67 (1996), cert. denied, 519 U.S. 1122 (1997);

Swann, 247 Va. at 227, 441 S.E.2d at 199.

H. This Court's proportionality review in death penalty

cases, as presently conducted, unconstitutionally denies

defendants meaningful review because this Court fails to give

appropriate consideration to cases in which sentences of life

15
imprisonment are imposed. Rejected in Bailey v. Commonwealth,

259 Va. 723, 740-41, 529 S.E.2d 570, 580-81 (2000).

V. MOOT ISSUE

Lovitt challenges the constitutionality of the Virginia

death penalty statutes on the basis that the aggravating factor

of vileness, as set forth in Code § 19.2-264.4(C), is

unconstitutional both on its face and as applied to his case.

He bases this argument on his assertion that the statutory terms

are unconstitutionally vague. However, we do not address

Lovitt's arguments regarding this issue, because the jury

elected to base his sentence of death only on the "future

dangerousness" predicate. When a death sentence is based solely

on "future dangerousness," all issues related to the "vileness"

predicate are rendered moot. See Swann, 247 Va. at 228 n.2, 441

S.E.2d at 200 n.2; Fisher v. Commonwealth, 236 Va. 403, 414, 374

S.E.2d 46, 53 (1988), cert. denied, 490 U.S. 1028 (1989).

VI. ADDITIONAL CONSTITUTIONAL CHALLENGE

Lovitt argues that the "future dangerousness" aggravator is

unconstitutionally "vague as applied," because this Court has

allowed the language of this aggravating factor to be applied in

an "unfettered" manner in several other of the capital murder

convictions that the Court has upheld on appeal. We find no

merit in this argument, because our determination of the

sufficiency of the evidence of "future dangerousness" in other

16
cases does not provide a basis for reversing the jury's finding

of "future dangerousness" in Lovitt's case. Lovitt's allegation

that the evidence in his case of "future dangerousness" was

insufficient as a matter of law must be determined based on the

facts of his own case. Thus, the application of the "future

dangerousness" predicate in other cases does not affect the

question whether Lovitt's death sentence should be upheld.

VII. JURY SELECTION

Lovitt argues that the trial court abused its discretion in

refusing to strike one juror for cause after she stated with

visible emotion that about ten years earlier, when she was a

student at the University of Florida, five neighbors whom she

did not know were murdered. We disagree with Lovitt's argument.

On appellate review, we give deference to the trial court's

determination whether to exclude a prospective juror, because

the trial court was able to see and hear each member of the

venire respond to the questions posed. Thus, the trial court is

in a superior position to determine whether a juror's responses

during voir dire indicate that the juror would be prevented or

impaired in performing the duties of a juror as required by the

court's instructions and the juror's oath. Vinson v.

Commonwealth, 258 Va. 459, 467, 522 S.E.2d 170, 176 (1999),

cert. denied, ___ U.S. ___, 120 S.Ct. 2226 (2000); Stewart v.

Commonwealth, 245 Va. 222, 234, 427 S.E.2d 394, 402, cert.

17
denied, 510 U.S. 848 (1993). A trial court's decision on this

issue will not be disturbed on appeal absent a showing that the

trial court abused its discretion. Vinson, 258 Va. at 467, 522

S.E.2d at 176; Roach, 251 Va. at 343, 468 S.E.2d at 109.

In conducting our review, we consider the juror's entire

voir dire, not merely isolated statements. Vinson, 258 Va. at

467, 522 S.E.2d at 176; Clagett, 252 Va. at 90, 472 S.E.2d at

269; Mackall v. Commonwealth, 236 Va. 240, 252, 372 S.E.2d 759,

767 (1988), cert. denied, 492 U.S. 925 (1989). In the present

case, the juror was asked whether her experience in Florida

would make it difficult for her to serve as a juror. She

replied, "I think it is something that I would find emotionally

challenging, but at the same time, if I was picked as a juror, I

would be able to do my duty." In response to a question whether

her experience made her predisposed to the death penalty, the

juror stated that the Florida case "has nothing to do with this

case, I'm sure." In addition, the juror responded in the

affirmative when asked whether she could "keep an open mind" in

deciding the case.

The above responses are illustrative of the entire voir

dire of the juror, which contains no indication that the trial

court abused its discretion in accepting her statement that she

could fulfill the duties of a juror in the trial of the case.

Thus, we conclude that the trial court did not abuse its

18
discretion in refusing to strike this juror for cause from the

jury panel.

VII. GUILT PHASE ISSUES

Lovitt argues that the trial court erred when it permitted

Detective Irv Ellman to testify concerning witness Casel Lucas's

reputation for truth and veracity. Lovitt objected to Detective

Ellman's testimony prior to its admission on the grounds of

relevance. When the Commonwealth responded that Detective

Ellman would testify concerning Lucas's reputation for

truthfulness in the police community, and the trial court ruled

that the testimony was admissible, Lovitt made no further

objection. Ellman then testified, as stated above, that he had

known Lucas since 1994, that he knew others in the law

enforcement community who knew Lucas, and that Lucas had a good

reputation in that community for being truthful. 1

After the Commonwealth rested its case and the trial court

denied Lovitt's motion to strike the evidence, Lovitt moved the

court to strike Ellman's testimony on two new grounds. First,

Lovitt argued that the Commonwealth had failed to lay a

foundation for Ellman's testimony and had established only that

Lucas had admitted his involvement in 14 felony offenses.

1
Lovitt does not argue on appeal that the trial court erred
in overruling the objection to Ellman's testimony that he made
on the grounds of relevance. Since Lovitt has abandoned that

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Second, Lovitt asserted that the "police community" was "too

small a group and not a proper group" upon which to base

testimony about Lucas's reputation for truthfulness. The

prosecutor did not object to the timeliness of these new

objections and, after the trial court considered counsel's

arguments, it upheld its earlier ruling that Ellman's testimony

was admissible and denied Lovitt's motion to strike the

testimony. 2

This sequence of events reveals that after the Commonwealth

rested its case, Lovitt presented to the trial court new

challenges to previously admitted evidence. In essence, Lovitt

was requesting that the evidence be reopened so that Ellman's

testimony could be stricken and the jury instructed to disregard

it. Our holdings in Woodson v. Commonwealth, 211 Va. 285, 288,

175 S.E.2d 818, 821 (1970); Poole v. Commonwealth, 211 Va. 258,

260, 176 S.E.2d 821, 823 (1970), make it abundantly clear that

after the Commonwealth has rested its case, it is not error for

the trial court to refuse a new objection that has been raised

regarding previously admitted evidence. Here, the trial court

argument on appeal, we do not consider the merits of that
objection.
2
On brief, Lovitt raises an additional, new argument that
the trial court erred in refusing to strike Detective Ellman's
testimony because it consisted only of Ellman's opinion, which
was based on specific acts. Since Lovitt did not raise this
argument at trial, we do not consider the argument here. Rule
5:25.

20
considered the arguments of counsel and although the court did

not rely on the timing of Lovitt's objections in making its

ruling, the court rejected the objections, thus declining to

reopen the evidence. Accordingly, the result that the trial

court reached was proper under Woodson and Poole. 3

Lovitt next argues that the trial court erred in permitting

a probation officer to testify that Lovitt failed to appear for

an appointment which was scheduled to take place five hours

after the time of the killing. Lovitt also argues that the

trial court erred in admitting into evidence a capias for

Lovitt's arrest, which showed that Lovitt missed a required

court appearance on the day following Dicks's killing. Lovitt

concedes that this evidence of flight is "marginally probative,"

but contends that its prejudicial effect as evidence of prior

bad acts outweighs its probative value. We disagree with

Lovitt's arguments.

Flight by a defendant after the commission of a crime is

probative evidence of guilt of that crime. Clagett, 252 Va. at

93, 472 S.E.2d at 271; Boykins v. Commonwealth, 210 Va. 309,

313-14, 170 S.E.2d 771, 774 (1969). The admission of such

evidence of a potentially prejudicial nature is a matter

submitted to the trial court's sound discretion for a

3
In light of our holding, we need not address the merits of
the reasons given by the trial court underlying its denial of

21
determination whether the probative value of the evidence

outweighs its prejudicial effect. See Orbe v. Commonwealth, 258

Va. 390, 402, 519 S.E.2d 808, 815 (1999), cert. denied, ___ U.S.

___, 120 S.Ct. 1970 (2000); Coe v. Commonwealth, 231 Va. 83, 87,

340 S.E.2d 820, 823 (1986). Here, Lovitt's conduct tended to

prove that immediately after the killing, he sought to avoid any

contact with law enforcement officials and the courts. This

evidence also directly rebutted the assertion of defense counsel

during opening argument that Lovitt did not avoid contact with

the police in the days following the killing. Thus, the trial

court did not abuse its discretion in balancing the probative

value of this evidence against its potential prejudicial effect

that Lovitt had disregarded his probation officer's instructions

and was being sought by the police for failure to appear at a

court hearing of an unspecified nature.

Lovitt next argues that the trial court erred in denying

his motion to strike the capital murder charge on the ground

that the evidence was insufficient as a matter of law. He notes

that José Alvarado, one of two witnesses to the killing, was

unable to identify Lovitt at the preliminary hearing as Dicks's

assailant and, at trial, was only "80% certain" that Lovitt was

the assailant. Lovitt also contends that the testimony

concerning the Cadillac automobile parked in the pool hall lot,

these two new objections.

22
and the fact that Warren Grant's blood and fingerprints were

found on the cash register drawer while Lovitt's were not,

"favor[] Lovitt's innocence." Lovitt also observes that the DNA

found near the handle of the scissors, which failed to exclude

Lovitt as its donor, also failed to exclude Grant. Thus, Lovitt

argues, the totality of the evidence "does not rise to the

'beyond a reasonable doubt' standard." We disagree with

Lovitt's arguments.

The evidence, viewed in the light most favorable to the

Commonwealth, is sufficient to support the jury verdict. As

stated above, the jury received evidence that Lovitt had an

immediate need for money. He had worked at the pool hall, and

he was familiar with the employee work shifts and the location

of cash kept on the premises. Also, he knew that he could pry

open the cash register drawer with a pair of scissors, as he had

done on an earlier occasion. Lovitt was seen at the pool hall

earlier in the evening when he was unsuccessful in his attempt

to obtain money from some people he knew. Later, the bartender

at the pool hall, who did not know Lovitt, noticed that a

pitcher containing some cash was missing from beneath the bar in

an area where a man matching Lovitt's general description had

been standing.

Officer Holland testified that a person matching Lovitt's

general description was in the pool hall about 3:00 a.m.,

23
shortly before the killing. José Alvarado, who witnessed the

killing, testified that he was "80% certain" that Lovitt was

Dicks's assailant.

A pair of scissors belonging to the pool hall was

identified as the murder weapon and was found in the woods that

led from the pool hall to Grant's house. Lovitt could not be

eliminated as a possible source of the DNA found on the murder

weapon.

Grant and his friend, Delores Harris, testified that Lovitt

appeared at Grant's house, which was a short distance from the

pool hall, in the very early morning hours of the day in

question, carrying a cash register drawer that was later

determined to have been taken from the pool hall. After Grant

pried open the drawer, Lovitt divided the money with Grant.

At the time he was arrested, Lovitt volunteered to the

police officer collecting his clothes that he was not wearing

the jacket "when it happened." Lovitt later admitted his

commission of the crime to Casel Lucas. Several aspects of this

confession were corroborated by other evidence, such as the

evidence that Lovitt was unable to open the cash register drawer

at the time of the offense, and evidence that Lovitt fled to

Grant's house after the killing. In addition, there was

evidence corroborating Lucas's statement that Lovitt told him

that he decided to kill Dicks because he could identify Lovitt.

24
Dicks would have been able to identify Lovitt based on his

earlier employment at the pool hall.

Lovitt's attacks on the credibility of Alvarado, Grant,

Harris, Davis, Boyd, and Lucas were resolved against Lovitt by

the jury's determination of Lovitt's guilt. Thus, based on the

above-stated evidence, and the reasonable inferences that can be

drawn from the evidence, we conclude that the evidence is

sufficient to support the jury's determination of guilt on the

capital murder charge.

Lovitt next argues that the trial court erred in refusing

to permit Lovitt's counsel to testify after Carol Palmer, a

forensic witness, made a statement during cross-examination that

allegedly was inconsistent with a statement she had made to

Lovitt's counsel prior to trial. Lovitt's counsel requested

that he be allowed to testify that in an earlier telephone

conversation with him, Palmer replied in the affirmative when he

asked her, "[W]ould you expect there to be a blood transfer from

the victim to the perpetrator?" Lovitt asserts that the trial

court abused its discretion in denying his counsel's request to

withdraw from the case and allow his co-counsel to complete

Lovitt's defense.

In response, the Commonwealth contends that Lovitt did not

argue in the trial court that he should be allowed to withdraw

and have his co-counsel continue representing Lovitt. The

25
Commonwealth asserts that, instead, Lovitt's counsel argued that

he should be permitted to testify and then continue to represent

Lovitt along with his co-counsel. We agree with the

Commonwealth's argument.

At the time he asked the court to be allowed to testify

concerning his telephone conversation with Palmer, Lovitt's

counsel did not request to withdraw from his representation of

Lovitt and have co-counsel remain as sole counsel in the case.

Lovitt's counsel asserted only that because "something [came] up

in the middle of the trial that was unexpected and

unanticipated[,] . . . I can testify." Since Lovitt's counsel

did not argue to the trial court that he should be allowed to

withdraw from the case and co-counsel continue Lovitt's

representation, we will not consider that argument on appeal.

Rule 5:25.

VIII. SENTENCING PHASE ISSUES

Lovitt contends that the trial court erred in denying his

request to argue to the jury that he would die in prison if

given a sentence of life imprisonment without the possibility of

parole. We disagree.

There is no evidence in the record to support such an

argument, which is speculative in nature. Moreover, the

argument is incorrect as a matter of law, since prisoners who

have received a sentence of life imprisonment without

26
possibility of parole are not precluded from receiving executive

clemency for crimes they have committed. See Va. Const. art. V,

§ 12. In addition, we observe that the jury was instructed that

the words "imprisonment for life" mean "imprisonment for life

without the possibility of parole." Lovitt was permitted to

argue to the jury that he would not be eligible for parole. In

fact, Lovitt argued that "he can die in prison just because of

the nature of prisons. He can die in there. And we certainly

know that he is not eligible for parole."

Lovitt next contends that the evidence is insufficient to

support the jury's finding of "future dangerousness." Lovitt

argues that his prior burglary, larceny, and narcotics

convictions are not evidence of "future dangerousness," and that

his aggressive behavior while incarcerated never resulted in

criminal charges being brought against him. He also argues

that, since he is ineligible for parole after being convicted of

these offenses, the only society that should be considered in

this case for purposes of "future dangerousness" is prison

society. We disagree with Lovitt's arguments.

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

imposed unless the trier of fact finds one or both of the two

aggravating factors that we have referred to as "future

dangerousness" and "vileness." Roach, 251 Va. at 347, 468

S.E.2d at 111-12; Yeatts v. Commonwealth, 242 Va. 121, 139, 410

27
S.E.2d 254, 265 (1991), cert. denied, 503 U.S. 946 (1992). In

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

that "there is a probability that [Lovitt] would commit criminal

acts of violence that would constitute a continuing serious

threat to society." Code § 19.2-264.2.

This Court has recognized that the facts and circumstances

surrounding a capital murder may be sufficient, standing alone,

to support a finding of "future dangerousness." See Roach, 251

Va. at 348, 468 S.E.2d at 112; Murphy v. Commonwealth, 246 Va.

136, 145, 431 S.E.2d 48, 53, cert. denied, 510 U.S. 928 (1993).

Here, Lovitt murdered Dicks, an innocent employee, to facilitate

a robbery and to avoid being identified as its perpetrator. The

jury was entitled to find that this violent, calculated action

was strong evidence that Lovitt is a dangerous person who would

commit future criminal acts of violence.

In addition, the jury was entitled to consider Lovitt's

extensive criminal record, which we have recited in detail.

This record includes an attempted robbery conviction and three

burglary convictions. As we observed in Yeatts:

Burglary laws are based primarily upon a recognition
of the dangers to personal safety created by the usual
burglary situation–the danger that the intruder will
harm the occupants in attempting to perpetrate the
intended crime or to escape and the danger that the
occupants will in anger or panic react violently to
the invasion, thereby inviting more violence.

28
242 Va. at 140, 410 S.E.2d at 266 (citations omitted). Thus,

Lovitt's prior burglary convictions, in addition to his

attempted robbery conviction, were relevant evidence in

determining his "future dangerousness."

The jury also heard evidence that Lovitt committed several

criminal offenses while released in the community on supervised

probation or parole. This evidence demonstrated that Lovitt did

not refrain from further serious criminal activity, even when

the consequences of such criminal behavior would be especially

severe.

We find no merit in Lovitt's argument that the only

relevant "society" for the jury's consideration of his "future

dangerousness" was prison society. Code § 19.2-264.2 requires

that the jury make a factual determination whether the defendant

"would commit criminal acts of violence that would constitute a

continuing serious threat to society." The statute does not

limit this consideration to "prison society" when a defendant is

ineligible for parole, and we decline Lovitt's effective request

that we rewrite the statute to restrict its scope. Thus, we

conclude that the evidence of the present offenses and of

Lovitt's prior criminal behavior, including the evidence of his

behavior while incarcerated for earlier offenses, is sufficient

to support the jury's finding of "future dangerousness."

IX. SENTENCE REVIEW

29
 Passion and Prejudice

Under Code § 17.1-313(C), we review the death sentence

imposed on Lovitt to determine whether it (1) was imposed under

the influence of passion, prejudice, or any other arbitrary

factor; or (2) is excessive or disproportionate to the penalty

imposed in similar cases, considering both the crime and the

defendant. Lovitt argues that his sentence was based on

passion, prejudice, and arbitrariness because, during the trial,

Dicks's family sat in the three rows of seats closest to the

jury box. Lovitt contends that the jury showed its prejudice by

the contents of two notes that it sent to the judge on the

second day of the guilt phase trial, and by the fact that it

reached its verdict in the guilt phase trial in one and one-half

hours. We find no merit in this argument.

In the first note at issue, the jury asked whether Lovitt

had been identified before the trial in a police "lineup."

While the trial court and counsel were discussing this question,

the jury sent the judge a second note, requesting that all

personal information about the jurors be removed from the public

record in the case. In response to these notes, the trial court

cautioned the jury to restrict its consideration of the case to

the evidence presented. The court also informed the jury that

the court would not tolerate any interference or intimidation

from any outside source, and that any such conduct would be

30
quickly addressed. In response to questioning by the court, the

jurors indicated that no outside source had attempted to

influence them, and that they had not discussed the case with

anyone else.

These notes from the jury do not provide any indication of

passion or prejudice, and the trial court's responses to them

were proper. In addition, the record does not show that the

jurors knew the identity of the spectators who sat in the seats

nearest the jury box. Moreover, the length of time that the

jury deliberated in the guilt phase trial did not indicate

passion or prejudice on its part and, if anything, reflected the

overwhelming nature of the evidence presented against Lovitt.

Excessiveness and Proportionality

Lovitt argues that the trial court erred when it denied his

motion to commute the sentence to life imprisonment "based upon

a proportionality review of similar cases." We find no merit in

this argument.

Initially, we observe that the death penalty statutes do

not require a proportionality review by the trial court.

Instead, Code § 19.2-264.5 directs that "[a]fter consideration

of the [post-sentence] report, and upon good cause shown, the

[trial] court may set aside the sentence of death and impose a

sentence of imprisonment for life." This provision permits the

capital murder defendant the same opportunity as any other

31
criminal defendant, under a precise and unambiguous standard, to

request that the trial court alter the jury's verdict. Bassett

v. Commonwealth, 222 Va. 844, 860, 284 S.E.2d 844, 854 (1981),

cert. denied, 456 U.S. 938 (1982). Here, after hearing argument

from Lovitt's counsel comparing the facts and circumstances of

Lovitt's case and the sentences imposed, with the facts and

circumstances of other capital murder cases and the sentences

imposed in those cases, the trial court declined to exercise its

discretionary authority under the statute to impose a sentence

of life imprisonment. Based on the record before us, we

conclude that the trial court did not abuse its discretion in

declining to alter the sentence fixed by the jury.

In conducting this Court's 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." Johnson,

259 Va. at 683; 529 S.E.2d at 786 (quoting Jenkins v.

Commonwealth, 244 Va. 445, 461, 423 S.E.2d 360, 371 (1992),

cert. denied, 507 U.S. 1036 (1993)). We have compared the

record in the present case with the records of other capital

murder cases, including those in which a sentence of life

imprisonment was imposed. We also have examined the records of

all capital cases reviewed by this Court pursuant to

Code § 17.1-313(E). Since the jury imposed the death sentence

32
based on the "future dangerousness" predicate, we give

particular consideration to other capital murder cases in which

the death penalty was obtained under that predicate.

Lovitt has directed our attention to certain capital murder

convictions in which sentences of life imprisonment were

imposed. However, under our proportionality review, we must

consider whether juries generally impose a death sentence for

conduct similar to that of the defendant, not whether certain

juries have declined to impose the death sentence in other

particular cases. Jackson v. Commonwealth, 255 Va. 625, 636,

499 S.E.2d 538, 545 (1998), cert. denied, 525 U.S. 1067 (1999);

King v. Commonwealth, 243 Va. 353, 371, 416 S.E.2d 669, 679,

cert. denied, 506 U.S. 957 (1992); Stamper v. Commonwealth, 220

Va. 260, 283-84, 257 S.E.2d 808, 824 (1979), cert. denied, 445

U.S. 972 (1980).

The record shows that Lovitt planned to commit the offense

of robbery and murdered Dicks for the sole reason of eliminating

any witness to the robbery. The multiple stab wounds inflicted

on Dicks reflect an escalation of the violent and dangerous

criminal activity detailed in Lovitt's prior criminal record.

As stated above, Lovitt's prior record includes numerous felony

convictions, including a conviction for attempted robbery and

multiple convictions on burglary charges. Lovitt committed

several of these prior crimes while on supervised probation or

33
parole, which is further evidence of his continuing failure to

refrain from serious criminal conduct.

We observe that juries in this Commonwealth, with some

exceptions, generally have imposed the death sentence for

convictions of capital murder based on a finding of "future

dangerousness" in which the underlying predicate crime was

robbery. See, e.g., Jackson, 255 Va. 625, 499 S.E.2d 538;

Roach, 251 Va. 324, 468 S.E.2d 98, Chandler v. Commonwealth, 249

Va. 270, 455 S.E.2d 219, cert. denied, 516 U.S. 889 (1995);

Joseph v. Commonwealth, 249 Va. 78, 452 S.E.2d 862, cert.

denied, 516 U.S. 876 (1995); Swann, 247 Va. 222, 441 S.E.2d 195;

Chichester v. Commonwealth, 248 Va. 311, 448 S.E.2d 638 (1994),

cert. denied, 513 U.S. 1166 (1995); Dubois v. Commonwealth, 246

Va. 260, 435 S.E.2d 636 (1993), cert. denied, 511 U.S. 1012

(1994); Yeatts, 242 Va. 121, 410 S.E.2d 254; Savino v.

Commonwealth, 239 Va. 534, 391 S.E.2d 276, cert. denied, 498

U.S. 882 (1990); Mackall, 236 Va. 240, 372 S.E.2d 759; Townes v.

Commonwealth, 234 Va. 307, 362 S.E.2d 650 (1987), cert. denied,

485 U.S. 971 (1988). Based on this review, we hold that

Lovitt's death sentence is neither excessive nor

disproportionate to penalties imposed by other sentencing bodies

in the Commonwealth for comparable crimes, considering both the

crime and the defendant.

X. CONCLUSION

34
 We find no reversible error in the judgments of the trial

court. Having reviewed Lovitt's death sentence pursuant to Code

§ 17.1-313, we decline to commute the sentence of death.

Accordingly, we will affirm the trial court's judgments.

Record No. 001015 –- Affirmed.
Record No. 001420 –- Affirmed.

35