Present: All the Justices
THOMAS ALEXANDER PORTER
OPINION BY
v. Record Nos. 071928 JUSTICE G. STEVEN AGEE
& 071929 June 6, 2008
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Charles D. Griffith, Jr., Judge
In this appeal, we review the capital murder
conviction and sentence of death imposed upon Thomas
Alexander Porter in the Circuit Court of the City of
Norfolk. In the first stage of a bifurcated trial
conducted under Code § 19.2-264.3, a jury convicted Porter
of capital murder, use of a firearm in the commission of a
felony, and grand larceny. 1 In the penalty phase of the
trial, the jury found the aggravating factor of future
dangerousness and fixed Porter’s sentence at death for the
capital murder charge and a combined twenty-two years for
the two other charges. The circuit court sentenced Porter
in accordance with the jury’s verdicts and entered final
judgment.
1
Porter was also charged with one count of possessing
a firearm as a previously convicted felon in violation of
Code § 18.2-308.2. An order of nolle prosequi as to that
charge was entered on July 16, 2007.
We review the circuit court’s judgment and death
sentence pursuant to Code § 17.1-313(A). 2 After mature
consideration of Porter’s assignments of error, the record,
and the arguments of counsel, we find no error in the
judgment of the circuit court and will affirm that
judgment, including the sentence of death.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
Under well-settled principles of appellate review, we
consider the evidence presented at trial in the light most
favorable to the Commonwealth, the prevailing party in the
circuit court. Gray v. Commonwealth, 274 Va. 290, 295, 645
S.E.2d 448, 452 (2007), cert. denied, ___ U.S. ___, 128
S.Ct. 1111 (2008); Juniper v. Commonwealth, 271 Va. 362,
376, 626 S.E.2d 383, 393, cert. denied, ___ U.S. ___, 127
S.Ct. 397 (2006).
A. FACTS ADDUCED AT TRIAL 3
At approximately 3:30 p.m. on October 28, 2005, Porter
and Reginald Copeland traveled in Porter’s Jeep to the Park
Place apartment complex located at 2715 DeBree Avenue in
the City of Norfolk to inquire about purchasing marijuana.
2
Porter has not assigned error to his convictions on
the non-capital offenses. Accordingly, those convictions
are final and are not before us in this appeal.
3
Certain facts relating to the specific assignments of
error will be stated or more fully described in the later
discussion of a particular assignment of error.
2
Porter was carrying a concealed, nine-millimeter Jennings
semi-automatic pistol. The two men entered the apartment
of Valorie Arrington, where several people were present,
including Valorie and her daughters, Latoria and Latifa;
Valorie’s cousins, Monica Dickens and April Phillips;
Valorie’s sister, Monique Arrington, also known as Monika;
and Monique’s daughter, Lamia.
Once inside, Porter began arguing with the women,
brandishing his gun, and threatening that he might shoot
one of them if provoked. Copeland left the residence, but
Porter remained behind, locking the door so Copeland could
not reenter. After being locked out of Valorie’s
apartment, Copeland walked away from the apartment complex
and happened upon three uniformed police officers a block
away, including Norfolk Police Officer Stanley Reaves.
Copeland reported Porter’s behavior to Officer Reaves and
directed him to Valorie’s apartment.
Officer Reaves drove his police cruiser to the front
curb of the apartment building, parked the car, and walked
across the grass towards the sidewalk leading from the
street to the apartment door. As Officer Reaves approached
the apartment, Porter left Valorie’s apartment and began
walking away. Officer Reaves confronted Porter, grabbed
Porter’s left arm, and instructed him to take his hands out
3
of his pockets. Porter then drew his concealed weapon from
his pocket and fired three times, killing Officer Reaves.
Porter took Officer Reaves’ service pistol and then fled in
his Jeep.
Several eyewitnesses, along with Porter, testified at
trial and provided various descriptions of the events
leading up to and immediately following Officer Reaves’
death. Copeland testified that he was standing in a
parking lot on the afternoon of Officer Reaves’ death when
Porter approached him. They decided to get into a Jeep
Grand Cherokee that Porter was driving and go to Valorie’s
apartment to purchase marijuana.
Copeland testified that he and Porter entered
Valorie’s apartment because she was Copeland’s friend and
because he had smoked marijuana with her before. Once
inside, they met Valorie and the other women who informed
Copeland and Porter that they did not have any marijuana.
The group then talked about various subjects, including a
child’s birthday party, but at some point in the
conversation Porter began arguing with one of the women.
Copeland “didn’t know what to do” but left the
apartment and “ran down [to the next block] and told
[Officer Reaves, ‘]Look, there is a man up in the house
with some girls, and he shouldn’t be in there.’” Copeland
4
described the apartment building to Officer Reaves, and
Officer Reaves drove his patrol car to the building with
Copeland “running behind” the vehicle. Officer Reaves
arrived at the building before Copeland, and as Copeland
approached he saw “Officer Reaves in the car and Porter was
coming out [of] the building.” Copeland identified Porter
to Officer Reaves, and Officer Reaves instructed Copeland
to stay back and then approached Porter. Moments later,
Porter and Officer Reaves disappeared from Copeland’s
viewpoint behind a parked van, but Copeland “heard gunshots
and started running,” and he “ran and told the [other]
officers what happened.”
Melvin Spruill, Jr., owner of the apartment complex,
testified that he was picking up trash in the yard, when he
“noticed a police car sitting on the corner” parked
directly behind his van. Spruill entered his van and was
preparing to leave when he noticed Officer Reaves talking
with Porter. “[O]ut of the corner of [his] eye” Spruill
saw Porter’s hands drop down, raise up again with a gun,
and then he heard a gunshot. Spruill ducked and “heard
another shot . . . [, m]aybe two shots,” and then saw
Porter run away. Spruill testified that he never saw
Officer Reaves holding a gun, nor did he hear arguing
between the two men before Porter shot Officer Reaves.
5
Simone Coleman testified that she was walking on the
sidewalk near the apartment complex when she saw Officer
Reaves’ patrol car arrive. Coleman watched as Officer
Reaves stepped out of his patrol car, and she saw Porter
walking across the grass from the apartment, coming to
“within a few feet” of her. She testified that Porter’s
hands were “[i]n his pockets” as Coleman passed by, and she
“was looking back” to watch the confrontation between
Officer Reaves and Porter. Coleman heard Officer Reaves
instruct Porter to “take his hands out of his pockets,” and
then Officer Reaves “grabbed Mr. Porter’s left arm.”
Coleman testified that Officer Reaves “didn’t have a gun
out,” and that Porter, in response to Officer Reaves
grabbing his arm, pulled a gun out of his pocket, pointed
the gun at Officer Reaves’ head, and pulled the trigger.
Coleman watched Officer Reaves collapse to the ground, and
she testified that Porter then shot Officer Reaves two more
times. Coleman identified Porter in court as the man who
killed Officer Reaves.
Selethia Anderson, who lived across the street from
the apartment complex, was sitting on her front porch when
she saw Officer Reaves arrive. Anderson testified that she
watched Officer Reaves exit his vehicle and walk towards
Porter as Porter was leaving the apartment complex. She
6
described how Officer Reaves confronted Porter and “used
his right hand to grab [Porter’s] left hand,” and then
Porter immediately reached into his hoodie pocket with his
right hand, pulled out a gun, and shot Officer Reaves in
the head. Anderson testified that after Officer Reaves
fell, Porter shot him twice more “between the back of the
head and neck.” According to Anderson, Porter knelt over
Officer Reaves’ body after the shooting, and when Porter
left the scene, he was carrying a “bigger gun” than the one
he had used to shoot Officer Reaves. Anderson identified
Porter in court as the man who shot Officer Reaves.
Valorie testified that she was in her apartment that
afternoon when Copeland arrived with Porter. According to
Valorie, the two men “came for some marijuana” but the
women did not have any, and asked the men to leave.
Copeland agreed to leave, but Porter stayed inside, locked
the door and kept Copeland outside. Valorie testified that
she felt scared because Porter had “locked us in our own
house.” Valorie asked Porter why his hands were in his
sweatshirt pocket, and Porter responded by pulling out his
gun and asking, “[s]o are you going to give me the bag of
weed or what?” Valorie testified that she uttered a
prayer, and when Porter realized she was a Muslim, he told
the women that they were “lucky” and he put away the gun.
7
When Porter realized a police car had arrived, he left the
apartment and ran “like some horses going down the stairs.”
Moments later, Valorie heard gunshots.
Latoria’s testimony confirmed that Porter entered
Valorie’s apartment along with Copeland, and that Copeland
left the apartment but Porter remained inside, locking the
door. Latoria testified that Porter threatened that he
would “get to clapping” if any of the women made a sudden
move, and she explained that “clapping” was a term for
“shooting.” She testified that she looked out the window,
noticed Officer Reaves arrive in his patrol car, and asked,
“Why is Reggie [Copeland] talking to the police officer?”
Latoria testified that Porter then immediately exited the
apartment, and she watched through the window as Officer
Reaves approached Porter, grabbed Porter’s arm, and then
Porter “reach[ed] into his right pocket and he pull[ed] out
his gun and he shot him.” Latoria testified that Officer
Reaves did not have a weapon drawn when Porter shot him.
Dickens’ testimony confirmed Valorie’s and Latoria’s
accounts of the confrontation in Valorie’s apartment
between Porter and the women. Dickens testified that
Porter threatened to “get to clapping” if any of the women
began “talking smack.” Dickens explained that she “was
just real afraid right then for my whole family.” Dickens
8
testified that Porter left the apartment immediately when
he learned that a police car had arrived, and she went to
the window to watch what was happening. Dickens watched
Officer Reaves approach Porter, grab Porter’s arm, and then
Porter “put the gun to his head” and shot Officer Reaves. 4
Monika also testified that Porter entered Valorie’s
apartment with Copeland but stayed inside and locked the
door after Copeland left. Monika confirmed that Porter
threatened to “get it clapping in here with all y’all” and
explained that “‘[c]lapping’ means you shoot somebody.”
Monika testified that when Porter learned that a police
vehicle had arrived outside, he left the apartment
immediately and began walking away. Monika testified that
she watched out the window as “[t]he police officer grabbed
Porter’s arm,” and Porter “pulled the gun out of his pocket
and put it to [Officer Reaves’] forehead,” and pulled the
trigger. Monika testified that Officer Reaves “never drew
his weapon. He got out of his car and walked over to
Porter as if he just wanted to talk to him and that was
it.”
Robert Vontoure, a Navy seaman who lived across the
street from where the shooting occurred, testified that he
4
Dickens was never questioned as to whether she saw
Officer Reaves draw his weapon.
9
arrived home from work and noticed a Jeep which he did not
recognize parked outside his home. Vontoure explained that
he was in his home, “sitting there watching TV and . . .
heard gunshots.” Vontoure looked outside the window “and
saw a gentleman coming running across our lawn, jump into
the Jeep and leave.” Vontoure identified Porter in court
as the man who fled the scene in the Jeep vehicle.
After killing Officer Reaves, Porter traveled to New
York City where he was apprehended one month later in White
Plains, New York. The murder weapon was found in his
possession at the time of his arrest. Officer Reaves’ gun
was eventually located in Yonkers, New York.
The autopsy report revealed that Officer Reaves
suffered three close-range wounds to his head: one to the
forehead, one to the left back of the head, and a flesh
wound near the right ear. “The cause of death was two
separate close range gunshot wounds to the head.”
Porter did not dispute that he shot Officer Reaves,
but his version of the events differed from that of the
eyewitnesses. Porter testified in his own defense that he
drove to Valorie’s apartment with Copeland “[t]o get a bag
of marijuana” because Copeland was his “means of getting
marijuana.” Porter parked the vehicle outside the
apartment, and he “grabbed the gun out of the glove
10
compartment box” before leaving the vehicle “[b]ecause the
area . . . is a bad area.” Porter testified that he gave
Copeland $10 to purchase marijuana, and that he waited
outside while Copeland went inside to make the purchase.
Porter testified that after a few minutes had passed,
Copeland emerged from an upstairs apartment and invited him
inside. Porter confirmed that Copeland left the apartment,
but Porter denied locking the door and keeping Copeland
outside. Porter also denied brandishing his gun inside the
apartment or making a statement about shooting any of the
women. Porter claimed that he left the apartment when he
learned from the women that Copeland had not paid them for
marijuana, and he denied that any of the women knew about
Officer Reaves’ arrival because “[w]asn’t nobody even
looking out the window.”
Porter testified that he left the apartment and was
walking to his vehicle “when Officer Reaves stepped in
front of me and grabbed me.” Porter and his counsel then
had the following exchange:
Q. Did anything else happen when he did that?
A. Yes. I seen him pulling his gun.
Q. What do you mean, you saw him pulling his
gun?
A. Well, when he grabbed me with his left arm
on my left arm, we were still standing face to
11
face. I seen him pulling his gun. That’s when I
put my hands up in the air and backed up, looking
at him, like, “What [are] you doing?”
Q. You just described that you put your hands
up in the air?
A. Yes.
Q. And at that point, what happened?
A. Well, I got my hands in the air when he
finally gets the gun out and point it at me. I
take my hands down and pull my gun and started
shooting.
Q. Why did you do that, Mr. Porter?
A. Because I was scared. I thought he was
going to kill me because he looked angry at the
time, so I was just worried for my safety.
Porter testified on direct examination that he could not
remember how many times he pulled the trigger, but after he
shot Officer Reaves, he bent down, picked up Officer
Reaves’ gun and ran. Porter explained that he left the
scene because he “was scared” because he realized he “just
killed an officer.”
Porter testified repeatedly on cross-examination that
he “never wanted to kill anybody” but he also admitted that
he “pulled out the gun” and “shot [Officer Reaves] in the
forehead.” Porter and opposing counsel had this exchange
on cross-examination:
Q. You meant to hit Stanley Reaves with a
bullet, didn’t you?
12
A. Yes, sir.
Q. All right. And you took aim – therefore,
you took aim at him, correct?
A. Yes, sir.
Q. You took aim at a part of his body, correct?
A. Yes, sir.
Q. And the part of his body that you took aim
at and then before pulling the trigger from less
than six inches away was directly into his
forehead, correct?
A. Yes, sir.
. . . .
Q. And you agree that you knew you were aiming
at his head, correct?
A. Yes, sir.
Porter also had this exchange on cross-examination:
Q. You admit that you . . . pulled your gun
out?
A. Yes, sir.
Q. And that you shot him in the head?
A. Yes, sir.
Q. You admit that you stole his gun?
A. Yes, sir.
Q. So according to your version of events, you
claim that Officer Reaves pulled his gun,
correct?
A. Yes.
13
Q. And the only thing about the crime that’s
alleged you committed, the capital murder of
Officer Stanley Reaves, using a gun to commit
that murder and stealing Officer Reaves’ gun, the
only part of the crime that we’re here that
you’re on trial for that you dispute, really, is
the reason why you shot Officer Reaves; is that
correct?
A. Yes.
B. PROCEEDINGS BEFORE AND DURING TRIAL
Porter filed a motion before trial for a change of
venue, to which the Commonwealth consented. The circuit
court, Judge Charles D. Griffith presiding, entered an
order granting the motion and a subsequent order “that the
trial of the above referenced case be transferred to the
Circuit Court of the Fourth Judicial Circuit located in
Arlington, Virginia.” The circuit court also granted
Porter’s motion to appoint William J. Stejskal, Ph.D., as a
mitigation expert “to evaluate the Defendant and to assist
the defense in accordance with the provisions of Code
§ 19.2-264.3:1.” Similarly, the circuit court granted
Porter’s motion and appointed Bernice Anne Marcopulos,
Ph.D., ABPP-Cn, as a clinical neuropsychologist expert to
assist the defense.
The Commonwealth filed a motion in limine requesting
that evidence of Porter’s prior felony convictions be
admissible during the guilt stage of the trial. The
14
Commonwealth requested to present the evidence that Porter
“knew he [Porter] was a convicted felon who faced the
prospect of being sent to prison for five (5) years should
Officer Stanley Reaves . . . have discovered the defendant
to have been in possession of a firearm while a felon.”
Over Porter’s objection, the circuit court granted the
Commonwealth’s motion permitting the introduction of
evidence during the trial that Porter was a “convicted
violent felon.”
On January 5, 2007, Porter filed a “Motion for
Appointment of Expert on Prison Risk Assessment and to
Introduce Evidence on Prison Violence and Security”
(“Prison Expert Motion”), requesting that the circuit court
appoint Dr. Mark Cunningham as “an expert on the assessment
of the risk of violence by prison inmates and, in
particular, the risk of future dangerousness posed by the
Defendant if incarcerated in a Virginia penitentiary for
life.” The court heard arguments on the motion and
determined that the other experts already appointed “are
going to be able to talk about [Porter's] background, his
social history and things relating to that." The circuit
court noted that this Court “has consistently upheld the
denial of use of public funds for such an expert, as it’s
not considered to be . . . proper mitigation evidence;
15
therefore not relevant to capital sentencing” and denied
the motion. Porter also filed a motion challenging the
constitutionality of Virginia’s execution protocols for
lethal injection and electrocution, which the court denied.
Porter’s trial, with Judge Griffith presiding,
commenced in Arlington County on February 26, 2007, and
continued through March 14, 2007. On the afternoon of
March 2, 2007, Porter objected to the position of two
deputies who had been standing about four feet behind him,
arguing that their presence standing, as opposed to
sitting, prejudiced the jury. Porter subsequently filed a
written motion and memorandum in support challenging the
courtroom security arrangement. After hearing Porter’s
motion, the circuit court noted that Porter had previously
resisted deputies’ instructions while in custody and had
tampered with his restraints. The court found that sitting
would reduce the deputies’ field of vision, and declined to
order them to be seated. Porter later raised the issue for
a third time and moved for a mistrial, which the court
denied.
Upon presentation of all the evidence at the guilt
stage, the parties argued jury instructions. Porter
proposed a “second-degree murder instruction directly out
of the model jury instructions” based on evidence that
16
Porter shot Officer Reaves “in rapid succession, boom,
boom, boom,” and “that this act was not premeditated.” The
Commonwealth argued that the court should refuse the
second-degree murder instruction because Porter’s “own
testimony is that he willfully and purposely and with
deliberation pulled the gun out and aimed it at Officer
Reaves and fired it.” The court denied Porter’s requested
instruction.
C. PENALTY PHASE
During the penalty stage of the proceedings, the
Commonwealth presented evidence in aggravation, which
included Porter’s prior convictions of misdemeanor carrying
a concealed weapon in 1994, felony robbery and use of a
firearm during the commission of a felony in 1994,
misdemeanor disturbing the peace, misdemeanor assault and
battery and misdemeanor threatening a police officer and
resisting arrest in 1996, felony possession of heroin,
felony possession of a firearm with drugs, and felony
possession of a firearm by a convicted felon in 1997,
misdemeanor assault and battery in 1997, and misdemeanor
obstruction of justice in 2005. The Commonwealth presented
evidence of several incidents while Porter was
incarcerated, including altercations between Porter, fellow
inmates, and prison guards. The Commonwealth also
17
introduced audiotapes of portions of two telephone
conversations between Porter and an unidentified female
recorded during Porter’s incarceration, which the
Commonwealth introduced because they “are directly relevant
to the issue of the defendant’s lack of remorse” and
included Porter bragging that he was a “good shot.”
The Commonwealth also introduced the testimony of
Officer Reaves’ wife and sister, and each described the
devastating impact of Officer Reaves’ death upon his
extended family. Porter presented mitigation evidence
which included testimony of his mother and sister as to his
childhood, family life and educational background.
The jury’s verdict found “unanimously and beyond a
reasonable doubt, after consideration of his history and
background, that there is a probability that he . . . would
commit criminal acts of violence that would constitute a
continuing serious threat to society,” and sentenced Porter
to death. After receipt of the presentence report, the
circuit court confirmed the jury’s verdict and sentenced
Porter to death for the capital murder of Officer Reaves.
II. ANALYSIS
A. ABANDONED ASSIGNMENTS OF ERROR
Prior to filing his opening brief, Porter submitted a
list of twenty-one assignments of error in accord with Rule
18
5:22(b). However, only nine of those assignments of error
have been briefed and argued by Porter. 5 Accordingly, the
other twelve assignments of error have been abandoned and
will not be considered in this opinion. Rule 5:17(c); see
also Teleguz v. Commonwealth, 273 Va. 458, 471, 643 S.E.2d
708, 717 (2007). In this opinion, we will refer to the
nine assignments of error as numbered in Porter’s Brief of
Appellant.
B. JURISDICTION UPON TRANSFER
Before addressing Porter’s assignments of error, we
first consider an issue raised sua sponte by this Court and
addressed by the parties in supplemental briefs and
argument. Based on our review of the record, we inquired
whether the transfer of Porter’s trial to Arlington (and
the subsequent transfer back to Norfolk after the jury’s
verdicts) created issues of either subject matter or
territorial jurisdiction that would affect the judgments
rendered by the circuit court.
Well in advance of trial, Porter filed a motion in the
Circuit Court of the City of Norfolk requesting a change of
venue and to which the Commonwealth agreed. The circuit
5
As numbered in Porter’s initial assignments of error,
Porter has failed to present any brief or argument with
respect to assignments of error 1, 2, 3, 4, 10, 11, 12, 14,
15, 18, 19, and 20.
19
court then entered an order on September 13, 2006, which
granted a “change of venue” but did not specify a new
location for trial. On October 2, 2006, the circuit court
entered another order which “orders that the trial of the
above-referenced case be transferred to the circuit court
of the Fourth Judicial Circuit located in Arlington,
Virginia.” The Circuit Court of the County of Arlington
(“Arlington”) is the Seventeenth Judicial Circuit. The
Fourth Judicial Circuit is limited to the City of Norfolk
(“Norfolk”). It is unclear from the circuit court’s order
whether it was transferring the place of trial with the
Norfolk Circuit Court sitting in Arlington or whether it
was intended that the trial be conducted in Arlington as a
trial in that circuit. Subsequent to these orders, a
number of additional orders were entered in Norfolk under
the caption of the Norfolk Circuit Court; 6 none of these
orders related to the change of venue.
6
These comprise 11 orders, including: an order
entered October 23, 2006, denying Porter’s motion to quash
a subpoena duces tecum and granting a motion in limine by
the Commonwealth; an order for scientific investigation
also entered October 23, 2006; an order entered November 3,
2006, granting funding for defense counsel’s and Porter’s
witnesses’ hotel accommodations in Arlington; an order
entered January 8, 2007, appointing Porter’s
neuropsychologist; an order entered January 16, 2007,
granting Porter’s motion for additional neuropsychological
evaluation but denying his motions to distribute a jury
questionnaire, to suppress, and to allow cameras in the
20
Porter’s trial began in Arlington, with Judge Griffith
sitting as the trial judge, on February 26, 2007. A series
of “felony trial orders” were entered, all with the caption
“In the Circuit Court of the County of Arlington,” and
reflecting the trial proceedings from February 26 to March
14. However, all these orders were entered on the same
date, July 13, 2007, on stationery of the Clerk of the
Circuit Court of Norfolk. 7
The felony trial orders recited the trial proceedings
on the respective dates and none were endorsed by counsel.
courtroom; an order denying Porter’s motion to prohibit law
enforcement spectators from wearing their uniforms in the
gallery also entered January 16, 2007; three orders for the
transportation of witnesses in custody entered January 18
and February 22, 2007; an order entered February 13, 2007,
granting Porter’s motion for the appointment of a qualified
mental health expert; and an order entered February 16,
2007, denying Porter’s motion to declare the death penalty
unconstitutional, taking under advisement his motion to
enjoin the Commonwealth from conducting lethal injections,
and granting his proposed voir dire questions.
7
These comprise 13 orders, dated February 26 through
28; March 1 and 2; March 5 through 9; and March 12 through
14, 2007. Each order summarizes that day’s trial
proceedings and all but four are unremarkable. The order
dated February 26 recounts Porter’s arraignment and the
voir dire and empanelling of the jury. The order dated
March 7 recounts the jury’s verdict of guilty on the
charges of capital murder, use of a firearm in the
commission of a felony, and grand larceny. The order dated
March 8 recounts the jury’s sentencing recommendation on
the charges of use of a firearm in the commission of a
felony and grand larceny. The order dated March 14
recounts the jury’s recommendation of the death sentence on
the charge of capital murder and continues proceedings to
the Circuit Court of Norfolk on July 16.
21
These orders included an order of March 7, 2007, which set
out the jury’s verdict of guilty on the charge of capital
murder as well as a March 14, 2007, order reciting the
jury’s sentence of death. In that same March 14, 2007,
order, the circuit court confirmed the jury verdict and
found Porter guilty of capital murder, but also granted his
motion “to refer this matter to the Probation Office for
the Circuit Court of Norfolk, Virginia” and continued the
case to July 16, 2007 “in the Circuit Court of the City of
Norfolk.” All remaining orders in the record reflect the
caption of the Circuit Court of the City of Norfolk
including the July 18, 2007 order sentencing Porter to
death.
At no place does the record reflect that Porter
questioned or inquired into the circuit court’s authority
to sit in Arlington, to try the case in Arlington, or to
undertake any of the later proceedings in Norfolk. More
importantly, Porter has never objected to any defect, real
or imagined, relating to the circuit court’s jurisdiction
or authority to act in either Arlington or Norfolk. In
fact, during the course of the trial in Arlington, Porter
filed five motions captioned “In the Circuit Court of
22
Norfolk County [sic] (sitting in Arlington County).” 8 There
can be no question that Porter was fully cognizant of, and
actively participated in, a trial in Arlington pursuant to
his motion to change venue, which he knew was being
conducted by the same circuit court judge who began (and
concluded) the case in Norfolk.
The record does not contain an order under Code
§ 17.1-105, or otherwise, designating Judge Griffith to sit
in the Circuit Court of Arlington County. The record also
does not contain an order, as would appear to be required
by Code § 19.2-253, whereby the Clerk of the Circuit Court
of the City of Norfolk transmitted the record in Porter’s
case to the Clerk of the Circuit Court of Arlington County
so that “such court shall proceed with the case as if the
prosecution had been originally therein.”
With this factual background in mind, Porter now
argues in response to our inquiry that the judgments of
conviction and sentence are void because “the provisions of
§ 17.1-105 are mandatory and limit a court’s otherwise
rightful exercise of its subject matter jurisdiction.”
Porter cites our decision in Moore v. Commonwealth, 259 Va.
8
These comprise Porter’s motion for relief from
excessive in-court security, with accompanying memorandum
in support, and four memoranda in support of his motions
requesting jury instructions.
23
431, 527 S.E.2d 406 (2000) to support his argument. The
Commonwealth responds by noting that Code § 17.1-513 grants
subject matter jurisdiction in felony cases to all circuit
courts and argues the Norfolk Circuit Court was never
divested of that authority. Consequently, the Commonwealth
concludes the orders of the circuit court could not be
void, but at most voidable, and that Porter has waived any
objections to voidable orders.
Upon consideration of the arguments, briefs and our
precedent, we conclude that a lack of subject matter
jurisdiction is not implicated in this case and that any
irregularities as to the circuit court’s authority raised
at most an issue of territorial jurisdiction, which was
waived by Porter’s failure to timely object to any such
defect.
Jurisdiction is a term which can engender much
confusion because it encompasses a variety of separate and
distinct legal concepts. We addressed this topic and
differentiated the categories of jurisdiction in Morrison
v. Bestler, 239 Va. 166, 387 S.E.2d 753 (1990).
A court may lack the requisite “jurisdiction” to
proceed to an adjudication on the merits for a
variety of reasons.
The term jurisdiction embraces several
concepts including subject matter jurisdiction,
which is the authority granted through
24
constitution or statute to adjudicate a class of
cases or controversies; territorial jurisdiction,
that is, authority over persons, things, or
occurrences located in a defined geographic area;
notice jurisdiction, or effective notice to a
party or if the proceeding is in rem seizure of a
res; and “the other conditions of fact must exist
which are demanded by the unwritten or statute
law as the prerequisites of the authority of the
court to proceed to judgment or decree.” Farant
Inv. Corp. v. Francis, 138 Va. 417, 427-28, 122
S.E. 141, 144 (1924).
While these elements are necessary to enable
a court to proceed to a valid judgment, there is
a significant difference between subject matter
jurisdiction and the other “jurisdictional”
elements. Subject matter jurisdiction alone
cannot be waived or conferred on the court by
agreement of the parties. Lucas v. Biller, 204
Va. 309, 313, 130 S.E.2d 582, 585 (1963). A
defect in subject matter jurisdiction cannot be
cured by reissuance of process, passage of time,
or pleading amendment. While a court always has
jurisdiction to determine whether it has subject
matter jurisdiction, a judgment on the merits
made without subject matter jurisdiction is null
and void. Barnes v. American Fert. Co., 144 Va.
692, 705, 130 S.E. 902, 906 (1925). Likewise,
any subsequent proceeding based on such a
defective judgment is void or a nullity. Ferry
Co. v. Commonwealth, 196 Va. 428, 432, 83 S.E.2d
782, 784 (1954).
Even more significant, the lack of subject
matter jurisdiction can be raised at any time in
the proceedings, even for the first time on
appeal by the court sua sponte. Thacker v.
Hubard, 122 Va. 379, 386, 94 S.E. 929, 930
(1918). In contrast, defects in the other
jurisdictional elements generally will be
considered waived unless raised in the pleadings
filed with the trial court and properly preserved
on appeal. Rule 5:25.
One consequence of the non-waivable nature
of the requirement of subject matter jurisdiction
25
is that attempts are sometimes made to
mischaracterize other serious procedural errors
as defects in subject matter jurisdiction to gain
an opportunity for review of matters not
otherwise preserved. See Restatement (Second) of
Judgments, § 11 (1980).
Id. at 169-70, 387 S.E.2d at 755-56.
Our recitation in Morrison reflects the long-standing
distinction between subject matter jurisdiction, which
cannot be granted or waived by the parties and the lack of
which renders an act of the court void, and territorial
jurisdiction or venue. The latter goes to the authority of
the court to act in particular circumstances or places and
is waived if not properly and timely raised. The judgment
of a court which is defective in territorial jurisdiction
or venue is thus only voidable and not void. Id.; Southern
Sand and Gravel Company, Inc. v. Massaponax Sand and Gravel
Corporation, 145 Va. 317, 326, 133 S.E. 812, 814 (1926).
All the circuit courts of the Commonwealth “have
original jurisdiction of all indictments for felonies and
of presentments, informations and indictments for
misdemeanors.” Code § 17.1-513. As we recognized in Garza
v. Commonwealth, 228 Va. 559, 323 S.E.2d 127 (1984), this
statute means what it says. “[A]ll circuit courts have
jurisdiction over all felonies committed in the
Commonwealth.” Id. at 566, 323 S.E.2d at 130. Thus, both
26
the Norfolk Circuit Court and the Arlington Circuit Court
had subject matter jurisdiction for the trial of the
charges against Porter.
Even though Porter did not raise the argument, we note
that the grant of subject matter jurisdiction under Code
§ 17.1-513 is not limited by Code § 19.2-239, which sets
forth that “[t]he circuit courts, except where otherwise
provided, shall have exclusive original jurisdiction for
the trial of all presentments, indictments and informations
for offenses committed within their respective circuits.”
(Emphasis added.) The jurisdiction referenced in Code
§ 19.2-239 is a grant of territorial jurisdiction, not the
subject matter jurisdiction conferred under Code § 17.1-
513.
We reach this conclusion for at least two reasons.
First, if Code § 19.2-239 dealt with subject matter
jurisdiction, such a construction would render the Code
§ 17.1-513 grant of “original jurisdiction of all . . .
felonies” to all circuit courts to be meaningless and
superfluous. Such a statutory construction is to be
avoided. “The rules of statutory interpretation argue
against reading any legislative enactment in a manner that
will make a portion of it useless, repetitious, or absurd.
On the contrary, it is well established that every act of
27
the legislature should be read so as to give reasonable
effect to every word . . . .” Jones v. Conwell, 227 Va.
176, 181, 314 S.E.2d 61, 64 (1984). “[E]very part of a
statute is presumed to have some effect and no part will be
considered meaningless unless absolutely necessary.”
Hubbard v. Henrico Ltd. P’ship, 255 Va. 335, 340, 497
S.E.2d 335, 338 (1998).
In addition, Code § 19.2-239 contains the clear
proviso “except where otherwise provided.” The change of
venue statute, Code § 19.2-251, “otherwise provide[s],” and
venue was changed in this case. As a matter of law, venue
cannot be an issue of subject matter jurisdiction, and that
“otherwise provided” example confirms Code § 19.2-239 could
not encompass subject matter jurisdiction. “Venue and
jurisdiction, though sometimes confounded, are, accurately
speaking, separate and distinct matters. Jurisdiction is
authority to hear and determine a cause, or it may be
defined to be the right to adjudicate concerning the
subject matter in the given case. . . . Venue is merely the
place of trial . . . .” Texaco, Inc. v. Runyon, 207 Va.
367, 370, 150 S.E.2d 132, 135 (1966) (internal quotation
marks omitted).
Thus, while both the Arlington and Norfolk circuit
courts had subject matter jurisdiction over Porter’s
28
charges under Code § 17.1-513, the authority to conduct
that trial, that is, the territorial jurisdiction
authorizing the court to adjudicate among the parties at a
particular place, was initially in the Norfolk Circuit
Court, as the place of the offense, under Code § 19.2-239.
Nonetheless, if trial was had in Arlington, so that a
violation of Code § 19.2-239 occurred, that defect went
solely to the circuit court’s lack of authority to exercise
territorial jurisdiction and is waived if not timely
raised. See Morrison, 239 Va. at 169-70, 387 S.E.2d at
755-56; Southern Sand and Gravel, 145 Va. at 326, 133 S.E.
at 814; Gordon v. Commonwealth, 38 Va. App. 818, 822-23,
568 S.E.2d 452, 453-54 (2002). 9
Porter asked for the change of venue he duly received.
When offered the opportunity to move from Arlington, when
the trial began, Porter specifically declined to do so.
After the jury’s verdicts, Porter specifically requested
the transfer back to Norfolk, which the circuit court duly
9
We also note the language in Code § 17.1-503(B) that
“[n]o rule shall . . . preclude the judge before whom an
accused is arraigned in criminal cases from hearing all
aspects of the case on its merits, or to avoid or preclude
any judge in any case who has heard any part of the case on
its merits from hearing the case to its conclusion.” This
statutory language reflects a policy preference of the
General Assembly that the judge sitting when Porter’s case
commenced (in this case Judge Griffith), be the judge who
concludes trial of the case even if venue of the trial is
29
granted. Until raised by this Court, Porter never objected
to or questioned in any way the exercise of the circuit
court’s authority or any potential defects in that
authority by virtue of conducting proceedings in either
Arlington or Norfolk. Porter clearly failed to raise an
objection under Code § 19.2-244, which requires “questions
of venue to be raised before verdict.” Code § 19.2-244.
Porter received exactly what he requested in terms of a
different venue for his trial. He cannot take a different
position at this point without violating our rule
prohibiting approbation and reprobation. Cangiano v. LSH
Bldg. Co., 271 Va. 171, 181, 623 S.E.2d 889, 895 (2006) (“A
party may not approbate and reprobate by taking successive
positions in the course of litigation that are either
inconsistent with each other or mutually contradictory”);
see also Powell v. Commonwealth, 267 Va. 107, 144, 590
S.E.2d 537, 560 (2004); Cohn v. Knowledge Connections,
Inc., 266 Va. 362, 367, 585 S.E.2d 578, 581 (2003); Smith
v. Settle, 254 Va. 348, 354, 492 S.E.2d 427, 431 (1997);
Leech v. Beasley, 203 Va. 955, 961-62, 128 S.E.2d 293, 297-
98 (1962).
Nonetheless, Porter contends the circuit court’s
judgment was void, thus requiring reversal and a new trial,
altered.
30
based on his reading of Code § 17.1-105 as a mandatory
limit on a circuit court’s subject matter jurisdiction. 10
To support that position, Porter relies on Moore and
Gresham v. Ewell, 85 Va. (10 Hans.) 1, 6 S.E. 700 (1888).
Porter contends these cases establish precedent that a
judicial act is void, not voidable, when a lack of proper
designation of the trial judge occurs. We disagree.
We initially note some doubt that Code § 17.1-105
applies in the circumstance of a change of venue. 11 On its
10
Porter does not address and we do not reach the
constitutional authority of the Chief Justice of Virginia
to assign judges for the administration of justice. Va.
Const. art. VI, § 4. We do note that there is no
constitutional or statutory basis for the implication in
the dissent that a designation by the Chief Justice of
Virginia, or a circuit court judge, under Code § 17.1-105
could somehow convey subject matter jurisdiction, as is
amply illustrated by the lack of any citation to precedent
for that proposition in the dissenting opinions. Clearly,
subject matter jurisdiction comes only by constitutional or
statutory provision. Morrison, 239 Va. at 169, 387 S.E.2d
at 755.
11
Code § 17.1-105(A) and (B) state as follows:
A. If a judge of any court of record is
absent, sick or disabled or for any other reason
unable to hold any regular or special term of the
court, or any part thereof, or to perform or
discharge any official duty or function
authorized or required by law, a judge or retired
judge of any court of record may be obtained by
personal request of the disabled judge, or
another judge of the circuit to hold the court
for the whole or any part of such regular or
special term and to discharge during vacation
such duty or function, or, if the circumstances
require, to perform all the duties and exercise
31
face, Code § 17.1-105(A) appears directed at those
instances where illness, disability, or other similar
disqualifying circumstance necessitates a judge from
another circuit to sit in the affected jurisdiction. Code
§ 17.1-105(B) appears directed at conflicts of interest
which require recusal of all the judges in the circuit and
necessitates a judge from another jurisdiction to sit.
None of the circumstances indicated in Code § 17.1-105
occurred in this case. Furthermore, nothing on the face of
Code § 17.1-105 references a judicial designation when
there is a change of venue.
However, it is unnecessary for us to resolve whether
Code § 17.1-105 may have applied in this case and a
all the powers and jurisdiction as judges of such
circuit until the judge is again able to attend
his duties. The designation of such judge shall
be entered in the civil order book of the court,
and a copy thereof sent to the Chief Justice of
the Supreme Court. The Chief Justice shall be
notified forthwith at the time any disabled judge
is able to return to his duties.
B. If all the judges of any court of record are
so situated in respect to any case, civil or
criminal, pending in their court as to render it
improper, in their opinion, for them to preside
at the trial, unless the cause or proceeding is
removed, as provided by law, they shall enter the
fact of record and the clerk of the court shall
at once certify the same to the Chief Justice of
the Supreme Court, who shall designate a judge of
some other court of record or a retired judge of
any such court to preside at the trial of such
case.
32
designation order should have been entered for Judge
Griffith to sit in Arlington. We can assume, without
deciding, that if Code § 17.1-105 was applicable when venue
changed in this case, a missing order of designation would
only have affected the circuit court judge’s authority to
act in the exercise of territorial jurisdiction. As noted
earlier, that issue is waived if not timely raised. Porter
made no objection to the circuit court judge’s purported
lack of authority under Code § 17.1-105 and he cannot now
attack the circuit court’s judgment on that basis. Rule
5:25.
Porter’s citations to Moore and Ewell are similarly
unpersuasive. In Moore, the defendant argued his prior
juvenile court proceedings were void because the statutory
directive to give notice to both his parents was absent
from the record. 259 Va. at 434, 527 S.E.2d at 407.
Porter contends that Code § 17.1-105 is like the juvenile
notice statute at issue in Moore, which the majority of the
court held was “mandatory in nature and limit[s] a court’s
rightful exercise of its subject matter jurisdiction.” 259
Va. at 438, 527 S.E.2d at 409. The Court in Moore
concluded the lower court “never acquired the authority to
exercise its jurisdiction.” Id. at 440, 527 S.E.2d at 411.
Even though the juvenile court’s subject matter
33
jurisdiction was not at issue, the defendant was permitted
to collaterally attack the underlying judgment because the
majority found it void, not voidable. The dissenting
opinion in Moore, foreshadowing our decision in Nelson v.
Warden, 262 Va. 276, 552 S.E.2d 73 (2001), noted that “the
majority incorrectly equates statutory provisions that are
‘mandatory’ with those that are prerequisites to a juvenile
court’s exercise of its subject matter jurisdiction. . . .
The mandatory nature of a requirement, standing alone, does
not always make that requirement jurisdictional.” 259 Va.
at 446, 527 S.E.2d at 414-15 (J. Kinser, dissenting).
However, Porter’s reliance on Moore is misplaced
because we specifically overruled that case in Nelson. The
resolution of Nelson reflects the frailty of Porter's
position because the defendant in Nelson lost on the same
statutory notice defect Moore was allowed to raise,
specifically because the view that the defect was an
unwaivable jurisdictional defect (a premise in Moore) was
overruled in Nelson. Thus the pertinent comparison is
between the defendant Baker in the seminal parental
notification decision in Commonwealth v. Baker, 258 Va. 1,
516 S.E.2d 219 (1999) (per curiam), affirming Baker v.
Commonwealth, 28 Va. App 306, 504 S.E.2d 394 (1998), who
made timely objection throughout the proceedings – making
34
the defects cognizable on appeal – and the defendant in
Nelson, who failed to timely raise the claim at trial.
Nelson overruled Moore on the point that the failure to
object was a waiver of the argument given the non-
jurisdictional nature of the failure to adhere to the
statutory requirement, thus vitiating Porter's reliance on
this theory.
In Nelson, we embraced the dissent in Moore and
acknowledged that the majority’s analysis in Moore “is
flawed” and stated:
After noting the Court’s emphasis on the
distinction between subject matter jurisdiction
and the authority to exercise that jurisdiction,
the Court’s next step should have been to
demonstrate the difference resulting from the
distinction. Yet, we made a distinction without
a difference for, with our very next step, we
elevated the failure of a court to comply with
the requirements for exercising its authority to
the same level of gravity as a lack of subject
matter jurisdiction.
262 Va. at 281, 552 S.E.2d at 75. We then stated:
We indicated supra that we thought a different
outcome could have resulted in David Moore from
the distinction we drew between subject matter
jurisdiction and the authority to exercise that
jurisdiction. In our opinion, the different
outcome should have consisted of a finding that
the statutory requirement of notice to parents
was not jurisdictional but procedural in nature,
that a failure to notify parents could be waived
by a failure to object, and, correspondingly,
that a failure to comply with the requirement
rendered subsequent convictions voidable and not
35
void. To the extent David Moore conflicts with
these views, it is overruled.
262 Va. at 284-85, 552 S.E.2d at 77.
Porter contends the failure to follow Code § 17.1-105
and obtain a designation order for the conduct of his case
in Arlington and the return to Norfolk caused the circuit
court’s judgments to be void because the court lacked the
authority to exercise its otherwise valid subject matter
jurisdiction. As just illustrated, we specifically
rejected that argument in Nelson when we overruled Moore.
Thus, the circuit court had subject matter jurisdiction
over Porter’s trial which was never affected by the
transfer of venue and its judgments could not be void on
that basis. If a defect in the circuit court’s exercise of
its authority occurred, it was subject to waiver, and that
is what happened in the case at bar. While the circuit
court’s judgment may have been subject to a timely
objection, and thus have been a voidable judgment, Porter’s
failure to object settles the issue.
Porter’s citation to Ewell is similarly unavailing. 12
Ewell involved a judgment our predecessors determined to be
12
At the time of the Ewell decision, the Supreme Court
of Appeals consisted of only five members. Va. Const. art.
VI, § 2 (1870). A bare quorum of the Court, three members,
id., sat in the Ewell case so the majority opinion was
rendered by a plurality of only two members of the Court.
36
“null and void” because a judge from another jurisdiction
rendered that judgment without a proper designation to
conduct court in the jurisdiction where trial occurred. 85
Va. at 2, 6 S.E. at 701. However, as pointed out by the
dissent in Ewell, the majority’s underlying analysis
suffers from the same fatal flaws that caused us to
overrule Moore. See 85 Va. at 5-8, 6 S.E. at 701-03
(Lewis, C.J., dissenting).
Ewell involved a collateral attack upon a circuit
court judgment which had been rendered in Lancaster County
by a visiting judge for whom no order of designation had
been entered as required by a statutory predecessor to Code
§ 17.1-105. The plurality in Ewell held the visiting judge
entering the order “exceeded his jurisdiction in acting as
a judge without the authority of the law, and the said
judgment is without authority, and null and void.” 85 Va.
at 3, 6 S.E. at 701.
In an analysis mirroring the majority in Nelson and
the dissent in Moore, the dissent in Ewell correctly
stated:
The judgment is collaterally assailed, and being
a judgment rendered by a court of general
jurisdiction, acting within the scope of its
powers, and proceeding according to the course of
the common law, and held at the time by one of
the county judges of the state, it must, I think,
be held to be valid. For no principle is better
37
established than that a judgment of such a court,
when collaterally drawn in question, is not
affected by errors or irregularities which do not
show a want of jurisdiction, or an excess of
jurisdiction.
. . . .
In short, my opinion is, that the provisions
of the statute above referred to are directory
merely, and that the county court having
undisputed jurisdiction of the case in which the
judgment was rendered, a failure to comply with
the requirements of the statute could not affect
the validity of the judgment in this collateral
proceeding. The writ of prohibition cannot be
permitted in a case like this to take the place
of a writ of error or of an appeal, though they
are in some cases concurrent remedies.
85 Va. at 5-7, 6 S.E. at 701-02 (Lewis, C.J., dissenting).
The plurality in Ewell was incorrect in construing the
trial court’s judgment as void, instead of voidable, and
permitting a collateral attack by virtue of a defect in the
exercise of the court’s authority under its territorial
jurisdiction for the same reason as the majority erred in
Moore. The trial courts in Ewell and Moore had subject
matter jurisdiction over the respective cases and the
resulting judgments could not therefore be void and subject
to collateral attack in a later proceeding based on a
defect other than subject matter jurisdiction. Ewell and
Moore erroneously elevated a defect in something other than
subject matter jurisdiction to the same level of
consequence. The failure of the appellant in Ewell to
38
timely object to the court’s exercise of its jurisdiction
should have ended that case and, as we noted in Nelson, the
same should have occurred in Moore as well. After Nelson,
Ewell can have no validity and to the extent it conflicts
with our opinion in Nelson, it is overruled. 13
Whatever defects may have occurred with respect to the
transfer of Porter’s case to Arlington, and in returning to
Norfolk, would only have affected the circuit court’s
exercise of its territorial jurisdiction and could only
13
In overruling Ewell, we note that case has only been
cited six times by this Court since it was decided in 1888.
See Combs v. Commonwealth, 90 Va. 88, 90, 17 S.E. 881, 881
(1893); Prison Ass’n of Virginia v. Ashby, 93 Va. 667, 671,
25 S.E. 893, 894 (1896) (citing Ewell for the proposition
that “whatever jurisdiction this court exercises must be by
virtue of some statute enacted in conformity to the
Constitution”); Price v. Smith, 93 Va. 14, 15, 24 S.E. 474,
474 (1896) (stating that a court’s jurisdiction “must be by
virtue of statutory authority made in pursuance of the
Constitution”); Smith v. White, 107 Va. 616, 619, 59 S.E.
480, 481 (1907); Shelton v. Sydnor, 126 Va. 625, 632, 102
S.E. 83, 86 (1920) (quoting from the dissenting opinion in
Ewell); Akers v. Commonwealth, 155 Va. 1046, 1051, 156 S.E.
763, 765 (1930) (quoting from the dissenting opinion).
Other than supporting the concept that a court’s
jurisdiction must derive from statutory authority made in
pursuance of the Constitution, Ewell was otherwise
distinguished or cited by reference to its dissenting
opinion, which perhaps represents why we have never
specifically relied upon it. In that context, Ewell has no
application for purposes of stare decisis. Since the legal
basis of Ewell is plainly wrong under Nelson, it is
appropriate that Ewell be overruled. See Harmon v. Sadjadi,
273 Va. 184, 197, 639 S.E.2d 294, 301 (2007) (“[o]ur strong
adherence to the doctrine of stare decisis does not . . .
compel us to perpetuate what we believe to be an incorrect
application of the law”) (citation omitted).
39
have rendered the resulting judgments voidable if subject
to a proper and timely objection. Having failed to raise
any objections, Porter has waived any such jurisdictional
defects and the judgment of the circuit court is therefore
unaffected. Additionally, as we have already stated, we
will not permit Porter to approbate and reprobate in the
absence of a valid challenge to subject matter
jurisdiction.
C. METHODS OF EXECUTION
In his initial assignment of error, Porter contends
that the circuit court erred in denying his motion to
declare the Commonwealth’s lethal injection and
electrocution methods for execution unconstitutional as
being in violation of the prohibition against cruel and
unusual punishment under the Eighth Amendment of the
Constitution of the United States and Article I, Section 9
of the Constitution of Virginia. Porter asserts that
lethal injection, as it is administered in Virginia, is
unconstitutional based upon the purportedly inadequate
training of the staff administering the lethal injection,
as well as the “deficiencies inherent in the lethal
injection drugs themselves.” Porter further asserts that
electrocution “violates contemporary standards of decency
under the Eighth Amendment.” We reject Porter’s arguments
40
because our clear precedent recognizes that electrocution
is constitutionally permitted and the recent decision of
the United States Supreme Court in Baze v. Rees, ___ U.S.
___, 128 S.Ct. 1520 (2008), does not undermine the
constitutionality of lethal injection in Virginia.
This Court has previously held that execution by
electrocution does not violate the Eighth Amendment’s
prohibition against cruel and unusual punishment. Bell v.
Commonwealth, 264 Va. 172, 202, 563 S.E.2d 695, 715 (2002),
cert. denied, 537 U.S. 1123 (2003); Martin v. Commonwealth,
221 Va. 436, 439, 271 S.E.2d 123, 125 (1980). We find no
reason to depart from our previous decisions.
Pursuant to Code § 53.1-234, a defendant convicted of
capital murder in Virginia has the right to elect whether
to be executed by electrocution or lethal injection. “When
a condemned prisoner has a choice of method of execution,
the inmate may not choose a method and then complain of its
unconstitutionality, particularly when the
constitutionality of the alternative method has been
established.” Orbe v. Johnson, 267 Va. 568, 570, 601
S.E.2d 543, 546, cert. denied, 541 U.S. 970 (2004). Our
conclusion in Bell is similarly applicable in this case:
Bell has the right to choose whether his
execution will be by lethal injection or by
electrocution. Because Bell has that choice and
41
we have already ruled that execution by
electrocution is permissible under the Eighth
Amendment, it would be an unnecessary
adjudication of a constitutional issue to decide
whether lethal injection violates the Eighth
Amendment. See Bissell v. Commonwealth, 199 Va.
397, 400, 100 S.E.2d 1, 3 (1957). We decline to
do so, and likewise cannot say that the circuit
court erred in denying Bell's motion for an
evidentiary hearing to decide the
constitutionality of lethal injection as a method
of execution. Thus, we find no error in the
court's denial of Bell's motion.
264 Va. at 203, 563 S.E.2d at 715-16.
Moreover, the Supreme Court in Baze rejected a
challenge to Kentucky’s lethal injection procedure similar
to that raised by Porter. The Supreme Court held that a
constitutional challenge fails unless “the condemned
prisoner establishes that the State's lethal injection
protocol creates a demonstrated risk of severe pain. He
must show that the risk is substantial when compared to the
known and available alternatives. A State with a lethal
injection protocol substantially similar to the protocol we
uphold today would not create a risk that meets this
standard.” Baze, ___ U.S. at ___, 128 S.Ct. at 1537.
Porter concedes that the Virginia protocol is “materially
similar” to the Kentucky protocol.
Accordingly, we hold the circuit court did not err in
denying Porter’s motion regarding the methods of execution.
42
D. APPLICABILITY OF THE VIRGINIA ADMINISTRATIVE
PROCESS ACT
In a related assignment of error, Porter asserts that
the circuit court erred by denying his motion to suspend
all executions until regulations providing the necessary
procedures to carry out Virginia’s death penalty statutes
are properly promulgated. Porter maintains that the
particular procedures used for execution in Virginia are
unlawful because the Department of Corrections has failed
to comply with certain provisions of the Virginia
Administrative Process Act (“APA”), Code §§ 2.2-4000 et
seq. Porter’s assertions are without merit.
Agency action by the Virginia Department of
Corrections concerning inmates of prisons does not fall
within the scope of the APA. Though the APA exempts
certain Virginia agencies from its mandates specifically by
name, it also creates exemptions for agency action by
subject matter as well. Accordingly, the Act exempts
actions of agencies relating to “[i]nmates of prisons or
other such facilities or parolees therefrom.” Code § 2.2-
4002(B)(9). In this context, the Virginia Department of
Corrections is an agency whose sole purpose is related to
inmates of prisons. It is thus exempt from the strictures
of the APA. We therefore hold that the circuit court did
43
not err in rejecting Porter’s motion to invalidate the
execution procedures under the APA.
E. ADMISSION OF EVIDENCE REGARDING PORTER’S
STATUS AS A FELON
In his third assignment of error, Porter contends that
the circuit court erred by admitting prejudicial evidence
of his prior felony conviction during the Commonwealth’s
case-in-chief. During trial, the Commonwealth asserted
that Porter’s status as a convicted felon was admissible as
evidence of Porter’s possible motive for killing Officer
Reaves. The Commonwealth maintained that Porter knew that
it was illegal for him to carry a gun and, thus, shot the
officer in order to escape arrest for possession of a
firearm.
The Commonwealth similarly asserted that Porter’s
prior conviction proved an element of the offense charged
under Code § 18.2-31(6). This was so, the Commonwealth
contended, because Porter shot Officer Reaves “for the
purpose of interfering with the performance of his official
duties” as a law enforcement officer: to stop Officer
Reaves from arresting him for possessing a gun while a
convicted felon.
The circuit court allowed the Commonwealth to
introduce evidence that Porter had previously been
44
convicted of a violent felony. The court reasoned that
this evidence tended to prove Porter’s motive for the
killing as well as “an element of the offense; that is, the
murder was to interfere with the performance of a law
enforcement officer’s duties.”
“The responsibility for balancing the competing
considerations of probative value and prejudice rests in
the sound discretion of the trial court. The exercise of
that discretion will not be disturbed on appeal in the
absence of a clear abuse.” Spencer v. Commonwealth, 240
Va. 78, 90, 393 S.E.2d 609, 617 (1990).
In Guill v. Commonwealth, 255 Va. 134, 138, 495 S.E.2d
489, 491 (1998), this Court held that, “[e]vidence of
‘other crimes’ is relevant and admissible if it tends to
prove any element of the offense charged. Thus, evidence
of other crimes is allowed when it tends to prove motive,
intent, or knowledge of the defendant.” (Internal citation
omitted). In the case at bar, Porter admitted that he knew
when he shot Officer Reaves that, as a previously convicted
felon, he was subject to a five-year mandatory prison
sentence if found in possession of a firearm. Such
evidence is highly probative both of Porter’s possible
motivation for shooting Officer Reaves and to prove an
essential element of the offense charged.
45
Furthermore, in a deliberate effort to lessen any
inherent prejudice to Porter, the Commonwealth did not
enter Porter’s certified record of conviction or felony
sentencing order for armed robbery, nor did the
Commonwealth specifically detail the extent of Porter’s
other past bad acts. Rather, the jury was only informed
that Porter was a “violent felon” as defined by Code
§ 18.2-308.2, that he was consequently prohibited by law
from possessing a firearm, and that he would face a
mandatory five-year prison sentence if found with a firearm
in his possession. In this context, the probative value of
this evidence outweighed any incidental prejudice to
Porter. See Scates v. Commonwealth, 262 Va. 757, 761, 553
S.E.2d 756, 759 (2001). Accordingly, we hold that the
circuit court did not abuse its discretion by allowing this
evidence for the limited purpose of proving motive and an
essential element of the crime of which Porter was charged
under Code § 18.2-31(6). Bell v. Commonwealth, 264 Va. at
198-99, 563 S.E.2d at 713.
F. SECOND-DEGREE MURDER INSTRUCTION
Porter also assigns as error the circuit court’s
refusal to instruct the jury on the lesser-included offense
of second-degree murder. Porter asserts that the evidence
“that he shot Officer Reaves three times in rapid-fire
46
succession in an impulsive, unplanned and spontaneous surge
of panic after the officer unexpectedly grabbed [his] arm,
pointed his service revolver at him, and appeared to be
about to kill him” was “squarely presented through his own
testimony and supported by several witnesses.” Porter
contends the second-degree murder instruction was
appropriate because “[h]e insisted throughout his testimony
that he did not intend to kill Officer Reaves,” and “the
jury could fairly have entertained a reasonable doubt as to
. . . whether his malicious killing of Officer Reaves was
preceded by premeditation and deliberation.”
The Commonwealth responds that Porter failed to offer
more than a “scintilla of evidence” to support the second-
degree murder instruction. Further, the Commonwealth
insists that the circuit court did not err in refusing the
instruction because “Porter admitted taking aim at Officer
Reaves’[] head, standing within an arm’s length, intending
to shoot him and to putting a bullet into his head. After
Officer Reaves fell onto the ground, Porter leaned over the
officer and deliberately fired twice more.”
The principles governing our review of a circuit
court’s refusal of a lesser included offense instruction
regarding murder are well-settled.
47
We have long recognized that evidence
showing a murder “to have been deliberate,
premeditated and wilful could be so clear and
uncontroverted that a trial court could properly
refuse to instruct on the lesser included
offenses.” Painter [v. Commonwealth, 210 Va.
360, 366, 171 S.E.2d 166, 171 (1969)]. It
follows, therefore, that a criminal defendant “is
not entitled to a lesser degree instruction
solely because the case is one of murder.” Clark
v. Commonwealth, 220 Va. 201, 209, 257 S.E.2d
784, 789 (1979), cert. denied, 444 U.S. 1049
(1980).
A second[-]degree murder instruction is only
appropriate where it is supported by evidence.
Justus v. Commonwealth, 222 Va. 667, 678, 283
S.E.2d 905, 911 (1981), cert. denied, 445 U.S.
983 (1982); Painter, 210 Va. at 367, 171 S.E.2d
at 171. Moreover, the evidence asserted in
support of such an instruction “must amount to
more than a scintilla.” Justus, 222 Va. at 678,
283 S.E.2d at 911; Hatcher v. Commonwealth, 218
Va. 811, 814, 241 S.E.2d 756, 758 (1978).
Buchanan v. Commonwealth, 238 Va. 389, 409, 384 S.E.2d 757,
769 (1989).
“Because the issue on appeal deals with the circuit
court’s refusal of the lesser-included offense instruction
. . . , and even though the Commonwealth prevailed at
trial, we must view the evidence on this issue in the light
most favorable to the defendant, the proponent of the
instruction.” Commonwealth v. Leal, 265 Va. 142, 145, 574
S.E.2d 285, 287 (2003). Applying the appropriate standard
of review and viewing the evidence in the light most
favorable to Porter, we hold that the circuit court did not
48
err in refusing to offer the second-degree murder
instruction.
Porter failed to offer evidence “in support of a
particular instruction [that] ‘must amount to more than a
scintilla.’ ” Schlimmer v. Poverty Hunt Club, 268 Va. 74,
78, 597 S.E.2d 43, 45 (2004) (quoting Justus v.
Commonwealth, 222 Va. 667, 678, 283 S.E.2d 905, 911
(1981)). Further, we hold the evidence in this case of
Porter’s “deliberate, premeditated and wilful” murder of
Officer Reaves was “ ‘so clear and uncontroverted that a
trial court could properly refuse to instruct on the lesser
included offenses.’ ” Buchanan, 238 Va. at 409, 384 S.E.2d
at 769 (citation omitted).
Porter’s only evidence that he murdered Officer Reaves
without premeditation is his own testimony that he acted
because he “was scared” that Officer Reaves “was going to
kill [him].” Porter contends that testimony along with
other evidence the shots were fired “rapidly” and that it
would have been hard for him to remove Officer Reaves’
pistol from its holster, are more than a scintilla of
evidence negating premeditation. We disagree.
Other than Porter’s claim that Officer Reaves pulled
his gun first, there is no record evidence supporting that
theory and thereby a second-degree murder instruction for
49
lack of premeditation. Conversely, substantial and
uncontroverted evidence demonstrated that, after Porter
shot Officer Reaves the first time and Officer Reaves fell
to the ground, Porter shot Officer Reaves twice more. This
description of the shooting does not correspond with
Porter’s contention that he “was scared” but further
establishes his deliberation and premeditation, which is
“an intent to kill that needs to exist only for a moment.”
Coles v. Commonwealth, 270 Va. 585, 590, 621 S.E.2d 109,
112 (2005) (quoting Green v. Commonwealth, 266 Va. 81, 104,
580 S.E.2d 834, 847 (2003)).
Moreover, Porter’s own testimony proves his act of
shooting Officer Reaves was one of premeditation and
deliberation as this exchange during cross-examination
reflects:
Q. You meant to hit Stanley Reaves with a
bullet, didn’t you?
A. Yes, sir.
Q. All right. And you took aim – therefore,
you took aim at him, correct?
A. Yes, sir.
Q. You took aim at a part of his body, correct?
A. Yes, sir.
Q. And the part of his body that you took aim
at and then before pulling the trigger from less
50
than six inches away was directly into his
forehead, correct?
A. Yes, sir.
. . . .
Q. And you agree that you knew you were aiming
at his head, correct?
A. Yes, sir.
Thus, “[t]he evidence to which [Porter] points falls far
short of proving provocation, anger, passion, or any other
fact that might serve to convince a jury that [Porter]
acted without premeditation.” Buchanan, 238 Va. at 412,
384 S.E.2d at 771.
Not only does Porter’s recited evidence fail to
“amount to more than a scintilla” in support of a second-
degree murder instruction, but this is a case where the
evidence of premeditation is “ ‘so clear and uncontroverted
that a trial court could properly refuse to instruct on the
lesser included offenses.’ ” Buchanan, 238 Va. at 409, 384
S.E.2d at 769 (citation omitted). Accordingly, we hold
that the circuit court did not err in refusing Porter’s
request for a second-degree murder instruction.
G. PRISON RISK ASSESSMENT EXPERT
After the circuit court had appointed a mental health
expert and a neuropsychological expert to assist in
Porter’s defense, Porter filed the Prison Expert Motion
51
requesting that Dr. Mark D. Cunningham be appointed “as an
expert on the assessment of the risk of violence by prison
inmates and, in particular, the risk of future
dangerousness posed by the defendant if incarcerated in a
Virginia penitentiary for life.” The circuit court denied
the motion and Porter assigns error to that ruling because
it did not allow him “to rebut the Commonwealth’s
allegation that the defendant constitutes a continuing
threat to society, and also to establish, as a mitigating
factor, that the likelihood of further serious violence by
the defendant was low.”
Our decision in Husske v. Commonwealth, 252 Va. 203,
476 S.E.2d 920 (1996), established the basis upon which a
circuit court reviews the request of an indigent defendant
for the appointment of an expert witness to assist in his
defense. We described and applied the Husske analysis in
Commonwealth v. Sanchez, 268 Va. 161, 597 S.E.2d 197 (2004)
which guides our review in the case at bar.
In Husske v. Commonwealth, 252 Va. 203, 476
S.E.2d 920 (1996), this Court noted that an
indigent defendant is not constitutionally
entitled, at the state’s expense, to all the
experts that a non-indigent defendant might
afford. Id. at 211, 476 S.E.2d at 925. All that
is required is that an indigent defendant have “
‘an adequate opportunity to present [his] claims
fairly within the adversary system.’ ” Id.
(quoting Ross v. Moffitt, 417 U.S. 600, 612
(1974)).
52
In Husske we held 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,” and that he
will be prejudiced by the lack of
expert assistance.
Id. at 211-12, 476 S.E.2d at 925 (citation
omitted). In that context, we specified that a
defendant seeking the assistance of an expert
witness “must show a particularized need” for
that assistance. Id.
It is the defendant’s burden to demonstrate
this “particularized need” by establishing that
an expert’s services would materially assist him
in preparing his defense and that the lack of
such assistance would result in a fundamentally
unfair trial. Id.; accord Green v. Commonwealth,
266 Va. 81, 92, 580 S.E.2d 834, 840 (2003). We
made clear in Husske and subsequent cases that
“mere hope or suspicion that favorable evidence
is available is not enough to require that such
help be provided.” 252 Va. at 212, 476 S.E.2d at
925 (internal quotation marks omitted). Whether
a defendant has made the required showing of
particularized need is a determination that lies
within the sound discretion of the trial court.
268 Va. at 165, 597 S.E.2d at 199.
Porter attached several documents to the Prison Expert
Motion including his curriculum vitae and a “Declaration”
which had been filed in a separate capital murder case,
Gray v. Commonwealth, 274 Va. 290, 645 S.E.2d 448 (2007),
cert. denied, ___ U.S. ___, 128 S.Ct. 1111 (2008) (the
53
“Gray Declaration”). However, at no place in the Prison
Expert Motion does Porter represent that Dr. Cunningham’s
evidence as to him would be of the same nature as in the
Gray Declaration.
Porter acknowledges that he “must show a
particularized need” under Husske. In his Prison Expert
Motion, however, Porter primarily focused on criticizing
prior decisions of this Court regarding prison risk
assessment experts and lauding the virtues of various
statistical modes of analysis to project rates of prison
inmate violence. Porter cited a number of studies about
statistical analysis of the rates of prison inmate violence
at various times and settings and upon which Dr.
Cunningham’s evidence would be based. Porter represented
that “context and statistical and actuarial data . . . are
indispensable to the determination of risk.” Porter argued
that the statistical evidence of conditions during life
imprisonment in the penitentiary “must be admissible to
rebut the Commonwealth’s assertion that the defendant will
probably commit criminal acts of violence in the future.”
Porter also contended that in examining the aggravating
factor of future dangerousness under Code § 19.2-264.4(C)
“the only ‘society’ to which the defendant can ever pose a
‘continuing serious threat’ is prison society.” “[T]he
54
future dangerousness inquiry is concerned only with that
violence that is both ‘criminal’ and ‘serious’ and occurs
behind prison walls during the natural life of the capital
life inmate.”
Porter indicated in the Prison Expert Motion that our
prior decisions in Burns v. Commonwealth, 261 Va. 307, 541
S.E.2d 872, cert. denied, 534 U.S. 1043 (2001), and Lovitt
v. Commonwealth, 260 Va. 497, 537 S.E.2d 866 (2000), cert.
denied, 534 U.S. 815 (2001), were in error. Among other
reasons, Porter contended that we incorrectly interpreted
the term “society” as used in Code § 19.2-264.2 and 19.2-
264.4(C). Porter argued “it is manifestly impossible for a
defendant adequately to explain why he is not a continuing
serious threat to society without introducing evidence of
the conditions of prison incarceration, including prison
security and the actual rates of serious criminal violence
in prison.”
The Commonwealth responded to Porter’s Expert Motion
by citing our prior decisions in Burns, Cherrix v.
Commonwealth, 257 Va. 292, 513 S.E.2d 642, cert. denied,
528 U.S. 873 (1999), Juniper, and Walker v. Commonwealth,
258 Va. 54, 515 S.E.2d 565 (1999), cert. denied, 528 U.S.
1125 (2000). The Commonwealth noted, consonant with that
precedent, that “what a person may expect in the penal
55
system is not relevant mitigation evidence,” and that
Porter’s proffer failed to tender evidence that “concern[s]
the history or experience of the defendant” (citing
Cherrix, 257 Va. at 310, 513 S.E.2d at 653).
After hearing oral argument, the circuit court denied
the motion and opined from the bench that Dr. Cunningham’s
proffered evidence “does not concern the history or
experience of the defendant. . . . I have to venture to
conclude an expert in his field could take any general
claims he might make with respect to the prison framework
and apply it to an individual. That doesn’t make it
particular.” Further, the circuit court explained that
because the Commonwealth was “simply going to be going into
the defendant’s personal history and acts” and offering
nothing as to prison life, Dr. Cunningham was not a proper
rebuttal witness.
On appeal, Porter contends that, in the circuit court,
he made it “clear that Dr. Cunningham would provide an
individualized assessment of the risk posed by Porter.”
Porter argues he could not rebut the Commonwealth’s
evidence of future dangerousness based on his prior
criminal record and the facts of the crime without Dr.
Cunningham’s testimony. He contends that Dr. Cunningham’s
proffered evidence should have been admissible under
56
Simmons v. South Carolina, 512 U.S. 154 (1994) and the
failure to afford him that expert “prejudiced” Porter in
two ways:
First, it rendered unreliable the jury’s finding
in favor of the Commonwealth on the future threat
predicate – a finding that provided the sole
aggravating factor supporting the death penalty.
And second, even if Dr. Cunningham’s rebuttal
testimony had not altogether prevented a
dangerousness finding by the sentencing jury, it
would at least have substantially reduced the
weight that the jury would have accorded to the
existence of that factor when making its ultimate
sentencing decision.
Porter thus concludes he met the required Husske showing of
a “particularized need” and the circuit court’s failure to
appoint Dr. Cunningham as his expert requires that the
court’s judgment be reversed.
To resolve the issue before us, we begin with a review
of the pertinent statutes, Code § 19.2-264.2 and Code
§ 19.2-264.4(C), and our decisions in which we considered
prison-setting evidence a defendant sought to offer at a
capital murder sentencing. We will then review Porter’s
actual proffer in this case and apply that precedent in
evaluating whether the circuit court abused its discretion
in denying the Prison Expert Motion.
Code § 19.2-264.2 provides in pertinent part as
follows:
57
In assessing the penalty of any person convicted
of an offense for which the death penalty may be
imposed, a sentence of death shall not be imposed
unless the court or jury shall (1) after
consideration of the past criminal record of
convictions of the defendant, find that there is
a probability that the defendant would commit
criminal acts of violence that would constitute a
continuing serious threat to society.
(Emphasis added.) Code § 19.2-264.4(C) similarly provides
that the penalty of death shall not be imposed unless the
Commonwealth proves
beyond a reasonable doubt that there is a
probability based upon evidence of the prior
history of the defendant or of the circumstances
surrounding the commission of the offense of
which he is accused that he would commit criminal
acts of violence that would constitute a
continuing serious threat to society.
(Emphasis added.)
The plain directive of these statutes is that the
determination of future dangerousness is focused on the
defendant’s “past criminal record,” “prior history” and
“the circumstances surrounding the commission of the
offense.” These standards defining the future
dangerousness aggravating factor are the basis of our
earlier decisions which considered motions for appointment
of prison risk experts or the proffer of prison risk
evidence.
In Cherrix, the defendant “sought to introduce”
evidence which “involved the general nature of prison life”
58
as mitigating evidence of his future dangerousness. 257
Va. at 309, 513 S.E.2d at 653. We noted that
[a]lthough the United States Constitution
guarantees the defendant in a capital case a
right to present mitigating evidence to the
sentencing authority, it does not limit “the
traditional authority of a court to exclude, as
irrelevant, evidence not bearing on the
defendant’s character, prior record, or the
circumstances of his offense.”
Id. (quoting Lockett v. Ohio, 438 U.S. 586, 605 n.12
(1978)). We held that the circuit court properly excluded
Cherrix’ prison setting evidence because “none of this
evidence concerns the history or experience of the
defendant. We agree with the conclusion of the trial court
that what a person may expect in the penal system is not
relevant mitigation evidence.” Id. at 310, 513 S.E.2d at
653. We also noted that “none of the evidence proffered at
trial addressed Cherrix’s ability to conform or his
experience in conforming to prison life.” Id. at 310 n.4,
513 S.E.2d at 653 n.4 (internal quotation marks omitted).
We next addressed the issue in Lovitt, when the
defendant argued that under Code § 19.2-264.2 “the only
society that should be considered in this case for purposes
of ‘future dangerousness’ is prison society.” 260 Va. at
516, 537 S.E.2d at 878. We rejected this argument because
“[t]he statute does not limit this consideration to ‘prison
59
society’ when a defendant is ineligible for parole, and we
decline Lovitt’s effective request that we rewrite the
statute to restrict its scope.” Id. at 517, 537 S.E.2d at
879.
In Burns, the defendant “attempted to introduce
evidence concerning the conditions [in prison] in rebuttal
to the Commonwealth’s evidence of Burns’ future
dangerousness.” 261 Va. at 338, 541 S.E.2d at 892. Burns
acknowledged that we had rejected a similar claim in
Cherrix as improper mitigating evidence, but he proffered
his evidence “in rebuttal to the Commonwealth’s evidence of
Burns’ future dangerousness.” Id. The Commonwealth’s
evidence “concerning Burns’ future dangerousness consisted
of his prior criminal record and unadjudicated criminal
acts.” Id. at 339, 541 S.E.2d at 893. Burns contended he
should be allowed to rebut that evidence with witnesses
echoing the rejected evidence in Lovitt, and similar to
Porter’s proffer, “that his opportunities to commit
criminal acts of violence in the future would be severely
limited in a maximum security prison.” Id. We held the
circuit court did not err in rejecting the proffered
evidence because “Burns’ evidence was not in rebuttal to
any evidence concerning prison life” from the Commonwealth.
Id.
60
We explained that our decision concerning the risks
and consequences of prison life rested on the specific
language of the controlling statutes, §§ 19.2-264.2 and
19.2-264.4(C):
[T]he relevant inquiry is not whether Burns could
commit criminal acts of violence in the future
but whether he would. Indeed, Code §§ 19.2-264.2
and -264.4(C) use the phrase “would commit
criminal acts of violence.” Accordingly, the
focus must be on the particular facts of Burns’
history and background, and the circumstances of
his offense. In other words, a determination of
future dangerousness revolves around an
individual defendant and a specific crime.
Evidence regarding the general nature of prison
life in a maximum security facility is not
relevant to that inquiry, even when offered in
rebuttal to evidence of future dangerousness.
261 Va. at 339-40, 541 S.E.2d at 893. We also analyzed
Burns’ claims based on his argument that the decisions of
the United States Supreme Court in Simmons and Skipper v.
South Carolina, 476 U.S. 1 (1986), entitled him to present
this evidence to the fact-finder. We found neither case
applicable because the evidence of future prison conduct
was not particularized and individualized to the defendant
and guided by the statutory requirements of his criminal
history and background. “Unlike the evidence proffered by
Burns, the evidence in Skipper was peculiar to that
defendant’s history and background.” Id. at 340, 541
S.E.2d at 894.
61
We again addressed this general issue in Bell, when
the defendant requested the appointment of an expert
to assess his likelihood of being a future danger
in prison, and to testify concerning the
correctional systems used in a maximum security
prison to manage inmates and prevent acts of
violence.
. . . .
Bell asserts that evidence concerning the prison
conditions in which he would serve a life
sentence is relevant not only in mitigation and
in rebuttal to the Commonwealth’s evidence of
future dangerousness, but also to his “future
adaptability” to prison life.
264 Va. at 199-200, 563 S.E.2d at 713. Echoing Porter’s
claims in the case at bar, Bell contended that our
decisions in Cherrix and Burns were erroneous and cited the
United States Supreme Court decisions in Simmons, Skipper
and Williams v. Taylor, 529 U.S. 362 (2000) to support his
argument. Bell, 264 Va. at 199, 563 S.E.2d at 713.
As in Burns, we noted that the evidence in Skipper and
Williams was individualized specifically to those
defendants’ prior acts while incarcerated and were not
statistical projections of future behavior. We then noted
that in Cherrix and Burns,
the “common thread” in these cases is that
evidence peculiar to a defendant’s character,
history and background is relevant to the future
dangerousness inquiry and should not be excluded
from a jury’s consideration. This includes
evidence relating to a defendant’s current
62
adjustment to the conditions of
confinement. . . . But, as we had already stated,
“[e]vidence regarding the general nature of
prison life in a maximum security facility is not
relevant to that inquiry, even when offered in
rebuttal to evidence of future dangerousness.”
Id. at 201, 563 S.E.2d at 714 (citing Burns, 261 Va. at
340, 541 S.E.2d at 893). We then held that the circuit
court had not abused its discretion in denying the
appointment of Bell’s prison risk expert because he had not
met the requirements of Husske.
While we do not dispute that Bell’s “future
adaptability” in terms of his disposition to
adjust to prison life is relevant to the future
dangerousness inquiry, Bell acknowledged on brief
that the individual that he sought to have
appointed has been qualified previously as an
expert in prison operations and classification.
The testimony that Bell sought to introduce
through the expert concerned the conditions of
prison life and the kind of security features
utilized in a maximum security facility. That is
the same kind of evidence that we have previously
rejected as not relevant to the future
dangerousness inquiry. See Burns, 261 Va. at 340,
541 S.E.2d at 893; Cherrix, 257 Va. at 310, 513
S.E.2d at 653. Nor is such general evidence, not
specific to Bell, relevant to his “future
adaptability” or as a foundation for an expert
opinion on that issue. Thus, we conclude that the
circuit court did not err in denying Bell’s
motion. Bell failed to show a “particularized
need” for this expert. Lenz v. Commonwealth, 261
Va. 451, 462, 544 S.E.2d 299, 305, cert. denied,
534 U.S. 1003 (2001). In light of the
inadmissibility of the evidence that Bell sought
to introduce through the expert, he also failed
to establish how he would be prejudiced by the
lack of the expert's assistance. See id.
264 Va. at 201, 563 S.E.2d at 714-15.
63
Lastly, we addressed this issue in Juniper, when the
indigent defendant sought the appointment of a psychologist
to make a “risk assessment for future dangerousness”
showing that such risk “was different in a prison setting
from that in an open community.” 271 Va. at 424, 626
S.E.2d at 422. For the reasons previously stated in
Cherrix, Burns and Bell, we determined that the circuit
court properly exercised its discretion in denying
appointment of the proposed expert because “what a person
may expect in the penal system is not relevant mitigation
evidence.” Id. at 425, 626 S.E.2d at 423 (quoting Cherrix,
257 Va. 310, 513 S.E.2d at 653).
Citing Burns, we re-emphasized that “the focus must be
on the particular facts of [the defendant’s] history and
background, and the circumstances of his offense. In other
words, a determination of future dangerousness revolves
around an individual defendant and a specific crime.” Id.
at 426, 626 S.E.2d at 423 (quoting Burns, 261 Va. at 339-
40, 541 S.E.2d 893-94). We went on to state that
evidence relating to a prison environment must
connect the specific characteristics of the
particular defendant to his future adaptability
in that environment in order to be heard by the
jury. It must be “evidence peculiar to a
defendant's character, history and background” in
order to be “relevant to the future dangerousness
inquiry . . . .”
64
Id. at 426, 626 S.E.2d at 424 (quoting Bell, 264 Va. at
201, 563 S.E.2d at 714). We concluded that the proffer of
testimony in Juniper did not meet these tests because none
of it tied the
proposed opinion testimony on future
dangerousness in a prison environment to
Juniper’s “history and background, and the
circumstances of his offense,” Burns, 261 Va. at
340, 541 S.E.2d at 893, to Juniper’s “character,
history and background” or was “specific to
[Juniper], relevant to his ‘future
adaptability.’ ” Bell, 264 Va. at 201, 563
S.E.2d at 714.
Id. at 427, 626 S.E.2d at 424.
With the statutory future dangerousness requirements
and our precedent firmly in mind, we now turn to the actual
proffer of Dr. Cunningham’s proposed evidence so as to
measure that proffer against those factors. Porter’s
Prison Expert Motion for appointment of Dr. Cunningham is
notable for an essential, but missing, element. At no
place in the motion does he proffer that Dr. Cunningham’s
statistical analysis of a projected prison environment will
“focus . . . on the particular facts of [his] history and
background, and the circumstances of his offense.” Burns,
261 Va. at 340, 541 S.E.2d at 893; see Code §§ 19.2-264.2
and Code § 19.2-264.4(C). Nothing in Porter’s motion is a
proffer of an “individualized” or “particularized” analysis
of Porter’s “prior criminal record,” “prior history”, his
65
prior or current incarceration, or the circumstances of the
crime for which he had been convicted. See id., Juniper,
271 Va. at 427, 626 S.E.2d at 424, Bell, 264 Va. at 201,
563 S.E.2d at 714, Burns, 261 Va. at 339-40, 541 S.E.2d at
893.
Porter’s proffer in the motion was that Dr. Cunningham
would testify as to a statistical projection of how prison
restrictions could control an inmate (situated similarly to
what he would project Porter to face) in a likely prison
setting. Nothing in this proffer relates to the essential
statutory elements in Code §§ 19.2-264.2 and 19.2-264.4
that focus the future dangerousness inquiry on the
defendant’s prior history, prior criminal record and/or the
circumstances of the offense. Additionally, nothing in
Porter’s proffer analyzes our application of this statutory
directive to the “defendant’s character, history and
background.” Not only is the Prison Expert Motion devoid
of any reference that the proffered evidence would be
“individualized” or “particularized” to Porter, his post
conviction Motion for a New Trial was similarly silent.
Porter’s proffered evidence is not substantially
different from the type we rejected in Burns and Bell. As
in Burns, the Commonwealth in this case neither proposed
nor introduced any evidence concerning Porter’s prospective
66
life in prison, but limited its evidence on the future
dangerousness aggravating factor to the statutory
requirements represented by Porter’s “prior criminal record
and unadjudicated criminal acts. Thus [Porter’s] evidence
was not in rebuttal to any evidence concerning prison
life.” 261 Va. at 339, 541 S.E.2d at 893.
Strikingly similar to Porter’s argument in the case at
bar was the defendant’s argument in Bell, when the
defendant also requested that an expert be appointed “to
assess his likelihood of being a future danger in prison,
and to testify concerning the correctional systems used in
a maximum security prison to manage inmates and prevent
acts of violence.” 264 Va. at 199, 563 S.E.2d at 713.
Porter’s proposed statistical projection on future violent
acts of an inmate who may be similarly situated to Porter
is nearly identical to the rejected claim in Bell. “The
testimony that Bell sought to introduce through the expert
concerned the conditions of prison life and the kind of
security features utilized in a maximum security facility.
That is the same kind of evidence that we have previously
rejected as not relevant to the future dangerousness
inquiry.” Id. at 201, 563 S.E.2d at 714. We rejected
Bell’s argument and found the circuit court committed no
abuse of discretion in denying his motion for appointment
67
of an expert because the proffered evidence was both (1)
improper rebuttal evidence for the same reasons as in
Burns, and (2) not relevant for mitigation because the
proffered evidence, like Porter’s evidence, was not
“peculiar to a defendant’s character, history and
background.” Id. Thus, “Bell failed to show a
‘particularized need’ for this expert.” Id at 201, 563
S.E.2d at 715. So has Porter.
Our analysis in Bell also informs as to why Porter’s
reliance on the Supreme Court decisions in Skipper, Simmons
and Williams is as unavailing here as it was in that case.
In Skipper and Williams, individualized and particularized
testimony about the defendant’s past behavior during
incarceration was available but not presented because in
one case it was barred by the trial court, see Skipper, 476
U.S. at 3-4, and in the other case defense counsel failed
to offer the individualized material that was available.
Williams, 529 U.S. at 368-71, 396. This was error because
each defendant was entitled to show these historical events
which were particularized and individualized to that
defendant. Id. Porter’s evidence is simply not of the
same character as that in Skipper and Williams because it
is not individualized or particularized to Porter’s past
68
criminal acts or incarceration as required by the statutory
factors on future dangerousness. 14
We also note that our use of the term “future
adaptability” in Bell and Juniper must be read in proper
context. That context is the statutory mandate for the
findings in Code §§ 19.2-264.2 and 19.2-264.4(C) which is
the guiding framework of our prior decisions relating to
future dangerousness. As noted earlier, the future
dangerousness finding is to be based on evidence of the
“prior history of the defendant or of the circumstances
surrounding the commission of the offense.” Code § 19.2-
264.4(C). Thus when we used the term “future
adaptability”, we meant that term only as future
dangerousness can be derived from the context of the
defendant’s past acts, both as to his “criminal record” and
“prior history” and including his past incarceration and
the circumstances of the capital crime. See Bell, 264 Va.
at 199, 563 S.E.2d at 713.
Porter’s defective proffer is not saved by his claim
on appeal that the Gray Declaration showed an
individualized or particularized proffer as to Porter. At
14
Similarly, Bell’s and Porter’s reliance on Simmons
was misplaced because that case dealt solely with
information regarding parole eligibility, an issue not
69
no place in the Prison Expert Motion, or in his oral
argument before the circuit court, does Porter state that
Dr. Cunningham intends to do in his case that which he
purported to do in the Gray case. Even if we assume that
the representation in the Gray Declaration would meet the
test of our prior decisions, Porter never proffered that
analysis was what he intended in this case. 15
Porter contends that he made a sufficiently
individualized proffer when arguing the Prison Expert
Motion before the circuit court. It is true that Porter
used some key terms like “individualized testimony” but his
entire argument on that point consisted of the following:
before the Court in this case. See Simmons, 512 U.S. at
156.
15
Even if we assumed Porter intended his proffer in
the Prison Expert Motion to be that Dr. Cunningham would do
for Porter what the Gray Declaration indicates for Mr.
Gray, the tenor of the Gray Declaration raises the same
issues already discussed with regard to our precedent in
Burns and Bell. Even though Dr. Cunningham has adopted the
use of key words like “individualized assessment,” the
analysis appears to be of the same genre of the rejected
proffers of how security measures in a future incarceration
may affect a defendant’s ability to commit more violent
acts. For example, he states in the Gray Declaration that
“[b]ecause risk is always a function of context or
preventative interventions, increased security measures can
act to significantly reduce the likelihood of Mr. Gray
engaging in serious violence in prison. Mr. Gray’s risk of
violence in the face of such increased security measures
can also be projected.” Our precedent is clear that such
evidence is not relevant either in rebuttal or mitigation
as to the future dangerousness factor.
70
This is individualized testimony with regard
to Thomas Porter’s future risk in a penitentiary
setting.
Dr. Cunningham, as stated in his affidavit
. . . will be able to opine in a scientific
matter based on an individualized assessment of
Mr. Porter, which includes prior behavior while
he was incarcerated in the past, to include the
76 unadjudicated bad acts that the Commonwealth
has noticed; appraisals of past security
requirements while he was incarcerated; and his
age; his level of education and comparative
review of the statistical data regarding
similarly-situated inmates.
The representation on oral argument is simply too vague to
have any meaning.
Porter’s proffer in the Prison Expert Motion fails to
address the statutory factors under Code § 19.2-264.2 and
19.2-264.4(C) as being individualized and particularized as
to Porter’s prior history, conviction record and the
circumstances of the crime. As our precedent would render
inadmissible the statistical speculation he does offer,
Porter has failed to show the “particularized need”
necessary to meet the Husske test. “In light of the
inadmissibility of the evidence that [Porter] sought to
introduce through the expert, he also failed to establish
how he would be prejudiced by the lack of the expert’s
assistance.” Bell, 264 Va. at 201, 563 S.E.2d at 715.
Accordingly, we conclude that the circuit court did not
abuse its discretion in denying the Prison Expert Motion.
71
H. COMMENTS DURING CLOSING ARGUMENT ABOUT “SOCIETY”
In a separate assignment of error partially related to
his arguments on the Prison Expert Motion, Porter contends
that the circuit court erred during the penalty phase of
the trial when it made “prejudicial” comments and
“intemperate” curative instructions. Specifically, Porter
argues the circuit court “erred by making prejudicial
comments concerning the definition of ‘society’ during
defense counsel’s closing argument; by stating prejudicial,
intemperate, and one-sided ‘curative’ mid-argument
instructions on this point; and by denying the defendant’s
motion for a mistrial following this incident.”
The record shows that the circuit court interrupted
Porter’s counsel during closing argument in order to
instruct the jury that society meant “[e]verybody,
anywhere, anyplace, anytime” in response to comments from
counsel that “society” meant prison society. When Porter’s
counsel again made similar remarks, a discussion at the
bench occurred which led the court to comment to the jury
that “society” was a “definitional word” that was not
“complex” and “pretty simple” to understand. At no point
during either interruption did Porter’s counsel object to
the court’s comments. At the conclusion of his closing
arguments, Porter’s counsel moved for a mistrial based on
72
the court’s comments, which motion the court denied. The
next day, Porter filed a written mistrial motion, which the
court also denied.
Porter contends that the court’s comments violated his
Sixth Amendment right to have counsel present a summation
of the evidence to the jury and denied him a fair
opportunity to rebut the Commonwealth’s allegation that he
would be a continuing threat to society. Porter maintains
that the court’s comments prejudiced him as the jury could
have interpreted the comments as a form of rebuttal from
the court in which the court appeared to agree with the
Commonwealth’s contention that Porter was a continuing
threat to society.
We do not consider the merits of Porter’s contentions
because the record shows that he failed to timely object to
any of the circuit court’s comments. Rule 5:25. See also
Reid v. Baumgardner, 217 Va. 769, 774, 232 S.E.2d 778, 781
(1977) (citing Russo v. Commonwealth, 207 Va. 251, 256-57,
148 S.E.2d 820, 824-25 (1966)) (finding that an objection
must be made at the time words are spoken and the objection
is waived if not timely made).
I. COURTROOM SECURITY
Porter also assigns as error the circuit court’s
ruling “denying the defendant’s motion for relief from
73
excessive, unjustified and prejudicial in-court security,
which included the presence of two uniformed officers
continuously standing over the seated defendant during the
proceedings.” Relevant to this assignment of error, the
parties stipulated for the record that the bench was 21
feet in front of counsel table and the bar of the court was
12 feet behind that table. Six deputies provided courtroom
security throughout Porter’s trial. One deputy stood by
the bench near the clerk, another stood near the witness
stand, a third deputy stood at the witnesses’ entrance, a
fourth deputy stood at the entrance to the spectator’s
gallery, and two others stood directly behind Porter
between counsel table and the bar. On the fifth day of his
trial, Porter objected to the two deputies standing behind
him instead of being seated.
Porter argued that these deputies should be seated
just within the bar of the court in accordance with a
security arrangement Porter alleged he made with the
sheriff’s office prior to trial. Porter maintained that
standing so close to him was unnecessary because he wore a
50,000 volt stun belt for security purposes, and that the
standing deputies prejudiced the jury by implying that
Porter was “incredibly dangerous.” The circuit court
responded that:
74
[O]ne, you have given me no Virginia statutory
provisions that says [sic] that I have the
authority to direct the sheriff’s department as
to how to conduct their security functions that
they are required to conduct for the courts in
Virginia.
Two, you haven’t given me a single Virginia
case that says that I have any authority in that
regard.
. . . .
I don’t believe I have the authority to tell
the sheriff’s department how to conduct security
in the courtrooms.
. . . .
I don’t believe you have given me enough
information to make me believe that what they are
doing is causing any undue prejudice in the
course of this trial. So I’m not going to accept
your invitation to go outside my authority to
tell them how to do their job.
The court also noted that:
[I]n fact, we are on the fifth day of the trial.
The procedures that you complain of, from my
observations, have been in place the entire
trial, every day of the trial.
I haven’t noticed any difference in the way
the bailiffs have operated or conducted
themselves for the full five days of this trial.
This is the first time that you have raised this
issue with the [c]ourt.
The following day, Porter’s counsel filed and argued a
written motion for relief from “excessive and prejudicial
in-court security presence.” Porter argued the “police
display not only destroys the presumption of innocence to
75
which every defendant is entitled, but also impermissibly
telegraphs law enforcement’s answer to the sentence-related
determination of whether the defendant poses a continuing
threat of future violence.” Porter supplied the court with
supplemental authority reflecting that the control of
courtroom security was within the circuit court’s
discretion and renewed his request that the deputies be
seated in chairs just inside the bar of the court instead
of standing.
In response, the Commonwealth noted that on February
15, 2007, while in custody awaiting trial, Porter had
refused to obey deputies’ instructions to leave his holding
cell to be brought into court. Consequently, the deputies
had been obliged to adopt unusual measures on that
occasion: “to actually handcuff him behind his back, to
put a stun belt on, and had [him placed in] shackles in
stocking feet.” The Commonwealth stipulated that Porter
had not misbehaved while in the courtroom but that the
deputies “obviously . . . have to be aware of the
defendant’s history and . . . that’s something they take
into account when they decide what measures they need to
take in regard to any particular defendant in a courtroom
during trial. So . . . that is something that cannot be
ignored.”
76
The Commonwealth also observed that the deputies had
simply been standing behind Porter and had not interfered
with the proceedings or attempted to influence the jury:
They are standing there still, quiet; they
are not making any gestures towards Mr. Porter
that would indicate their opinion of whether Mr.
Porter presents a danger to the courtroom. They
just appear to be stationed in a certain location
within the courtroom as other deputies are
stationed, and the place they are stationed has
to do with what their duties are.
. . . .
So I think the security measures being taken
are reasonable. I don’t think they are such that
the jury would think anything of them at all or
think they reflect any message that is being sent
to them regarding the defendant.
The circuit court declined to order the deputies to
sit down and noted:
One additional fact, though, from the
February 15th hearing has to be put on the record
that the [c]ourt security is aware of and that is
although – actually, two additional facts.
Although there was no in-court, during-
court-proceedings outbursts, the day began with
him refusing to leave his cell and they had to
physically dress him. So he wasn’t cooperative
from that point on that day. And that day also
included clear evidence by the sheriff’s
department that he did attempt to tamper with the
stun belt that he was wearing at the time.
So he has demonstrated on prior occasions
where the sheriffs have, in their efforts to
provide their constitutional mandate under the
Code of Virginia to provide courtroom security,
to present him in a way in which he does not
appear in any forms of shackles, he has
77
demonstrated that he’s not necessarily willing to
comply.
. . . .
And the problem with [them] sitting down is
the field of vision. It does affect their field
of vision.
Later that day, Porter noted that, although the
deputies had moved back to stand between 6 and 7 feet
behind him during trial, they were moving to stand within 2
feet whenever Porter stood. On this basis, Porter moved
for a mistrial, which the circuit court denied.
Porter testified in his own defense on the seventh day
of the trial. Prior to testifying, however, Porter renewed
his motion for relief from the positioning of deputies in
the courtroom. The Commonwealth responded that additional
deputies had similarly been present during the testimony of
another witness, Henry Chatman, who was in custody at the
time of his testimony. The Commonwealth argued that
additional security measures were therefore not
particularized to Porter. “It’s [sic] looks like standard
courtroom security measures in any case. I don’t believe
it conveys any prejudicial message to the jury as [Porter]
suggested.”
The circuit court agreed with the Commonwealth:
[S]ecurity exists to the extent that it
exists in this particular case not just because
78
it’s a responsibility of the sheriff to do so,
but because Mr. Porter has throughout his
confinement and court appearances demonstrated
reasons why they need to be concerned. And I
have articulated those for the record previously
and those things have not changed.
Other than that, though, I find that there
is not a sense of overwhelming force; there are
no guns drawn, they are casual, they are sitting.
They are motionless. They are simply in a
position to make sure that nothing happens.
I think that’s reasonable. I don’t think
that in the context of the entire trial that this
is the type of – this reaches the level of
concerns that you have addressed with your case
law that you have submitted to the [c]ourt. And
therefore, though you note it, I’m not going to
direct them to change.
After sentencing, Porter again alleged in a motion for
a new trial that courtroom security had been excessive and
prejudicial. He now assigns error to the adverse rulings
of the circuit court, arguing that the courtroom security
arrangement “negated [his] presumption of innocence” and,
by implying that Porter was dangerous, prejudiced him at
sentencing because the jury’s decision “ultimately rested
on the dangerousness predicate alone.” On appeal, Porter
contends that the decisions of the United States Supreme
Court in Deck v. Missouri, 544 U.S. 622 (2005), Holbrook v.
Flynn, 475 U.S. 560 (1986), and Estelle v. Williams, 425
U.S. 501 (1976) support his argument and require reversal
of the circuit court’s judgment. We disagree.
79
We review Porter’s claim for abuse of discretion by
the circuit court. Frye v. Commonwealth, 231 Va. 370, 381,
345 S.E.2d 267, 276 (1986). However, “[a circuit] court by
definition abuses its discretion when it makes an error of
law. . . . The abuse-of-discretion standard includes
review to determine that the discretion was not guided by
erroneous legal conclusions.” Koon v. United States, 518
U.S. 81, 100 (1996); see also Twine v. Commonwealth, 48 Va.
App. 224, 231, 629 S.E.2d 714, 718 (2006); Auer v.
Commonwealth, 46 Va. App. 637, 643, 621 S.E.2d 140, 143
(2005).
The circuit court misstated the law in response to
Porter’s initial motion on the fifth day of trial when he
opined the control of courtroom security was outside the
court’s purview. However, the court quickly corrected its
misinterpretation the next day when Porter responded to the
circuit court’s invitation to supply legal authority. “The
trial judge has overall supervision of courtroom security.”
Payne v. Commonwealth, 233 Va. 460, 466, 357 S.E.2d 500,
504 (1987). Because of our resolution on the merits, the
circuit court’s initial ruling and mistake in determining
the proper discretion over courtroom security is of no
consequence.
80
“[O]ne accused of a crime is entitled to have his
guilt or innocence determined solely on the basis of the
evidence introduced at trial, and not on grounds of
official suspicion, indictment, continued custody, or other
circumstances not adduced as proof at trial.” Taylor v.
Kentucky, 436 U.S. 478, 485 (1978). Accordingly, courts
are required “to safeguard against ‘the intrusion of
factors into the trial process that tend to subvert its
purpose’” by prejudicing the jury. Woods v. Dugger, 923
F.2d 1454, 1456 (11th Cir. 1991) (quoting Estes v. Texas,
381 U.S. 532, 560 (1962) (Warren, C.J., concurring)).
Naturally, “[t]he actual impact of a particular
practice on the judgment of jurors cannot always be fully
determined. But . . . the probability of deleterious
effects on fundamental rights calls for close judicial
scrutiny.” Estelle, 425 U.S. at 504. That close scrutiny
consists of “look[ing] at the scene presented to jurors and
determin[ing] whether what they saw was so inherently
prejudicial as to pose an unacceptable threat to
defendant's right to a fair trial; if the challenged
practice is not found inherently prejudicial and if the
defendant fails to show actual prejudice, the inquiry is
over.” Holbrook, 475 U.S. at 572. In the case at bar,
Porter has demonstrated no actual prejudice. Accordingly,
81
our review is limited to the question whether the courtroom
security measures permitted by the circuit court over
Porter’s objection were inherently prejudicial.
The Supreme Court decisions in Estelle and Deck are
fundamentally distinguishable from the circumstances of the
case at bar. Estelle concerned a defendant being required
to appear for trial in distinct prison garb. Deck dealt
with a defendant compelled to appear at trial in visible
shackles and other restraints. These circumstances are not
present in Porter’s case and we determine Estelle and Deck
to be factually distinguishable. Holbrook is closer,
factually, to the case at bar, but does not provide the
support Porter envisions.
“Whenever a courtroom arrangement is challenged as
inherently prejudicial . . . the question must be . . .
whether ‘an unacceptable risk is presented of impermissible
factors coming into play.’ ” Holbrook, 475 U.S. at 570
(quoting Estelle, 425 U.S. at 505). The Supreme Court in
Holbrook dealt with the prejudicial effect courtroom
security officers may have on a jury. There, six
defendants were tried jointly upon charges of robbery and
four uniformed state troopers sat immediately behind them,
albeit outside the bar of the court in the first row of the
spectators’ gallery. Holbrook, 475 U.S. at 562. The Court
82
held that, while “[w]e do not minimize the threat that a
roomful of uniformed and armed policemen might pose to a
defendant's chances of receiving a fair trial . . . we
simply cannot find an unacceptable risk of prejudice in the
spectacle of four such officers quietly sitting in the
first row of a courtroom's spectator section.” Holbrook,
475 U.S. at 570-71. “Even had the jurors been aware that
the deployment of troopers was not common practice . . . we
cannot believe that the use of the four troopers tended to
brand respondent in their eyes ‘with an unmistakable mark
of guilt.’ ” Id. at 571. Moreover, the Court expressly
declined to create “a presumption that any use of
identifiable security guards in the courtroom is inherently
prejudicial. In view of the variety of ways in which such
guards can be deployed, we believe that a case-by-case
approach is more appropriate.” Id. at 569.
The Court clearly considered the practical reality
that security presence in any courtroom is usually not
inherently prejudicial:
Jurors may just as easily believe that the
officers are there to guard against disruptions
emanating from outside the courtroom or to ensure
that tense courtroom exchanges do not erupt into
violence. Indeed, it is entirely possible that
jurors will not infer anything at all from the
presence of the guards. If they are placed at
some distance from the accused, security officers
may well be perceived more as elements of an
83
impressive drama than as reminders of the
defendant’s special status. Our society has
become inured to the presence of armed guards in
most public places; they are doubtless taken for
granted so long as their numbers or weaponry do
not suggest particular official concern or alarm.
Id.
Holbrook presents facts different from those of the
case at bar. For example, in the case at bar, Porter was
the only defendant tried; in Holbrook, there were six co-
defendants. Here, the deputies stood inside the bar of the
court; in Holbrook, the troopers sat outside the bar of the
court. On the other hand, Porter was directly guarded not
by four deputies but by only two. Additionally, the bar of
the court was some 12 feet behind Porter, certainly a
considerable distance from the first row of the gallery and
only insignificantly shortened by placing chairs just
inside the bar. The circuit court also found that the
deputies’ field of vision would have been obstructed had
they been seated instead of standing. Given the relatively
cavernous size of the well of the courtroom described by
the dimensions on the record, having two deputies stand
instead of sit, or to be positioned around the courtroom to
help secure it, was not unreasonable or excessive.
Further, even if the deputies’ positions in the
courtroom and standing behind Porter were prejudicial, the
84
security measures were justified. While a defendant may
not, under ordinary conditions, be forced to wear visible
physical restraints because of the possibility of
prejudice, Deck, 544 U.S. at 629, such restraints may be
constitutionally justified in the presence of a valid state
interest, such as that of ensuring the security of the
courtroom and those present in it, Id. at 626-27, or even
that of maintaining the “dignity, order, and decorum” of
court proceedings. Illinois v. Allen, 397 U.S. 337, 343
(1970).
The record in the case at bar shows Porter had both
previously disobeyed the instructions of security officers
and tampered with his concealed restraining device. On
these facts, any prejudicial effect of the deputies
standing behind Porter is overborne by their need to
maintain an adequate field of vision of his hands,
furthering the essential state interest in preserving the
safety of the courtroom’s occupants and ensuring Porter’s
continued detention. While Porter argues that the circuit
court held no hearing and made no specific finding that the
security measures were justified, neither was necessary.
“A trial court may consider various factors in determining”
what security measures may be necessary, and “[t]his
85
determination need not be made upon a formal hearing.”
Frye, 231 Va. at 381-82, 345 S.E.2d at 276.
Therefore, “look[ing] at the scene presented to
jurors,” Holbrook, 475 U.S. at 572, we find that the
security measures endorsed by the circuit court presented
no risk of inherent prejudice. Accordingly, the circuit
court did not abuse its discretion in denying Porter’s
motions.
J. PORTER’S REQUEST TO INSTRUCT THE JURY ON THE DEFINITION
OF “PROBABILITY” WITH REGARD TO FUTURE DANGEROUSNESS
In his seventh assignment of error, Porter contends
that the circuit court erred by not providing to the jury
at the penalty phase of his trial an instruction he
proffered which defined the term “probability” of future
violent conduct based on language in Smith v. Commonwealth,
219 Va. 455, 248 S.E.2d 135 (1978), cert. denied, 441 U.S.
967 (1979).
In Smith, this Court held that the terms
“probability,” “criminal acts of violence,” and “continuing
serious threat to society,” as those terms are used in the
statutory definition of the future dangerousness
aggravating factor 16 are not unconstitutionally vague. Id.
16
With regard to “future dangerousness,” Code § 19.2-
264.2 states that a sentence of death can be imposed only
if a court or jury finds “a probability that the defendant
86
at 477, 248 S.E.2d at 148. We went on to say the following
about those terms:
In our view, [the statutory language] is
designed to focus the fact-finder’s attention on
prior criminal conduct as the principal predicate
for a prediction of future “dangerousness.” If
the defendant has been previously convicted of
“criminal acts of violence”, i.e., serious crimes
against the person committed by intentional acts
of unprovoked violence, there is a reasonable
“probability”, i.e., a likelihood substantially
greater than a mere possibility, that he would
commit similar crimes in the future. Such a
probability fairly supports the conclusion that
society would be faced with a “continuing serious
threat.”
Id. at 478, 248 S.E.2d at 149.
The circuit court refused Porter’s proffered jury
instruction which defined “probability” and “reasonable
likelihood,” as follows:
A. A “probability” means a reasonable likelihood
that the defendant will actually commit
intentional acts of unprovoked violence in the
future.
B. “A reasonable likelihood,” in turn, means a
likelihood substantially greater than a mere
possibility.
Porter argues that pursuant to Ring v. Arizona, 536
U.S. 584, 604 (2002) (finding that aggravating factors
function as the equivalent of an offense element and need
to be found by a jury) and Bell v. Cone, 543 U.S. 447, 454
would commit criminal acts of violence that would
constitute a continuing serious threat to society.”
87
n.6 (2005) (raising without deciding whether, in light of
Ring, an appellate court could cure a vague aggravating
factor by applying a narrower construction), the proffered
instruction should have been given to the jury. Because
the language in Smith affects the jury’s determination of
the future dangerousness aggravating factor, Porter
contends that the instruction should have been given in
order to ensure that the jury properly found that
aggravating factor in his case.
We find no error in the circuit court’s refusal of
Porter’s proffered jury instruction. Initially, we note
that this Court has previously determined that Virginia’s
statutes regarding the imposition of the death penalty do
not suffer from the same issues that were addressed in Ring
because the aggravating factors are submitted for the jury
to determine. Muhammad v. Commonwealth, 269 Va. 451, 491,
619 S.E.2d 16, 39 (2005), cert. denied, 547 U.S. 1136
(2006). Porter’s contention that the language from Smith
should have been given to the jury rests on his
interpretation that the footnote from Bell implies that any
narrowing of the language of a “vague aggravating” factor
provided by a higher court should be given to the jury.
Bell v. Cone, 543 U.S. at 454 n.6 (emphasis added). While
the Supreme Court has yet to elaborate upon its comment in
88
the Bell footnote, Porter’s argument appears to rest on the
presumption that the aggravating factor in question is
“vague.” This Court has consistently held that the future
dangerousness aggravating factor is not unconstitutionally
vague. Juniper, 271 Va. at 388, 626 S.E.2d at 401; Winston
v. Commonwealth, 268 Va. 564, 579, 604 S.E.2d 21, 29
(2004), cert. denied, 546 U.S. 850 (2005); Jackson v.
Commonwealth, 267 Va. 178, 205-06, 590 S.E.2d 520, 535-36,
cert. denied, 543 U.S. 891 (2004). Accordingly, no
additional instructions were needed in order for the jury
to properly understand and determine the future
dangerousness aggravating factor under the other
instructions given to the jury.
K. STATUTORY REVIEW UNDER CODE § 17.1-313
In his final assignment of error, Porter contends the
circuit court erred by “imposing the sentence of death
under the influence of passion, prejudice and other
arbitrary factors, and by imposing a sentence that is
excessive and/or disproportionate to the penalty imposed in
similar cases.” This assignment of error closely parallels
the language in Code § 17.1-313(C), which sets out the
mandatory review of a death sentence this Court must
undertake under that statute. Accordingly, we consider
89
Porter’s assignment of error and our statutory review
together.
1. CODE § 17.1-313(C)(1): PASSION, PREJUDICE,
OR OTHER ARBITRARY FACTORS
Porter argues that his sentence of death was imposed
under the influence of four arbitrary factors, which are
also four of the assignments of error in his appeal. These
are the circuit court’s denial of the Prison Expert Motion,
comments made by the circuit court during the closing
argument regarding the statutory term “society,” the
refusal of Porter’s proffered jury instruction based on the
language from Smith, 219 Va. at 477, 248 S.E.2d at 148, and
the “prejudicial positioning of the courtroom deputies
standing over the defendant throughout the trial.” Earlier
in this opinion we determined that the “errors” Porter
recites here were not reversible error or were waived.
Waye v. Commonwealth, 219 Va. 683, 704, 251 S.E.2d 202, 214
(1979) (stating, in the consideration of whether the jury
acted under undue passion or prejudice in the conviction of
a defendant for capital murder, "[i]n other parts of this
opinion, we have considered each matter of which the
defendant has complained. We have not found reversible
error in any individual instance, and we do not now
90
conclude that the cumulative effect of the alleged errors
was to produce a sentence influenced by passion.")
Nonetheless, this Court is mandated, pursuant to Code
§ 17.1-313(C)(1), to review the record in order to
determine whether Porter’s sentence of death “was imposed
under the influence of passion, prejudice or any other
arbitrary factor.” We have conducted that review and we
find nothing which shows that the jury failed to fully
consider the evidence presented both at trial and at
sentencing or that the jury was otherwise improperly
influenced to sentence Porter to death. Accordingly, we
find that the imposition of the death sentence was not
imposed as a result of passion, prejudice, or any other
arbitrary factor.
2. EXCESSIVE AND DISPROPORTIONATE SENTENCE
Porter’s assignment of error states that the death
sentence he received was “excessive and/or disproportionate
to the penalty imposed in similar cases.” Even though
Porter has failed to present any argument in support of
this assignment of error, this Court is required to
consider the issue pursuant to Code § 17.1-313(C)(2). Gray
v. Commonwealth, 274 Va. 290, 303, 645 S.E.2d 448, 456
(2007); Juniper v. Commonwealth, 271 Va. 362, 432, 626
S.E.2d 383, 427 (2006).
91
The proportionality review this Court is required to
undertake is not designed to "insure complete symmetry
among all death penalty cases." Muhammad v. Commonwealth,
269 Va. 451, 532, 619 S.E.2d 16, 63 (2005) (quoting Orbe v.
Commonwealth, 258 Va. 390, 405, 519 S.E.2d 808, 817 (1999),
cert. denied, 529 U.S. 1113 (2000)). Rather, the goal of
the review is to determine if a sentence of death is
“aberrant.” Id. This review also allows the Court to
determine whether the death sentence has been imposed by
other courts or juries for similar crimes, “considering
both the crime and the defendant.” Lovitt v. Commonwealth,
260 Va. 497, 518, 537 S.E.2d 866, 880 (2000).
In conducting such a review, we have focused on
capital murder cases in which a law enforcement officer was
killed while performing his official duties and a sentence
of death was imposed after the future dangerousness
aggravating factor was found. See e.g. Bell v.
Commonwealth 264 Va. 172, 563 S.E.2d 695 (2002), cert.
denied, 537 U.S. 1123 (2003); Eaton v. Commonwealth, 240
Va. 236, 397 S.E.2d 385 (1990), cert. denied, 502 U.S. 824
(1991); Delong v. Commonwealth, 234 Va. 357, 362 S.E.2d 669
(1987), cert. denied, 485 U.S. 929 (1988); Evans v.
Commonwealth, 228 Va. 468, 323 S.E.2d 114 (1984), cert.
denied, 471 U.S. 1025 (1985). In addition, this Court has
92
also reviewed similar cases in which a life sentence was
imposed pursuant to Code § 17.1-313(E). Based on this
review, we find that Porter’s sentence was not excessive or
disproportionate to sentences imposed in capital murder
cases for comparable crimes.
CONCLUSION
For the foregoing reasons, we find no reversible error
in the judgment of the circuit court. Furthermore, we find
no reason to set aside the sentence of death. We will
therefore affirm the judgment of the circuit court.
Affirmed.
JUSTICE KEENAN, dissenting.
I respectfully dissent. I join in Justice Koontz’s
analysis and conclusion that this Court’s holding permits a
defendant to be executed under void judgments. In my view,
in the absence of subject matter jurisdiction, Porter
effectively was not tried for these offenses and, thus,
ultimately will be executed based solely on the indictments
that were returned against him. Because the conclusion I
reach requires reversal of the void judgments, I would not
address any other issue in the case and would remand the
case for a new trial.
93
JUSTICE KOONTZ, dissenting.
I respectfully dissent. Today, in my view, a majority
of this Court permits a capital murder conviction and death
sentence to be imposed on Thomas Alexander Porter pursuant
to void judgments. I cannot join in that decision. I do
not take issue with the majority’s conclusion that the
evidence adduced at Porter’s trial was more than sufficient
to establish that Porter committed the murder of Norfolk
Police Officer Stanley Reaves. Nor do I take issue with
the majority’s conclusion that the death sentence in this
case, properly obtained, would not be excessive or
disproportionate to the penalty imposed in similar cases
when reviewed under Code § 17.1-313.
The undisputed procedural facts in this case are no
less than a Gordian knot of vague, conflicting, and
contradictory orders entered with respect to the change of
venue and the subsequent conduct of the trial and the
sentencing proceeding. They are remarkable in that they
apparently have not occurred in prior cases this Court has
been called upon to review. It is unnecessary, however, to
repeat in detail all of the procedural facts which are
adequately recounted by the majority. The focus here is
upon the dispositive procedural facts as they implicate the
pertinent statutes within the applicable statutory scheme.
94
Porter was indicted by a grand jury in the Circuit
Court of the City of Norfolk (Norfolk Circuit Court) for
the capital murder of Officer Reaves. 1 Porter was
subsequently brought to trial on that indictment in the
Norfolk Circuit Court in accord with the mandate of Code
§ 19.2-244 which provides that “[e]xcept as otherwise
provided by law, the prosecution of a criminal case shall
be had in the county or city in which the offense was
committed.” On October 2, 2006, the Norfolk Circuit Court
entered an order providing “that the trial of [Porter’s
case] be transferred to the Circuit Court of the Fourth
Judicial Circuit located in Arlington, Virginia.” This
order is vague and conflicting. There is no Fourth
Judicial Circuit Court located in Arlington County; the
Fourth Judicial Circuit is limited to the City of Norfolk.
Code §§ 17.1-500, -506(4). Thus, the majority is left to
observe that “[i]t is unclear from the circuit court’s
order whether it was transferring the place of trial with
the Norfolk Circuit Court sitting in Arlington [County] or
whether it was intended that the trial be conducted in
1
Porter was also indicted, tried, and convicted of use
of a firearm in the commission of a felony and grand
larceny. The views expressed in this dissent are equally
applicable to those convictions in the context of the
validity of the underlying judgments.
95
Arlington [County] as a trial in [the Circuit Court of
Arlington County].”
Code § 19.2-251, however, is quite clear. This
statute which specifically addresses a change in venue, in
pertinent part, provides that: “[a] circuit court may, on
motion of the accused or of the Commonwealth, for good
cause, order the venue for the trial of a criminal case in
such court to be changed to some other circuit court.”
(Emphasis added). This statute does not purport to permit
the Norfolk Circuit Court to transfer itself to Arlington
County; it plainly permits the Norfolk Circuit Court in
this case to transfer the trial of the case to the Circuit
Court of Arlington County (Arlington County Circuit Court). 2
Indeed, that is precisely what occurred in Porter’s case as
reflected by the subsequent and significant “felony trial
orders” which were captioned, as the majority notes, “In
the Circuit Court of the County of Arlington.” Clearly,
Porter was tried and convicted in the Arlington County
2
Code § 17.1-114 permits the circuit court under
circumstances not applicable here to hold its sessions at
locations other than at its designated courthouse within
the geographical limits of its circuit. This statute, when
applicable, further provides that “[e]xcept as provided in
this section or as agreed by all parties to an action, no
session of a circuit court shall be held outside the
geographical limits of the county or city of which it is
the court.”
96
Circuit Court. A March 7, 2007 order entered by the
Arlington County Circuit Court reflects the Arlington
County jury’s guilty verdict on the charge of capital
murder, and a March 14, 2007 order entered by that court
reflects the jury’s sentence of death.
The March 14, 2007 order entered by the Arlington
County Circuit Court also granted Porter’s motion “to refer
this matter to the Probation Office for the Circuit Court
of Norfolk, Virginia” and continued the case to July 16,
2007 “in the Circuit Court of the City of Norfolk.”
Thereafter, by order entered on July 18, 2007 in the
Norfolk Circuit Court, Porter was sentenced to death in
accord with the Arlington County jury verdict.
Finally, it is undisputed that Judge Charles D.
Griffith, Jr., a judge of the Norfolk Circuit Court,
presided over all the proceedings conducted in the Norfolk
Circuit Court as well as those in the Arlington County
Circuit Court. Judge Griffith, however, was never
designated, pursuant to Code § 17.1-105, to preside over
Porter’s trial in the Arlington County Circuit Court.
Considering these undisputed procedural facts, it
becomes readily apparent that Porter was tried and
convicted of capital murder in one circuit court and
sentenced to death in another, separate circuit court. The
97
resolution of the issue of the “subject matter
jurisdiction” of these courts perhaps is not so readily
apparent and explains the considerable efforts exerted by
the majority to resolve that issue.
The foundation upon which the majority builds its
analysis is its interpretation and application of Code
§ 17.1-513. This statute generally provides the civil and
criminal jurisdiction of circuit courts and, in pertinent
part, provides that “[t]hey shall also have original
jurisdiction of all indictments for felonies and of
presentments, informations and indictments for
misdemeanors.” (Emphasis added). The majority interprets
this provision to mean that in Porter’s case “both the
Norfolk Circuit Court and the Arlington Circuit Court had
subject matter jurisdiction for the trial of the charges
against Porter.” Without this foundation, the balance of
the majority’s analysis simply unravels.
Code § 17.1-513 is the statute that indeed establishes
the potential subject matter jurisdiction of all the
circuit courts in this Commonwealth. This statute grants
the authority to adjudicate certain classes of cases,
including indictments for felonies. See Morrison v.
Bestler, 239 Va. 166, 169, 387 S.E.2d 753, 755 (1990).
Code § 17.1-513, however, does not resolve the issue
98
whether a particular circuit court has subject matter
jurisdiction over a particular criminal felony case.
Surely, it would not be seriously contended that because
all circuit courts are authorized by Code § 17.1-513 to try
all indictments for felonies that an accused can be
indicted for a felony committed in one jurisdiction in the
Commonwealth and yet tried in another in the absence of
additional statutory authority permitting that to occur.
In this context, it should be evident that Code § 17.1-513
addresses only the potential jurisdiction of all circuit
courts to try felony cases.
The statutory scheme implicated by the procedural
facts in this case further undermines the foundation of the
majority’s analysis. Code § 19.2-244, in pertinent part,
provides that “[e]xcept as otherwise provided by law, the
prosecution of a criminal case shall be had in the county
or city in which the offense was committed.” Thus, in
Porter’s case the prosecution of the criminal charge
against him was mandated to occur initially in the City of
Norfolk. And, only the Norfolk Circuit Court initially had
jurisdiction to try that case pursuant to Code § 19.2-239
which provides that circuit courts “shall have exclusive
original jurisdiction for the trial of all presentments,
99
indictments and informations for offenses committed within
their respective circuits.” (Emphasis added).
Porter requested a change of venue in this case, and
the Norfolk Circuit Court granted that request as it was
authorized to do pursuant to Code § 19.2-251. However, as
noted above, this statute expressly authorized the Norfolk
Circuit Court to transfer venue “to some other circuit
court.” Code § 19.2-253 then provides that “[t]he clerk of
the court which orders a change of venue shall certify
copies . . . of the record of the case to the clerk of the
court to which the case is removed, . . . and such court
shall proceed with the case as if the prosecution had been
originally therein.” This statutory scheme makes clear
that upon a change of venue the jurisdiction of the circuit
court to which the case is transferred is statutorily
invoked and that court then has the “exclusive original
jurisdiction” to try criminal offenses “as if the
prosecution had been originally therein.” Thus, the
Arlington County Circuit Court had subject matter
jurisdiction to try Porter’s case; the Norfolk Circuit
Court no longer had such jurisdiction. In short, Code
§ 17.1-513 simply provides no basis to conclude, as the
majority does in this case, that both circuit courts had
100
subject matter jurisdiction for the trial of the felony
charges against Porter.
While the Arlington County Circuit Court exercised its
jurisdiction to conduct the guilt determination phase of
Porter’s capital murder trial, it is undisputed that Porter
was sentenced to death by the Norfolk Circuit Court. There
is no statutory provision which permits one circuit court
to try a capital murder case and for another circuit court
to impose the sentence of death recommended by the trial
jury in the initial court. Code § 19.2-264.4 contemplates
that only one circuit court conduct the trial and
sentencing proceedings. Moreover, even under the
majority’s interpretation of Code § 17.1-513 that all
circuit courts have jurisdiction to try a capital murder
case, Code § 19.2-251 does not purport to authorize the
circuit court that conducts the guilt phase of a capital
murder trial to transfer the sentencing phase of the trial
to another circuit court. Therefore, in Porter’s case the
sentence of death imposed by the Norfolk Circuit Court was
void and would require that judgment to be reversed and
further require a remand to the Arlington County Circuit
Court for a new sentencing hearing. See Code § 19.2-
264.3(C).
101
But then there remains the issue of the authority of
Judge Griffith in this case to preside over the trial
itself in the Arlington County Circuit Court. While the
majority is ambivalent over whether a designation pursuant
to Code § 17.1-105 was required in this case, it concludes
that “a missing order of designation would only have
affected the circuit court judge’s authority to act in the
exercise of territorial jurisdiction.” Thus, the majority
disposes of the issue by concluding that it is waived
because Porter did not raise the issue at his trial.
To reach this conclusion the majority goes to some
length to ultimately overrule our prior decision in Gresham
v. Ewell, 85 Va. (10 Hans.) 1, 6 S.E. 700 (1888), where
this Court held that a judgment was “null and void” because
a judge from another jurisdiction rendered a judgment
without proper designation to conduct court in the
jurisdiction where trial occurred. 85 Va. at 2, 6 S.E. at
701. Until today, Ewell has been the law of this
Commonwealth and I am unpersuaded by the majority’s
analysis which appears to be premised on little more than a
change of opinion by the present majority since Ewell was
decided.
In my view, that analysis is not persuasive. In
Porter’s case, the judge who presided over his trial in the
102
Arlington County Circuit Court had no authority to do so.
It is not simply a matter, however, that the judge had no
authority to try a case in a jurisdiction other than the
jurisdiction for which he was commissioned to serve as a
circuit judge. In this case, because Judge Griffith was
not designated as a judge of the Arlington County Circuit
Court, Porter was tried in a court without an authorized
presiding judge; indeed, he was tried in a court presided
over by a person who was in essence a stranger to that
court. As a result, and consistent with the rationale of
Ewell, the Arlington County Circuit Court, the trial court,
was not authorized to exercise subject matter jurisdiction
over the guilt phase of Porter’s case and the court’s
conviction order was therefore void and not merely
voidable. Executing a defendant in reliance upon a void
order of conviction is, in my view, the ultimate denial of
due process. Accordingly, I would not merely reverse
Porter’s sentence of death but I would reverse Porter’s
convictions and remand the case for a new trial if the
Commonwealth be so advised.
Obviously, I need go no further in my analysis of
Porter’s case. Nevertheless, I also dissent from the
majority’s determination that Porter was not entitled to
have the trial court appoint Dr. Cunningham as an expert to
103
assist Porter in establishing that he would not present a
serious threat to society if he were to be sentenced to
life in prison without possibility of parole. The majority
concludes that Porter did not establish a “particularized
need” to have an expert assist him in presenting evidence
to respond to the Commonwealth’s contention that Porter was
subject to the death penalty because he remained a
continuing danger to society.
Under Virginia’s statutory scheme, capital murder as
defined in Code § 18.2-31 constitutes a Class 1 felony
punishable under Code § 18.2-10, as pertinent here, only by
either a sentence of death or life imprisonment. A
defendant who commits a capital murder after January 1,
1995 and is sentenced to imprisonment for life is not
eligible for parole, and the jury is so instructed. Code
§ 19.2-264.4(A); Yarbrough v. Commonwealth, 258 Va. 347,
374, 519 S.E.2d 602, 616 (1999). A defendant convicted of
capital murder in Virginia becomes eligible for the death
penalty only if the Commonwealth proves beyond a reasonable
doubt that
there is a probability based upon evidence of the
prior history of the defendant or of the
circumstances surrounding the commission of the
offense of which he is accused that he would
commit criminal acts of violence that would
constitute a continuing serious threat to
society, or that his conduct in committing the
104
offense was outrageously or wantonly vile,
horrible or inhuman, in that it involved torture,
depravity of mind or aggravated battery to the
victim.
Code § 19.2-264.4(C)
Significantly, under this statutory scheme a finding
of one or both of these aggravating factors does not
mandate the imposition of the death penalty. Rather, the
jury is only “limited to a determination as to whether the
defendant shall be sentenced to death or life
imprisonment.” Code § 19.2-264.4(A). “In the event the
jury cannot agree as to a penalty, the court shall . . .
impose a sentence of imprisonment for life.” Code § 19.2-
264.4(E).
Once a defendant has been convicted of capital murder,
the obviously critical issue to be determined is whether
that defendant shall be sentenced to death or life
imprisonment without possibility of parole. Under
Virginia’s statutory scheme, the initial focus of that
determination falls upon whether the Commonwealth proves
beyond a reasonable doubt either of the aggravating factors
that makes the defendant eligible for the death sentence.
On such a critical issue, there can be no question but that
the defendant has a fundamental right to introduce
appropriate evidence to rebut the Commonwealth’s evidence
105
regarding these aggravating factors. See, e.g., Gardner v.
Florida, 430 U.S. 349, 362 (1977) (holding that petitioner
was denied due process of law when the death sentence was
imposed, at least in part, on the basis of “information
which he had no opportunity to deny or explain”); see also,
Skipper v. South Carolina, 476 U.S. 1, 8 (1986)(death
sentence overturned where defendant was denied right to
introduce evidence regarding his good behavior in jail).
Pertinent to Porter’s case, the Supreme Court in Skipper
noted that “[w]here the prosecution specifically relies on
a prediction of future dangerousness in asking for the
death penalty, it is not only the rule . . . that requires
that the defendant be afforded an opportunity to introduce
evidence on this point; it is also the elemental due
process requirement.” Id. at 5 n.1.
In this case, the jury did not find the vileness
aggravating factor had been proven by the Commonwealth’s
evidence and, thus, the jury’s decision to impose the death
sentence rested solely on its determination that Porter
presented a further danger to society sufficient to warrant
that penalty. Accordingly, if Porter was denied due
process by the trial court’s refusal to appoint an expert
who would have offered testimony to rebut the
Commonwealth’s assertions of future dangerousness, then
106
unquestionably the sentence of death must be vacated. The
Commonwealth does not contend that Porter was financially
able to independently employ such an expert.
Recently, in Juniper v. Commonwealth, 271 Va. 362, 626
S.E.2d 383, cert. denied, ___ U.S. ___, 127 S.Ct. 397
(2006), this Court held that the jury’s “determination of
future dangerousness revolves around an individual
defendant and a specific crime.” Id. at 425, 626 S.E.2d at
423. The Court explained that in admitting expert
testimony as pertinent in rebuttal of the Commonwealth’s
attempt to prove future dangerousness, “such evidence
should ‘concern the history or experience of the
defendant.’ ” Id. at 425-26, 626 S.E.2d at 423. (quoting
Cherrix v. Commonwealth, 257 Va. 292, 310, 513 S.E.2d 642,
653, cert. denied, 528 U.S. 873 (1999)). The Court has
further explained that only “evidence peculiar to a
defendant's character, history and background is relevant
to the future dangerousness inquiry.” Bell, 264 Va. at
201, 563 S.E.2d at 714. In accordance with this reasoning,
the Court has previously rejected expert testimony
regarding generalized “daily inmate routine [and] general
prison conditions.” Burns v. Commonwealth, 261 Va. 307,
338, 541 S.E.2d 872, 892, cert. denied, 534 U.S. 1043
(2001).
107
Applying these principles, the Court has upheld a
trial court’s decision to deny the appointment of a risk
assessment expert where the testimony proffered was not
sufficiently specific and particularized to the defendant
to rebut the Commonwealth’s assertions that the defendant
would pose a future danger to society. Accordingly, in
Juniper, this Court upheld a trial court’s rejection of
expert testimony where
[n]either the actual proffer, counsel’s argument,
nor [the expert’s] explanations . . . was
“specific to [the defendant]”. . . . [The
expert] offered nothing to the trial court to
support his opinion as being based on [the
defendant’s] individual characteristics that
would affect his future adaptability in prison
and thus relate to a defendant-specific
assessment of future dangerousness.
Id. at 427, 626 S.E.2d at 424 (internal citations omitted).
Similarly, in Burns, 261 Va. at 340, 541 S.E.2d at 893, the
Court rejected the appointment of a risk assessment expert
to rebut the Commonwealth’s future dangerousness assertions
where the expert’s testimony failed to “focus . . . on the
particular facts of [the defendant’s] history and
background, and the circumstances of his offense.”
In my view, Dr. Cunningham’s proffered testimony
regarding the question of Porter’s future dangerousness is
sufficiently specific and particularized with respect to
Porter’s individual characteristics, history and
108
background, and past offenses. In the affidavit proffered
by Porter in support of his motion for Dr. Cunningham’s
appointment, Dr. Cunningham explained that his
“individualized assessment” evaluated a number of factors
in determining whether a particular defendant posed a
future danger to society. The affidavit detailed the
typical scientific basis and methodology used by the doctor
in assessing a particular defendant, including “his age,
his level of educational attainment . . . other features
and characteristics regarding him [and] particularized to
him based on demographic features, adjustment to prior
incarceration, offense and sentence characteristics, and
other factors.” It also included information regarding
how, if appointed, Dr. Cunningham would determine the
setting and time span in which Porter’s violent conduct
would be likely to occur, the base rate of serious violence
in that particular setting, and the individual
characteristics and prior record of Porter in relation to
the likelihood of serious violence in the prison setting.
Thus, I am persuaded that Dr. Cunningham’s proffered
testimony was relevant to the issue of Porter’s future
dangerousness because it was sufficiently “specific” to
Porter based on Porter’s individual characteristics, and
focused “on the particular facts of [Porter’s] history and
109
background, and the circumstances of his offense.”
Juniper, 271 Va. at 426, 626 S.E.2d at 423; see also Burns,
261 Va. at 340, 541 S.E.2d at 893. Accordingly, even if I
could agree with the majority that the failure to establish
proper jurisdiction in this case was merely a failure of
“territorial” jurisdiction and the objection thereto was
waived by Porter’s failure to raise the issue, I would
nonetheless hold that Porter was denied due process because
he was denied the opportunity to present competent,
relevant expert testimony to rebut the Commonwealth’s
assertion that he posed a continuing danger to society.
And on this ground, I would vacate the sentence of death
imposed on Porter and remand the case for a new sentencing
proceeding in which Porter would have the benefit of Dr.
Cunningham’s testimony. 3
Finally, I am compelled to warn that the various
issues raised in this case may tend to exemplify certain
aspects of the conduct of capital murder trials in this
Commonwealth that slowly, but inexorably, will erode public
confidence that the death penalty is being imposed in a
3
I have not addressed the courtroom security issue
raised by Porter, though I am troubled by the possibility
that excessive security measures may have created prejudice
against Porter in the sentencing phase of his trial.
Accordingly, I do not join in the majority’s decision to
affirm on that issue.
110
fair and consistent manner. Surely, the citizens of
Virginia expect, and have the right to expect, that the
courts of the Commonwealth will conduct death penalty
trials with due regard for the constitutional and statutory
safeguards that are meant to ensure that the maximum
penalty will be imposed only in those instances where it is
truly necessary to advance the cause of justice and secure
the lives and welfare of the people. Moreover, it should
be expected, and justice demands, that even in cases where
a sentence of death may be appropriate, its imposition will
occur through a strict and faithful adherence to due
process of law. If the courts empowered to sit in judgment
over those accused of typically heinous crimes fail to take
the greatest care in assuring the fairness of the
proceedings that result in the imposition of the death
penalty, then it must inevitably follow in time that the
death penalty statutes of this Commonwealth will no longer
pass constitutional muster. For now, however, I take some
comfort in the conclusion that the manner in which Porter’s
case was conducted is atypical of the manner in which our
trial courts conduct capital murder trials.
111