Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Lemons, JJ., and Whiting, S.J.
PAUL WARNER POWELL
OPINION BY
v. Record Nos. 002242 & 002243 JUSTICE LAWRENCE L. KOONTZ, JR.
June 8, 2001 *
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Herman A. Whisenant, Jr., Judge
In these appeals, we review the capital murder conviction,
related convictions, and sentence of death imposed upon Paul
Warner Powell. 1
I. THE CRIMES
We will review the evidence in the light most favorable to
the Commonwealth, the party prevailing below. Clagett v.
Commonwealth, 252 Va. 79, 84, 472 S.E.2d 263, 265 (1996), cert.
denied, 519 U.S. 1122 (1997).
Powell was acquainted with Stacey Lynn Reed (Stacey) for
two and a half years prior to the commission of the crimes in
question. Kristie Erin Reed (Kristie), Stacey’s younger sister,
*
The April 20, 2001 opinion was withdrawn when a petition
for rehearing was granted June 8, 2001.
1
Powell initially indicated a desire to waive his right to
appeal his convictions and death sentence. By order dated
October 26, 2000, this Court remanded the case to the trial
court for a determination of whether Powell’s waiver of his
right to appeal was voluntarily and intelligently made. During
the trial court’s hearing on that matter, Powell withdrew his
waiver.
described her sister and Powell as “[f]riends.” Powell, who was
20 years old at the time of the murder, had wanted to date
Stacey, who was 16 years old, but recognized that she was
underage and he “could go to jail for that.”
Powell, a self-avowed “racist and white supremacist,” was
aware that Stacey, who was white, was dating Sean Wilkerson, who
is black. Wilkerson had recently moved to another locality, but
he and Stacey remained in contact. Stacey was a member of her
high school’s Junior Reserve Officer’s Training Corps and
planned to attend a military ball with Wilkerson.
Just before noon on January 29, 1999, Stacey arrived home
from school early, having completed her examinations that were
being given that day. Powell was waiting for her at her home
when she arrived. When Powell learned that Robert Culver, a
friend of the girls’ mother, would be home shortly for lunch,
Powell left and returned at about 12:45 p.m., after Culver had
left. When Powell returned, he was armed with a “survival”
knife, a “butterfly” knife, a box cutter, and a 9-millimeter
pistol.
Stacey was talking to Wilkerson on the telephone. After
Stacey ended the telephone conversation, Powell confronted her
about her relationship with Wilkerson. He demanded that Stacey
2
end her relationship with Wilkerson. According to Powell, he
and Stacey argued, and the argument grew into a struggle.
Powell drew the survival knife from his belt and Stacey “got
stuck.” Powell denied stabbing Stacey deliberately. The
struggle continued briefly until Stacey collapsed on the floor
in her sister’s bedroom.
Although Powell did not know whether Stacey was still
alive, he made no effort to determine her condition or call for
medical assistance. Powell “wandered around the house, got some
iced tea, had a cigarette.” Kristie arrived home from school
shortly after 3 p.m. and was met at the door of the home by
Powell. Powell told her that Stacey was in her room, but
moments later Kristie discovered her sister’s body in Kristie’s
bedroom. She dropped her schoolbooks and began to cry.
Powell ordered Kristie to go to the basement. Kristie, who
knew that Powell was usually armed, complied because she “didn’t
want to die.” In the basement, Powell ordered Kristie to remove
her clothes and to lie on the floor. Powell then raped Kristie,
and she “begg[ed] him not to kill her.” Powell later admitted
that he knew that Kristie, who was 14 years old at the time of
the rape, had been a virgin.
While Powell and Kristie were in the basement, Mark Lewis,
a friend of Kristie, came to the house and knocked on the door.
When Powell heard the knock, he tied Kristie’s legs together and
3
tied her hands behind her back with shoelaces he cut from her
athletic shoes. Powell then dressed and went upstairs.
While Powell was upstairs, Kristie managed to loosen the
bonds on her hands and attempted to “scoot across the floor to
hide” under the basement steps. Hearing Powell coming back to
the basement, she returned to the position on the floor where he
had left her. Powell then strangled Kristie with a shoelace and
she lost consciousness. While she was unconscious, Powell
stabbed Kristie in the abdomen and slit her wrists and throat.
Powell returned upstairs, searching for “anything worth
taking.” He fixed another glass of iced tea, which he took with
him when he left the home a short time later. Powell went to a
friend’s house and then drove with the friend to the District of
Columbia to buy crack cocaine.
Kristie regained consciousness sometime after Powell had
left her home. About 4:10 p.m., she heard Culver return home,
and she called out his name. Culver discovered Kristie in the
basement, called the 911 emergency response telephone number,
and began rendering first aid to her. He later discovered
Stacey’s body upstairs. Shortly thereafter, paramedics arrived.
In response to a question from one of them, Kristie identified
Powell as her attacker. Powell was arrested later that day at
the home of his friend’s girlfriend, where he and the friend had
gone after buying drugs.
4
Kristie was transported by helicopter to Inova Fairfax
Hospital where she received treatment for her injuries. It was
ultimately determined that the wounds to her throat and abdomen
each came within one centimeter of severing a major artery which
likely would have caused her death.
An autopsy revealed that Stacey had died from a knife wound
to the heart. The medical examiner testified that there was a
single entrance wound and two exit wounds indicating that the
knife had been withdrawn, at least partially, and then
reinserted into the heart. One wound path pierced the left
ventricle and the other went through both the left and right
ventricles, exiting the heart at the back of the right
ventricle.
Stacey’s body also exhibited a number of bruises on the
head, chest, abdomen, back, arms, and legs, abrasions on the
face, a stab wound to the back, and a cut and scrapes on the
left forearm. The autopsy further revealed that Stacey had been
struck on the head with sufficient force to cause bleeding
inside her scalp and in the membranes surrounding her brain
prior to death. These injuries were not consistent with Stacey
merely having fallen during a struggle.
The DNA profile obtained from the blood found on Powell’s
survival knife was consistent with the DNA profile of Stacey’s
blood. The DNA profile obtained from sperm fractions from swabs
5
taken from Kristie’s vagina and perianal area was the same
profile as that obtained from Powell’s drawn blood sample.
While in jail, Powell wrote letters to friends in which he
admitted having committed the murder, rape, and attempted murder
because of Stacey’s relationship with a black man. He further
claimed that he had planned to kill Stacey’s family and steal
the family’s truck. Powell also wrote to a female friend and
asked her to “get one of [her] guy friends . . . to go to a pay
phone and call Kristie and tell her [that] she better tell the
cops she lied to them and tell her [that] she better not testify
against me or she’s gonna die.”
Powell told another inmate that he had become angry with
Stacey when she refused to have sex with him after talking to
Wilkerson. Powell told the inmate that he stabbed Stacey twice
and that when he attempted to cut Kristie’s throat, his knife
was too dull, “[s]o he started stepping on her throat trying to
stomp her throat.” To another inmate, Powell described Stacey’s
killing as a “human sacrifice” and expressed satisfaction in
having raped a virgin.
II. PROCEEDINGS
A. Pre-Trial
On May 3, 1999, Powell was indicted for the capital murder
of Stacey in the commission of a robbery and/or attempted
robbery, Code § 18.2-31(4), attempted capital murder of Kristie
6
in the commission of rape, Code § 18.2-31(5), abduction of
Kristie with intent to defile, Code § 18.2-48(ii), and the rape
of Kristie, Code § 18.2-61. 2 Powell filed a motion to have the
capital murder and death penalty statutes declared
unconstitutional and to strike the capital murder and attempted
capital murder indictments. In a supporting memorandum, Powell
raised several challenges to the constitutionality of the
statutes, which he reasserts in these appeals and which will be
discussed later in this opinion. The trial court denied the
motion.
On September 14, 1999, the Commonwealth filed a motion
pursuant to Code § 19.2-231 to amend the indictment for the
capital murder of Stacey to also charge capital murder “during
the commission of or subsequent to rape and/or attempted rape
and/or sodomy and/or attempted sodomy.” Powell objected to the
proposed amendment, asserting that it would change the nature or
character of the offense charged. The trial court permitted the
amendment to the indictment.
2
Powell was also indicted for grand larceny in violation of
Code § 18.2-95 in connection with the theft of a weapon in an
unrelated incident, was convicted of that crime, and sentenced
to two years imprisonment. Powell does not directly challenge
that conviction in these appeals. Powell was also indicted for
robbery and attempted robbery in violation of Code § 18.2-58 and
three counts of use of a firearm in violation of Code § 18.2-
53.1. He was acquitted of these crimes.
7
On May 5, 1999, Powell made a motion for the appointment of
a mental health expert to assist in his defense pursuant to Code
§ 19.2-264.3:1. The trial court granted this motion on May 14,
1999. Powell subsequently advised the Commonwealth that he
intended to use the expert to provide psychiatric evidence in
mitigation during the sentencing phase of the trial, if
necessary.
On January 5, 2000, the Commonwealth made a motion to have
Powell examined by its mental health expert pursuant to Code
§ 19.2-264.3:1(F)(1). By order entered on February 24, 2000,
the trial court appointed Dr. Stanton E. Samenow, a clinical
psychologist, to evaluate Powell on behalf of the Commonwealth.
The order noted Powell’s intention to present psychiatric
evidence in mitigation and directed Dr. Samenow to evaluate
Powell’s sanity at the time of the offense pursuant to Code
§§ 19.2-168.1 and 19.2-169.5.
On March 8, 2000, Dr. Samenow met with Powell. After
answering the doctor’s initial general questions, Powell
indicated that he did not “feel like talking no more.” Powell
then stated that he had decided not to cooperate with the
examination and that he had only come to the interview because
he “didn’t know who was here.”
The Commonwealth filed a motion to exclude Powell’s
psychiatric evidence in mitigation. On March 24, 2000, the
8
trial court entered an order directing Powell to cooperate with
Dr. Samenow, noting specifically that failure to do so would
result in the exclusion of Powell’s expert evidence. Powell
continued to refuse to cooperate with Dr. Samenow. The trial
court deferred ruling on the Commonwealth’s motion to exclude
Powell’s expert evidence, entering an order directing Powell’s
counsel to refrain from mentioning such evidence at trial until
its admissibility was determined.
B. Voir Dire
Trial commenced with jury selection on May 1, 2000. The
voir dire of potential jurors was conducted in four panels. The
trial court questioned jurors generally concerning possible
relationships with the victims, Powell, the trial attorneys, and
any interest, knowledge of, or opinions about the case. The
trial court also questioned the jurors about their ability to be
fair and impartial and to render a verdict and sentence based
solely on the evidence presented at trial and the trial court’s
instructions. The jurors of each panel indicated that they
would be able to consider the evidence, including evidence in
mitigation of a death sentence, fairly and impartially, and to
follow the trial court’s instructions.
Powell’s counsel questioned the first two panels of
potential jurors concerning their opinion as to specific types
of evidence in mitigation, including Powell’s age, his remorse,
9
his “emotional problems from a relatively young age,” and his
lack of a “significant history of prior criminal activity.”
Three jurors in the second panel, Tilley, Neal, and Henderson,
each stated that they did not believe Powell’s age or a showing
of remorse would be factors weighing in favor of a sentence of
life rather than death. 3 As Powell’s counsel continued this line
of questioning by addressing Powell’s “learning disabilities and
. . . problems in school,” the Commonwealth objected, asserting
that these matters were not permissible evidence in mitigation.
Addressing the Commonwealth’s objection, the trial court
expressed concern about the entire line of questioning regarding
the jurors’ views on specific mitigating evidence. Noting that
all the jurors had indicated an ability to consider such
evidence, the trial court observed that the questions of
Powell’s counsel were “vague” and “ambiguous” and that the
jurors were “confused” by them. The trial court then ruled that
these questions “exceeded the scope that the statute allows with
voir dire,” and that Powell would thereafter be limited to
asking jurors whether they would be able to consider mitigating
evidence and follow the trial court’s instructions on
considering such evidence in sentencing. When Powell’s counsel
3
Two of the jurors, apparently misunderstanding counsel’s
question, first indicated that Powell’s age was not a factor
they would consider relevant to his guilt or innocence.
10
subsequently attempted to ask the jurors on the remaining panels
whether they had opinions about the value of specific mitigating
evidence, the trial court sustained the Commonwealth’s renewed
objections.
Powell moved to strike jurors Tilley, Neal, and Henderson
for cause, asserting that they had indicated an unwillingness to
consider proper mitigating evidence. The trial court overruled
the motion, stating that all these jurors indicated they had the
ability to consider all the evidence and follow the trial
court’s instructions. Powell subsequently objected to the
seating of the selected jury panel, again asserting that he
should have been permitted to inquire into the jurors’ opinions
about the value of specific mitigating evidence. The trial
court overruled the objection.
In the course of questioning by both the Commonwealth and
Powell’s counsel, prospective juror O’Dell repeatedly expressed
her concern that she would be required to make a decision on the
imposition of the death penalty and “would find it very
difficult” to do so. She further agreed that she had not
decided firmly what her opinion of the death penalty was and
would have to reach that decision “sometime between now and the
end of this case.”
The Commonwealth moved to strike O’Dell on the ground that
she was uncertain of her views regarding the death penalty and
11
whether she would be able to follow the trial court’s
instructions regarding sentencing. Powell countered that O’Dell
had not affirmatively stated that she would not be able to
impose a sentence of death. The trial court sustained the
Commonwealth’s motion and removed O’Dell from the venire for
cause.
C. Guilt-Determination Phase
During the guilt-determination phase of the bifurcated
trial, evidence in accord with the facts of the crimes recited
above was received from the Commonwealth’s witnesses. During
the testimony of Dr. Frances Patricia Field, Assistant Chief
Medical Examiner for the Northern Virginia District Medical
Examiner’s Office, the Commonwealth introduced the autopsy
report regarding Stacey Reed. Included in the report was a
narrative description of the circumstances surrounding Stacey’s
death made during the first examination of the body by a local
medical examiner. That narrative included a notation that
“neighbors saw [Stacey with] suspect approx. noon. Approx.
3:30-4:00 p.m. suspect seen [with] sister by neighbors.” 4
4
There is some dispute as to whether the shorthand notation
in the report is intended to be read as “with,” as rendered
here, or as “and.” Regardless of which word was intended, the
substance of the report is not materially altered.
12
After the Commonwealth concluded its case-in-chief,
Powell’s counsel made a motion for a mistrial on the ground that
the Commonwealth had failed to provide as part of its response
to discovery the portion of the autopsy report that indicated
neighbors had seen a “suspect” with each of the girls. Powell’s
counsel contended that had he been in possession of this
information, he would have conducted his cross-examination of
Kristie and Lewis differently. Powell’s counsel further
contended that disclosure of the statement “would have opened up
avenues of investigation, which might have led to further
exculpatory information.”
The Commonwealth responded that the exculpatory value of
the narrative notation in the medical examiner’s report was
speculative at best. The Commonwealth noted that this narrative
was created before the investigation of the crimes was complete
and that the information in this particular section of the
report did not reflect the personal knowledge of the medical
examiner. During subsequent investigations, the police were
unable to locate any witnesses who had seen Powell or anyone
else with the sisters on that afternoon. The trial court
overruled the motion for a mistrial, ruling that there was
nothing exculpatory in the preliminary autopsy report and that
it was mere speculation that the information in the report would
have led to some exculpatory evidence. The trial court further
13
noted that the objection to the report and the motion for
mistrial were untimely, since no objection to the report had
been raised at the time it was received into evidence.
Powell then made a motion to strike each of the charges
against him. Relevant to the issues raised in these appeals,
Powell argued that there was insufficient evidence to support
the charge of abduction of Kristie because the restraint used
did not exceed that necessary to accomplish the rape and
attempted capital murder of her. With respect to the charge of
capital murder of Stacey during the commission of rape or
attempted rape, Powell contended that the evidence showed that
the rape of Kristie occurred after the murder of Stacey. Powell
argued that because the indictment had used the phrase “during
the commission of or subsequent to rape” the rape must proceed
or be concurrent with the murder in order to provide the
gradation crime necessary for enhancing first degree murder to
capital murder. The Commonwealth stipulated that there was no
evidence of sodomy or attempted sodomy. The trial court denied
Powell’s motion to strike.
Powell did not present any evidence and renewed his motion
to strike, which the trial court again denied. The guilt-
determination phase of the trial proceeded to jury instructions
and closing arguments.
14
Relevant to the issues raised in these appeals, Powell
objected to the Commonwealth’s proffered instruction 5 which
defined the phrase “during the commission of” rape as meaning
that the rape occurred “before, during or after” the murder.
Powell again asserted that the amended indictment charged that
the murder occurred “during the commission of or subsequent to
rape” and, thus, “the phrase they are dealing with is during,
not before and not after.” The Commonwealth responded that the
instruction was a correct statement of law. The trial court
granted the instruction.
Powell also objected to the Commonwealth’s proffered
instruction 7, which, in part, stated that “it is immaterial
whether the rape [of another victim] occurred before or after
the death of the murder victim.” Powell contended that a
correct statement of law would include the further instruction
that the rape and murder were “so closely related in time,
place, and causal connection as to make the killing part of the
same criminal enterprise as the” rape. However, Powell did not
request that the trial court amend the Commonwealth’s proffered
instruction or proffer an instruction of his own on this point
of law. The Commonwealth contended that its instruction was a
correct statement of law under Spencer v. Commonwealth, 238 Va.
275, 285, 384 S.E.2d 775, 780 (1989), cert. denied, 493 U.S.
15
1036 (1990). The trial court overruled the objection and
granted the instruction.
In addition, Powell objected to the Commonwealth’s
proffered instruction 10, which defined “ ‘[w]illful,
deliberate, and premeditated’ [as meaning] a specific intent to
kill, adopted at some time before the killing, but which need
not exist for any particular length of time.” Powell contended
that the instruction was “too concise a statement of the law.”
Powell proffered instruction U as an alternative:
For the killing to be willful, deliberate, and
premeditated, it is necessary that it [should] have
been done on purpose, and not by accident, or without
design; that the accused must have reflected with a
view to determine whether he would kill or not; and
that he must have determined to kill as the result of
that reflection before he does the act—that is to say,
the killing must be a premeditated killing upon
consideration. The design to kill need not have
existed for any particular length of time; it may
[have] been formed at the moment of the commission of
the act.
Powell contended that his instruction, which was drawn from
language in Pannill v. Commonwealth, 185 Va. 244, 255, 38 S.E.2d
457, 463 (1946), was a more accurate statement of law. The
Commonwealth responded that instruction 10, a “Model [Jury]
Instruction,” was “a more modern and concise statement of the
principles of Pannill,” and asserted that the purpose of jury
instructions “is to make the law as clear and understandable as
16
possible” for the jurors. The trial court overruled Powell’s
objection, granted instruction 10, and refused instruction U.
During closing argument, the Commonwealth noted Powell had
subsequently told others that he intended to steal property from
the home and that he was looking for money to steal immediately
after stabbing Stacey. Noting that Stacey was probably still
alive at that time, the Commonwealth continued, “it’s as likely
as any scenario — but we’ll never know because he hasn’t told
us.”
Powell objected to this statement as soon as it was made,
but the trial court directed that the objection would not be
heard until closing argument had concluded. Once the
Commonwealth completed its argument, Powell renewed his
objection and moved for a mistrial, contending that the
Commonwealth had made an improper reference to Powell’s failure
to testify. The Commonwealth represented that the reference was
to Powell’s comments on the videotaped statement in which he
denied having intended to rob Stacey. The trial court accepted
this explanation, denied the motion for mistrial, and
subsequently instructed the jury that Powell had an “absolute
right” not to testify and that it “shall not consider his
exercise of [that] right as evidence and shall not draw from it
any inference whatsoever.”
17
During its deliberations, the jury sent a question to the
trial court seeking clarification whether the rape of Kristie
could satisfy the gradation crime requirement for the capital
murder of Stacey. The trial court initially indicated that it
would respond in the negative because the rape was “too remote
in time” from the murder. The Commonwealth argued that there
was sufficient evidence from which the jury could find that
Stacey’s murder facilitated the subsequent rape of Kristie and,
thus, that the rape was part of the same criminal enterprise as
the murder.
Relying on Coleman v. Commonwealth, 226 Va. 31, 307 S.E.2d
864 (1983), cert. denied, 465 U.S. 1109 (1984), and Spencer, 238
Va. at 283, 384 S.E.2d at 779, the Commonwealth further argued
that the jury need only find that Powell had the intent to rape
Kristie when he killed Stacey. Powell contended that the jury’s
confusion stemmed from the instructions he had previously
objected to concerning the definition of the murder occurring
“during” the commission of one or more of the gradation crimes.
Powell further asserted that the evidence showed that “a
significant period of time elapsed” between the murder and the
rape.
The trial court gave the following response to the jury’s
question:
18
Yes. Murder in [t]he [c]ommission of a rape is a
killing which takes place before, during or after the
rape and is so closely related thereto in time, place,
and causal connection as to make the killing part of
the same criminal enterprise as the rape.
After the trial court noted Powell’s objection to the
response to the jury, Powell’s counsel asked “to be permitted to
argue this new instruction.” The trial court denied this
request.
The jury returned verdicts convicting Powell of capital
murder, attempted capital murder, rape, and abduction. Powell
requested that the trial court poll the jury concerning
unanimity of the capital murder conviction and also whether the
gradation crime relied upon was robbery or rape. The jury
responded that the conviction for capital murder was unanimous
and that the gradation crime had been rape. Powell then
requested “that the jury be polled . . . as to whether they
found the rape was committed before, during or after the act of
murder.” The trial court denied this request.
D. Penalty-Determination Phase
Before beginning the presentation of its evidence with
regard to imposition of the death penalty, the Commonwealth
renewed its motion to exclude testimony from Powell’s mental
health expert on the ground that Powell had refused to cooperate
with the Commonwealth’s mental health expert. Dr. Samenow was
called as a witness out of the presence of the jury to give
19
evidence in this regard. During his testimony, Dr. Samenow
stated that during his second effort to interview Powell, a jail
officer told him that Powell had refused to meet or speak with
Dr. Samenow. Powell objected to this evidence as “[h]earsay.”
The trial court allowed the testimony.
Responding to the Commonwealth’s motion, Powell’s counsel
asserted that in refusing to cooperate with Dr. Samenow, Powell
was properly exercising his Fifth Amendment right against self-
incrimination. Counsel further asserted that the trial court’s
order had limited Dr. Samenow’s evaluation to a determination of
Powell’s sanity at the time of the offense. Therefore, because
Powell’s expert evidence in mitigation of the death sentence
would not relate to Powell’s guilt, it would be an abuse of
discretion to refuse to allow that evidence for failure to
comply with that order. The trial court ruled that Powell’s
expert witness would not be allowed to testify.
When the Commonwealth attempted to elicit testimony from a
police officer concerning admissions made by Powell that he had
committed a large number of residential burglaries, Powell
objected on the ground that the Commonwealth’s intention to
refer to these crimes had not been disclosed under Powell’s
discovery motion. The Commonwealth responded that while the
specific acts had not been listed in a separate notice, the
statements in which Powell made the admissions had been provided
20
to the defense. The trial court permitted the evidence on the
ground that the defense had actual notice of the Commonwealth’s
intent regarding this evidence from the statements provided.
Additional evidence presented by the Commonwealth relevant
to sentencing included Powell’s juvenile record, his admission
that he had tortured and killed cats when he was younger, and
evidence that he had threatened a jail officer and a prosecutor.
At the conclusion of the Commonwealth’s evidence, Powell made a
motion to strike the evidence regarding the aggravating factor
of future dangerousness and that of the vileness of the crime.
The trial court denied the motion.
Powell’s counsel made a motion for a competency evaluation
of Powell on the ground that Powell had directed them to present
no evidence in mitigation. Counsel proffered the evidence they
would have presented and indicated that Powell’s refusal to
permit this evidence to be presented showed that he lacked the
capacity to assist them in conducting his defense. Counsel
conceded, however, that they had talked extensively with Powell
about the matter, that Powell had stated his reasons for not
wishing to have any evidence in mitigation placed before the
jury, and that “he has thought about this and . . . understands
the consequences and knows what he’s doing.” Counsel declined
to state what Powell’s reasons were, but nonetheless asserted
that Powell’s decision was the result of a “mental illness”
21
which caused him to act in a manner contrary to his own best
interests.
The Commonwealth responded that there was no probable cause
to find that Powell lacked the capacity to understand the
proceedings and knowingly and intelligently direct his counsel
not to present mitigating evidence if that was his choice. The
trial court ruled that Powell’s refusal to follow his counsel’s
advice did not indicate a lack of capacity in light of the
circumstances and denied the motion for a competency evaluation.
Powell presented no evidence relevant to sentencing and renewed
his motion to strike, which the trial court again denied.
The Commonwealth proffered instruction 28 on sentencing.
The instruction advised the jury that it could impose a sentence
of death, life imprisonment, or life imprisonment and a fine of
up to $100,000 if it found either or both the aggravating
factors to be present, and a sentence of life imprisonment or
life imprisonment and a fine of up to $100,000 if the jury found
neither aggravating factor to be present. Powell objected to
this instruction, contending that it failed to “clearly advise
the jury that even if they make one or both of these findings of
aggravating factors that they are still entitled if they feel
it’s justified to sentence the Defendant to not death but
imprisonment for life.” Powell proffered two instructions, Z
and AA: the first stating the sentencing alternatives and the
22
second stating the option to impose life imprisonment even where
the jury found one or both of the aggravating factors to be
present. The trial court overruled Powell’s objection, finding
that the Commonwealth’s instruction was an accurate statement of
the law and that Powell’s instructions would unnecessarily
duplicate instruction 28.
The Commonwealth proffered five penalty-phase verdict
forms: one for the imposition of a sentence of death based upon
a finding of both aggravating factors, one for the imposition of
a sentence of death based upon a finding of future dangerousness
only, one for the imposition of a sentence of death based upon a
finding of vileness, one for the imposition of a life sentence,
and one for the imposition of a life sentence and a fine of up
to $100,000. These last two verdict forms made no mention of
the presence or absence of aggravating factors. Each of the
verdict forms directed the jury to consider all the evidence
including evidence in mitigation.
Powell objected that the forms permitting a sentence of
life imprisonment or life imprisonment and a fine were
incomplete. Powell specifically argued that the jury “need[s]
forms that indicate they can find one or both aggravating
factors and still impose a punishment [of] imprisonment for life
or a [punishment] of imprisonment for life and a fine of [up to]
$100,000.” The trial court ruled that the Commonwealth’s forms
23
adequately provided the jury with a means to impose the
sentences outlined in the sentencing instruction. 5
The jury was instructed and heard argument regarding
sentencing from Powell and the Commonwealth. Following
deliberations, the jury rendered a verdict for a sentence of
death for the capital murder based upon the vileness aggravating
factor only. The jury was polled and was unanimous as to its
verdict. On the non-capital offenses, the jury fixed Powell’s
punishment at life imprisonment and a fine of $100,000 for
attempted capital murder, life imprisonment and a fine of
$100,000 for abduction with intent to defile, and life
imprisonment for rape.
E. Sentencing
Following the preparation of a pre-sentence report, the
trial court held a sentencing hearing on August 10, 2000.
Relevant to the issues raised in these appeals, at that hearing
Powell called Jennifer M. Day, the foreperson of the jury in his
trial, as a witness. Day testified that the trial court’s
response to the jury’s inquiry during the guilt-determination
phase had been “the determining factor” for her regarding
5
Powell further asserted that the verdict forms were
improper because the description of the offense did not
precisely track the language of the indictment. Powell does not
reassert this issue on appeal.
24
whether Powell was guilty of capital murder. She further
testified that she had not understood that a sentence of life
imprisonment was an option even if the jury found that at least
one of the aggravating factors was present. She testified that
she would have voted to impose a life sentence had the jury been
provided with a verdict form that specifically provided for a
life sentence even with the finding of vileness.
On cross-examination, Day testified that she was a legal
secretary and had “volunteered” to interpret the instructions
provided to the jury for the other jurors. She further
testified that she had read instruction 28 and understood that
the jury was permitted to impose a life sentence even if it
found one or both of the aggravating factors to be present. Day
admitted that following the trial she began to feel “guilty”
about the verdict and death sentence and was concerned that
Powell’s attorneys had not provided him with an adequate
defense.
Day also testified that following the trial she began
having regular contact with Powell through telephone calls,
correspondence, and visits to the jail. Day, who is married,
sent Powell material copied from the Internet including
information on conjugal visits, sexually explicit jokes, and a
“love horoscope.” She denied wanting to have a physical
relationship with Powell, indicating that she had told Powell
25
they might be able to have contact visits only because she hoped
this would give him a reason to live. Day also sent money to
Powell, offered to assist him in finding new legal counsel, and
specifically told Powell that she would do what she could “to
see that he did not get the death penalty.”
Powell asserted that there was good cause to set aside the
jury’s sentence of death based upon Day’s testimony. The trial
court rejected Powell’s assertion, finding that the jury
instructions and sentencing forms were adequate and that Day’s
credibility was tainted by her relationship with Powell and her
desire to help him avoid the death penalty. By order entered
September 6, 2000, the trial court confirmed the jury’s verdicts
and sentences.
We consolidated the automatic review of Powell’s death
sentence with his appeal of the capital murder conviction. Code
§ 17.1-313(F). Powell’s appeal of his non-capital convictions
was certified from the Court of Appeals, Code § 17.1-409,
consolidated with his capital murder appeal, and the
consolidated appeals were given priority on our docket.
III. DISCUSSION
Powell raises twenty-five assignments of error in these
consolidated appeals regarding his capital murder conviction and
his non-capital convictions, and we have carefully considered
each of them. However, because we are of opinion that several
26
issues raised are dispositive of, or necessary to, our ultimate
holding that Powell’s capital murder conviction will be reversed
and his non-capital convictions will be affirmed, we will not
address all of Powell’s assignments of error. 6 In addition, we
take the opportunity provided by this case to address several
other issues that are critical to the proper prosecution of
capital murder cases and will be instructive to such future
cases.
A. Constitutional Challenges to Capital Punishment Statutes
Powell assigns error to the trial court’s denial of his
motion to have the Virginia death penalty statute and the
statutory scheme under which capital murder trials are conducted
and death sentences are reviewed on appeal declared
unconstitutional. To the extent that this assignment of error
remains pertinent to Powell’s conviction of attempted capital
6
The issues raised that we need not address are: the
failure of the trial court to strike the Commonwealth’s evidence
as to vileness; the admission of hearsay evidence concerning
Powell’s failure to cooperate with the Commonwealth’s mental
health expert; the granting of the Commonwealth’s motion to
exclude the testimony of Powell’s mental health expert; the
admission of evidence of Powell’s unadjudicated conduct; the
trial court’s denial of Powell’s motion for a competency
evaluation based upon his desire not to have his counsel present
mitigating evidence; the trial court’s failure to give Powell’s
proffered instructions on sentencing; and the trial court’s
failure to set aside the death sentence. Similarly, because we
will not be required to conduct the review of the death sentence
under Code § 17.1-313(C), the assignments of error corresponding
27
murder, we have addressed and rejected in prior capital murder
cases the specific arguments raised in it, and we find no reason
to modify our previously expressed views on these issues:
(1) Virginia’s two statutory aggravating factors of “future
dangerousness” and “vileness” are not unconstitutionally vague.
Beck v. Commonwealth, 253 Va. 373, 387, 484 S.E.2d 898, 907,
cert. denied, 522 U.S. 1018 (1997) (“vileness”); Clagett, 252
Va. at 86, 472 S.E.2d at 267 (“future dangerousness”).
(2) Virginia’s penalty-determination phase instructions
adequately inform the jury regarding the concept of mitigation.
Swann v. Commonwealth, 247 Va. 222, 228, 441 S.E.2d 195, 200,
cert. denied, 513 U.S. 889 (1994).
B. Amendment of Indictment
Powell assigns error to the trial court’s overruling his
objection to the Commonwealth’s motion to amend the indictment
charging him with capital murder of Stacey in the commission of
a robbery and/or attempted robbery to include an alternative and
additional count of capital murder “during the commission of or
subsequent to rape and/or attempted rape and/or sodomy and/or
attempted sodomy.” Powell contends that by this amendment, the
Commonwealth impermissibly expanded the nature and character of
the charges against him. The Commonwealth responds that the
to the issues to be considered in the statutory review are also
28
amendment of the indictment was permissible under Code § 19.2-
231 because it did not change the nature of the offense charged.
The Commonwealth contends that the offense charged continued to
be capital murder and that the amendment merely placed Powell on
notice that the Commonwealth would seek to use the offense of
rape as a gradation crime to prove capital murder.
Code § 19.2-231 provides:
If there be any defect in form in any indictment,
presentment or information, or if there shall appear
to be any variance between the allegations therein and
the evidence offered in proof thereof, the court may
permit amendment of such indictment, presentment or
information, at any time before the jury returns a
verdict or the court finds the accused guilty or not
guilty, provided the amendment does not change the
nature or character of the offense charged. After any
such amendment the accused shall be arraigned on the
indictment, presentment or information as amended, and
shall be allowed to plead anew thereto, if he so
desires, and the trial shall proceed as if no
amendment had been made; but if the court finds that
such amendment operates as a surprise to the accused,
he shall be entitled, upon request, to a continuance
of the case for a reasonable time.
The statute is remedial in nature and is to be liberally
construed in order to achieve the laudable purpose of avoiding
further unnecessary delay in the criminal justice process by
allowing amendment, rather than requiring reindictment by a
grand jury. Sullivan v. Commonwealth, 157 Va. 867, 876-77, 161
S.E. 297, 300 (1931). The amendment, when allowed, must provide
moot.
29
that the substantial rights of the accused are protected by
informing him of the nature and character of the accusations.
Id. As a rule, amendments to correct a variance between the
allegation of the indictment and the proof occur after the
Commonwealth has presented a portion or all of its case, placing
the trial court in a position to judge whether that proof would
be adequate to support the return of the amended indictment.
See, e.g., Thomas v. Commonwealth, 256 Va. 38, 42, 501 S.E.2d
391, 393 (1998)(amendment after trial but prior to return of
verdict).
Here, there is no allegation by the Commonwealth that the
amendment was intended to correct a defect in form. Indeed,
there was no such defect. Accordingly, the issue we must
determine is whether the pre-trial amendment of an indictment
charging one theory of capital murder to include an alternative
and additional theory of capital murder constitutes an amendment
contemplated by the provisions of Code § 19.2-231 to correct a
variance between the allegation of the original indictment and
the proof the Commonwealth expects to adduce at the subsequent
trial. For the following reasons, we hold that the particular
amendment made to the indictment in this case was not authorized
by Code § 19.2-231.
Under the original indictment returned by the grand jury in
this case, Powell was charged with a single count of capital
30
murder in which the gradation crime was the commission or
attempted commission of robbery, a violation of Code § 18.2-
31(4). In amending the indictment, the Commonwealth used the
term “and/or” to charge two new gradation crimes, the commission
or attempted commission of rape and the commission or attempted
commission of sodomy, either of which would constitute a
violation of Code § 18.2-31(5). In doing so, the Commonwealth
did not simply correct a variance between the original
allegation and the proof it expected to adduce at trial.
Rather, by use of the term “and/or,” the Commonwealth expanded
the indictment to include a new and additional charge of capital
murder. See Bailey v. Commonwealth, 259 Va. 723, 747, 529
S.E.2d 570, 584, cert. denied, ___ U.S. ___, 121 S.Ct. 488
(2000). As a result, under the amended indictment Powell could
have been convicted and sentenced on one count of capital murder
under Code § 18.2-31(4) and another count of capital murder
under Code § 18.2-31(5). 7 Id.
Although the same grand jury also indicted Powell for the
rape of Kristie, it was never called upon to consider that
7
It is irrelevant that the Commonwealth did not expressly
seek separate convictions for the two counts of capital murder
or that Powell was acquitted of capital murder in the commission
of robbery and, thus, was not actually subject to an increased
punishment. We are not here concerned with the outcome of the
trial on the amended indictment, but whether the amendment of
the indictment was proper.
31
offense as the gradation crime for the capital murder of Stacey.
Similarly, nothing in the record suggests that the grand jury
heard any evidence with respect to the gradation crime of
sodomy. The record as a whole is devoid of any evidence that
Powell attempted to rape or sodomize Stacey, despite Powell’s
subsequent claim that he attempted to initiate consensual sexual
relations with her. Thus, the amendment to the indictment was
premised upon allegations not previously considered by the grand
jury. It is “the province of the grand jury [under Code § 19.2-
191] to ascertain from the evidence adduced whether or not” the
evidence will sustain the charge brought. Evans v.
Commonwealth, 183 Va. 775, 780, 335 S.E.2d 636, 638 (1945).
Accordingly, despite the liberal construction afforded to
promote the remedial purpose of Code § 19.2-231, and because the
amended indictment materially changed the nature of the offense
originally charged, we hold that the trial court erred in
permitting the Commonwealth to amend the indictment for capital
murder. Thus, Powell’s conviction for capital murder under the
amended indictment cannot stand.
Although our determination that the amendment of the
indictment was error and will necessitate reversal of Powell’s
conviction for capital murder, we must nonetheless consider
other issues that may have relevance to any trial on remand for
the murder offense and the issues raised by the appeal of
32
Powell’s convictions for the non-capital offenses. We turn now
to address those issues in the order in which they arose at
trial.
C. Jury Selection
Powell assigns error to the trial court’s striking for
cause of juror O’Dell and failing to strike for cause jurors
Tilley, Neal, and Henderson. Powell also assigns error to the
trial court’s limiting of his questions during voir dire and to
the trial court’s seating of the jury panel following the
limiting of his voir dire. To the extent that the selection of
the jury is an issue impacting Powell’s non-capital convictions,
we will address the issues raised in these assignments of error.
Powell contends that juror O’Dell should have been retained
in the venire because she did not expressly state that she would
be unable to impose the death penalty. Contrary to Powell’s
contention, however, the record reveals that O’Dell did not
merely express reservations about the death penalty. Rather,
she affirmatively stated that she had not made up her mind as to
whether she would be able to follow the trial court’s
instructions and consider all possible sentencing options
including a sentence of death. She indicated that she would not
reach a decision on whether she would be able to follow the
trial court’s instructions and consider imposing a sentence of
death until sometime later in the trial. Under these
33
circumstances, we cannot say that the trial court abused its
discretion in striking O’Dell from the venire. Barnabei v.
Commonwealth, 252 Va. 161, 173, 477 S.E.2d 270, 277 (1996),
cert. denied, 520 U.S. 1224 (1997).
Powell contends that jurors Tilley, Neal, and Henderson
should have been removed from the venire because each indicated,
in response to questions asked by his counsel, that they would
not consider evidence in mitigation if called upon to consider
whether to impose a sentence of death. Powell further contends
that the trial court erred when it subsequently prohibited him
from making similar inquiries to the remaining members of the
venire. Powell’s contentions misrepresent the nature of the
questions and the responses given by the three prospective
jurors.
In conducting our review, we consider the jurors’ entire
voir dire, not merely isolated statements. Clagett, 252 Va. at
90, 472 S.E.2d at 269; Mackall v. Commonwealth, 236 Va. 240,
252, 372 S.E.2d 759, 767 (1988), cert. denied, 492 U.S. 925
(1989). Each juror had previously indicated in response to
questions from the trial court and counsel that he or she would
be able to follow the trial court’s instructions and consider
all the evidence, including evidence in mitigation, when
considering whether to impose a death sentence. The nature of
the questions Powell’s counsel asked and the responses of the
34
three jurors did not relate to whether the jurors would consider
evidence in mitigation, but whether specific mitigating factors
“[w]ould . . . prevent [the juror] from imposing the death
penalty.” Such questions are improper in voir dire because they
are not relevant to a determination of whether a juror has a
particular bias or prejudice, but instead attempt to elicit the
juror’s views on specific types of evidence. LeVasseur v.
Commonwealth, 225 Va. 564, 580-81, 304 S.E.2d 644, 653 (1983),
cert. denied, 464 U.S. 1063 (1984). “The court must afford a
party a full and fair opportunity to ascertain whether
prospective jurors ‘stand indifferent in the cause,’ but the
trial judge retains the discretion to determine when the parties
have had sufficient opportunity to do so.” Id. at 581, 304
S.E.2d at 653.
In summary, there is no merit to Powell’s challenges to the
selection of the jury in this case. We hold that the trial
court did not abuse its discretion in striking O’Dell, in
refusing to strike Tilley, Neal, and Henderson, in limiting the
voir dire of the remaining members of the venire, and in seating
the jury panel.
D. Discovery Violation
Powell assigns error to the trial court’s failure to grant
his motion for mistrial on the ground that the Commonwealth
failed to disclose the contents of the preliminary autopsy
35
report under Brady v. Maryland, 373 U.S. 83, 87 (1963). We hold
that the trial court properly ruled that Powell’s motion for
mistrial was untimely. The trial court does not abuse its
discretion in denying a new objection raised to previously
admitted evidence after the Commonwealth has rested its case. 8
Lovitt v. Commonwealth, 260 Va. 497, 512, 537 S.E.2d 866, 876
(2000).
E. Guilt-Determination Phase
Jury Instructions and Jury Inquiry
Powell assigns error to the trial court’s granting of
Commonwealth’s instructions 5, 7, and 10 and in refusing his
instruction U. 9 Powell further assigns error to the answer given
by the trial court in response to the jury inquiry for
clarification whether the rape of Kristie could serve as the
gradation crime for the capital murder of Stacey.
The thrust of all these objections is Powell’s contention
that under the wording of the amended indictment, the
8
In light of our holding that the trial court was correct
in overruling the motion as untimely, we need not address the
trial court’s further determination that the motion was without
merit.
9
Powell also assigned error to the trial court’s granting
of instructions 4 and 6 and refusing his instruction Y. On
brief, Powell concedes that his objections concerning
instructions 4 and Y are mooted by his acquittal on the charge
of capital murder in the commission of robbery. Similarly, any
error in granting instruction 6, which also related only to the
charge of capital murder in the commission of robbery, is moot.
36
Commonwealth was limited to proving that the killing of Stacey
occurred “during the commission of or subsequent to” the rape of
Kristie, and not, as the trial court instructed the jury, that
the killing occurred “before, during, or after” that rape.
(Emphasis added). The Commonwealth concedes that the language
of the amended indictment fails to track the current wording of
Code § 18.2-31(5), which provides for a premeditated killing “in
the commission of, or subsequent to, rape.” (Emphasis added).
It contends, however, that the phrase “during the commission of,
or subsequent to” does not limit the offense charged under the
amended indictment because that phrase includes the commission
of a rape after the murder. We disagree with the Commonwealth.
An indictment is a written charge against the accused for a
specific crime that informs the accused of the nature and
character of the offense charged against him. Code § 19.2-220.
“It is elementary that what need not be proved need not be
alleged, but sometimes . . . [the indictment] alleges something
that it was not necessary to allege,” requiring proof of “what
. . . has [been] alleged unless the unnecessary allegation can
be rejected as surplusage.” Mitchell v. Commonwealth, 141 Va.
541, 555, 127 S.E. 368, 373 (1925). “If the unnecessary word or
words inserted in the indictment describe, limit or qualify the
37
words which it was necessary to insert therein, then they are
descriptive of the offense charged in the indictment and cannot
be rejected as surplusage.” Id. at 560, 127 S.E. at 374.
Code § 18.2-31(e), as the current subsection (5) was
formerly designated, originally defined capital murder as the
willful, deliberate, and premeditated killing of a person
“during the commission of, or subsequent to, rape.” In Harward
v. Commonwealth, 229 Va. 363, 330 S.E.2d 89 (1985), comparing
this language to language used in other subsections of Code
§ 18.2-31, we held that “[t]he phrase ‘in the commission of’
includes a killing before, during, and after the underlying
felony, while the language ‘during the commission of, or
subsequent to’ excludes a killing which occurs before a rape” of
another person. Id. at 366, 330 S.E.2d at 91. In response to
Harward, the General Assembly in 1988 amended subsection (e) to
define the requisite killing to constitute capital murder as one
“in the commission of, or subsequent to, [the] rape” of any
person.
The Commonwealth contends that the discussion in Harward of
the distinction between “during the commission of, or subsequent
to” and “in the commission of” is dictum, and that we have
subsequently rejected the distinction in Spencer, 238 Va. at
286, 384 S.E.2d at 781, relying on Coleman, 226 Va. at 51, 307
S.E.2d at 875. The Commonwealth’s reliance on Spencer and
38
Coleman is misplaced in the present case. In Spencer and
Coleman, the issue was whether the evidence failed to show that
the murder victim was alive at the time of the rape, not whether
the rape of another person occurring after the death of the
murder victim could serve as the gradation crime for capital
murder.
It remains a valid principle that the Commonwealth is
limited to the prosecution of the crime charged in the
indictment because the accused is entitled to notice of the
offense charged. Thus, in the present case, once the
Commonwealth chose, for whatever reason, to depart from the
language of Code § 18.2-31(5) and to insert into the amended
indictment the exact language that had been interpreted in
Harward to exclude the killing of the murder victim before the
rape of another person, it became bound to the more limited
proof that the gradation crime was a rape occurring before or
during the killing. Accordingly, we hold that the trial court
erred in instructing the jury that the gradation crime of rape
was one occurring “before, during, or after” the murder and in
subsequently responding to the jury inquiry that the rape of
Kristie, which according to the evidence occurred after the
39
killing of Stacey, could serve as the gradation crime for the
capital murder of Stacey. 10
F. Comment on Powell’s Failure to Testify
Powell assigns error to the trial court’s failure to grant
a mistrial following the Commonwealth’s alleged reference in
closing argument to Powell’s failure to testify. Powell asserts
the statement made by the Commonwealth’s Attorney referred to
Powell’s “failure to tell [the jury] what his intent or motive
was” for killing Stacey and “went to the central issue of the
capital murder charge” only. Accordingly, we will consider this
issue in that context.
As a general rule, any comment that the Commonwealth’s
Attorney made referring to the defendant’s election not to
testify is a violation of his right against self-incrimination
as guaranteed by the Fifth Amendment of the United States
Constitution, Griffin v. California, 380 U.S. 609, 615 (1965),
and Article I, Section 8 of the Constitution of Virginia and as
explicated in Code § 19.2-268, Elliott v. Commonwealth, 172 Va.
595, 598-601, 1 S.E.2d 273, 274-76 (1939). A comment is
constitutionally and statutorily forbidden if “ ‘the language
10
Because the trial court’s response to the jury inquiry
was erroneous, we need not address Powell’s contention that the
trial court erred in failing to permit him to present argument
to the jury following that response being given.
40
used was manifestly intended or was of such character that the
jury would naturally and necessarily take it to be a comment on
the failure of the accused to testify.’ ” Hines v.
Commonwealth, 217 Va. 905, 907, 234 S.E.2d 262, 263 (1977)
(quoting Knowles v. United States, 224 F.2d 168, 170 (10th
Cir.1955)).
Contrary to the Commonwealth’s assertions at trial and in
this Court, the context of the statement by the Commonwealth’s
Attorney does not clearly reference Powell’s videotaped
confession that he had raped Kristie and stabbed both Stacey and
Kristie, but that he had not taken any money from their house.
Although the Commonwealth’s Attorney had mentioned Powell’s
admission in this videotape earlier in his argument, the issue
here arose when he was arguing that the evidence, specifically
Kristie’s testimony and that of her mother, supported finding
that Powell was rummaging through Stacey’s possessions looking
for money to steal as she lay dying “in a pool of blood.” The
Commonwealth’s Attorney then stated:
If you don’t think [Stacey] kept money in her
underwear drawer, acquit him. If you think her mother
made that up, acquit him. But that’s not the
evidence.
I’ll say this to you[,] it’s as likely as any
scenario — but we’ll never know because he hasn’t told
us . . . .
41
At that point, Powell’s counsel interposed his objection,
and the trial court directed that the objection would not be
considered until the Commonwealth’s argument concluded. The
Commonwealth’s Attorney then resumed his argument, asserting
that after “letting [Stacey’s] life’s blood drain out,” Powell
“[g]oes and takes her money, goes through [her] house.”
While it is not implausible that the Commonwealth’s
Attorney intended the statement “he hasn’t told us” to refer to
Powell’s express denial that he had looked for money or
something else to steal after stabbing Stacey, it is more likely
that the jury would have taken the statement to be a comment on
the failure of Powell to testify and offer rebuttal to the
evidence to which the prosecutor had just alluded. Accordingly,
we hold that the trial court erred in failing to find that the
statement was an improper comment on Powell’s failure to testify
concerning his motive to kill Stacey.
However, Powell was ultimately acquitted of capital murder
in the commission of robbery or attempted robbery and the
associated charge of robbery or attempted robbery, and his
conviction will be reversed on other grounds for the other
capital murder charge. Accordingly, we hold that the trial
court’s error was harmless beyond a reasonable doubt. Dunn v.
Commonwealth, 222 Va. 750, 753, 284 S.E.2d 807, 809 (1981).
G. Sufficiency of the Evidence
42
Powell assigns error to the trial court’s failure to strike
the evidence as to the abduction of Kristie on the ground that
the evidence was insufficient to support a jury finding that the
restraint used exceeded that necessary to accomplish the crime
of rape. We disagree.
A defendant may be convicted of abduction in addition to
“another crime involving restraint of the victim, both growing
out of a continuing course of conduct, . . . only when the
detention committed in the act of abduction is separate and
apart from, and not merely incidental to, the restraint employed
in the commission of the other crime.” Brown v. Commonwealth,
230 Va. 310, 314, 337 S.E.2d 711, 713-14 (1985). Here, there is
sufficient evidence to support the finding of the jury that
Powell used greater restraint than was necessary to commit
rape. 11 First, Powell ordered Kristie to go to a more secluded
part of the home prior to the rape. See, e.g., Wilson v.
Commonwealth, 249 Va. 95, 103, 452 S.E.2d 669, 675, cert.
denied, 516 U.S. 841 (1995). Although Powell did not display a
weapon to her at that time, it is clear under the circumstances
that Kristie was in reasonable fear for her life having just
11
Restraint is not a necessary element of homicide. Thus,
Powell’s contention that the restraint of Kristie was not more
than what was necessary incident to his attempt to kill her is
without merit.
43
discovered her sister’s lifeless body and being aware that
Powell was usually armed. Moreover, after the rape was
complete, Powell bound Kristie and left her for some time before
returning to attempt to kill her. This restraint clearly
exceeded that necessary to accomplish the rape. See Hoke v.
Commonwealth, 237 Va. 303, 311, 377 S.E.2d 595, 600, cert.
denied, 491 U.S. 910 (1989). Accordingly, we hold that the
trial court did not err in failing to strike the evidence as to
the charge of abduction.
Within the same assignment of error, Powell also asserts
that the evidence was insufficient to support his conviction for
the capital murder of Stacey “during the commission of or
subsequent to” the rape of Kristie. There is simply no evidence
upon which the jury could have found that Powell committed the
rape of Kristie before or during the murder of Stacey. Indeed,
it is undisputed that the rape occurred after the murder was
completed. Accordingly, the evidence was insufficient to
support Powell’s conviction for capital murder as charged in the
amended indictment. 12
12
For the reasons previously stated in this opinion,
Powell’s conviction for that crime will be reversed, and he will
not be subject to retrial for that offense. Accordingly, we
need not address the error assigned to the trial court’s failure
to poll the jury with respect to whether the rape occurred
before, during, or after the murder.
44
H. Penalty-Determination Phase
Although we have already determined that the conviction
underlying Powell’s death sentence will be reversed, we now turn
to an issue raised by Powell during the penalty-determination
phase of his trial which is critical to the proper prosecution
of capital murder cases and will be instructive to future
capital murder trials.
Powell assigns error to the trial court’s failure to grant
his request that the jury be given verdict forms which expressly
stated the jury’s option of imposing a life sentence or a life
sentence and a fine where the jury found one or both of the
aggravating factors to be present. We note that this case
presents the first opportunity to address this issue which was
properly preserved by an objection to the failure of the trial
court to provide the jury with such verdict forms. 13 Cf. Burns
v. Commonwealth, 261 Va. 307, 343 n.16, 541 S.E.2d 872, 896 n.16
(2001); Orbe v. Commonwealth, 258 Va. 390, 403 n.13, 519 S.E.2d
808, 816 n.13 (1999), cert. denied, 529 U.S. 1113 (2000). In
13
In considering this issue, we disregard the testimony of
the jury foreperson received during the sentencing hearing that
she did not understand the trial court’s instruction on
sentencing because the verdict forms failed to contain express
reference to the imposition of a life sentence where the jury
found one or both of the aggravating factors to be present. We
concur in the trial court’s observation that her testimony is
tainted by her subsequent relationship with Powell.
45
both Orbe and Burns, we held that the failure to object to the
nature of the verdict forms at trial barred consideration of
that issue on appeal. In Orbe, we went on to state that “[t]he
defendant based his motion [to assert the issue for the first
time on appeal] on the recent decision of this Court in Atkins
v. Commonwealth, 257 Va. 160, [179,] 510 S.E.2d 445[, 457]
(1999). . . . [W]e note that the verdict form in this case did
not have the problem addressed in Atkins.” Orbe, 258 Va. at 403
n.13, 519 S.E.2d at 816 n.13.
In Atkins, the jury, although properly instructed as to the
sentencing options available, was not provided with a verdict
form which allowed it to impose a life sentence or life sentence
and a fine if it found that neither of the aggravating factors
had been proven beyond a reasonable doubt. We held that this
omission resulted in the jury being “presented with a confusing
situation in which the trial court’s instructions and the form
the jury was given to use in discharging its obligations were in
conflict.” Atkins, 257 Va. at 179, 510 S.E.2d at 457.
The Commonwealth asserts that, unlike Atkins, the jury in
the present case was provided with forms that would have allowed
it to discharge its obligations because the forms provided to
the jury comported with the required language of Code § 19.2-
264.4(D). The Commonwealth further contends that because we
have held that the sentencing verdict forms prescribed by Code
46
§ 19.2-264.4(D) are not unconstitutionally vague, the trial
court has the discretion to reject a defendant’s request for an
alternative form. See Roach v. Commonwealth, 251 Va. 324, 336,
468 S.E.2d 98, 105, cert. denied, 519 U.S. 951 (1996).
Code § 19.2-264.4(D) provides:
The verdict of the jury shall be in writing, and
in one of the following forms:
(1) "We, the jury, on the issue joined, having
found the defendant guilty of (here set out statutory
language of the offense charged) and that (after
consideration of his prior history that there is a
probability that he would commit criminal acts of
violence that would constitute a continuing serious
threat to society) or his conduct in committing the
offense is outrageously or wantonly vile, horrible or
inhuman in that it involved (torture) (depravity of
mind) (aggravated battery to the victim), and having
considered the evidence in mitigation of the offense,
unanimously fix his punishment at death.
Signed .........., foreman"
or
(2) "We, the jury, on the issue joined, having
found the defendant guilty of (here set out statutory
language of the offense charged) and having considered
all of the evidence in aggravation and mitigation of
such offense, fix his punishment at imprisonment for
life.
Signed .........., foreman”
We begin by noting that the statute makes no reference to
the alternative sentence of imprisonment for life and a fine of
not more than $100,000. Originally, the punishment for capital
murder was limited to the options of a sentence of death or one
47
of life imprisonment. In 1991, the General Assembly amended
Code § 18.2-10 in include the additional option of imposing a
fine of not more than $100,000 in addition to a sentence of life
imprisonment. 14 At that time, the General Assembly failed to
amend Code § 19.2-264.4(D) to reflect this change in the range
of sentences available for capital murder and the two statutes
have since remained in conflict. 15
Because these statutes are in conflict, we must resort to
rules of statutory construction to determine which should
control. Wertz v. Grubbs, 245 Va. 67, 70, 425 S.E.2d 500, 501
(1993); see also Moore v. Commonwealth, 155 Va. 1, 11, 155 S.E.
635, 638 (1930). “In such circumstances as this, we have
employed the established rule of statutory construction that
when one statute speaks to a subject generally and another deals
14
A fine may not be imposed in addition to a sentence of
death. Code § 18.2-10(g).
15
We note further that the description of the aggravating
factors in Code § 19.2-264.4(D)(1) is also erroneous. First,
the two factors are listed in the disjunctive although it is
possible for the jury to find that a death sentence is warranted
upon finding that both aggravating factors have been proven
beyond a reasonable doubt. Second, although the description of
the future dangerousness aggravating factor is set out in a
parenthetical, indicating that the language need not be used if
not appropriate to the circumstances, only a portion of the
description of the vileness aggravating factor is within a
parenthetical, implying that the language “his conduct in
committing the offense is outrageously or wantonly vile,
horrible or inhuman in that it involved” is required as part of
the verdict form even where vileness is not at issue.
48
with an element of that subject specifically, the statutes will
be harmonized, if possible, and if they conflict, the more
specific statute prevails.” Commonwealth v. Brown, 259 Va. 697,
706, 529 S.E.2d 96, 101 (2000). Clearly, Code § 18.2-10, the
statute that prescribes the punishment for capital murder, is
the more specific of the two and, accordingly, it must prevail.
Thus, we hold that, at a minimum, the jury must receive a
verdict form that, in addition to addressing the imposition of a
sentence of death and the imposition of a sentence of life
imprisonment, also allows the jury to impose a sentence of life
imprisonment and a fine of up to $100,000. Cf. Lenz v.
Commonwealth, 261 Va. 451, 472, 544 S.E.2d 299, 308
(2001) (holding that failure to object to absence of verdict
form providing for imposition of life sentence and a fine barred
consideration of issue on appeal).
During oral argument of these appeals, the Commonwealth
contended that, since it had included among its verdict forms
ones that would have permitted the imposition of a sentence of
life imprisonment and a sentence of life imprisonment and a
fine, there is no “Atkins problem” in this case because there
was no conflict between “the trial court’s instructions and the
form[s] the jury was given to use in discharging its
obligations.” Atkins, 257 Va. at 179, 510 S.E.2d at 457. In
other words, the Commonwealth contends that, so long as the jury
49
was presented with verdict forms that allowed it to impose each
of the legal sentences for capital murder, it was not error for
the trial court to provide verdict forms that failed to
expressly reflect its instruction that the jury had the option
of imposing a life sentence or a life sentence and a fine where
the jury found one or both of the aggravating factors to be
present.
As in Orbe, we agree that this issue is not controlled by
Atkins. However, we did not reach this issue in Atkins because
the verdict forms that were provided to the jury in that case
expressly provided that the jury had the option of imposing a
life sentence or a life sentence and a fine if it found one or
both of the aggravating factors to be present. In Orbe and
Burns this issue was not properly preserved. Here, Powell made
a proper request to have such language included in the verdict
forms provided to the jury.
The issue is not whether the jury was provided with the
means to discharge its obligation. If that were the only goal,
it could be achieved by providing the jury with a generic
verdict form and advising the jury to fill in the particulars of
the sentence from the instructions. Rather, the issue is
whether the jury is likely to be confused where it is instructed
that it may impose a sentence other than death if it finds one
or both of the aggravating factors have been proven beyond a
50
reasonable doubt, but receives verdict forms that do not
expressly state that the jury is allowed to fix a sentence of
life imprisonment even though one or both aggravating factors
are present.
The rationale of Atkins flows from the principle that “it
is materially vital to the defendant in a criminal case that the
jury have a proper verdict form.” Atkins, 257 Va. at 178, 510
S.E.2d at 456. That rationale may be extended to the provision
of jury verdict forms with sentencing options that accurately
and expressly correspond to the trial court’s sentencing
instruction. Accordingly, we hold that in a capital murder
trial, the trial court must give the jury verdict forms
providing expressly for the imposition of a sentence of
imprisonment for life and a fine of not more than $100,000 when
the jury finds that one or both of the aggravating factors have
been proven beyond a reasonable doubt.
IV. CONCLUSION
Having already determined that Powell’s conviction for
capital murder will be reversed, we now further determine that
there is no basis upon which Powell can be retried for capital
murder on remand. The poll of the jury establishes that Powell
was acquitted of the charge of capital murder in the commission
of robbery or attempted robbery. It is equally clear that there
is simply no evidence upon which the jury could have relied to
51
find that Powell committed or attempted to commit any sexual
assault against Stacey before or during her murder, or that the
rape of Kristie did not occur after the murder of her sister.
Accordingly, under the circumstances of this case, the evidence
at best would have supported a conviction for first degree
murder.
For these reasons, we will reverse Powell’s conviction for
capital murder, affirm his convictions for abduction, rape,
attempted capital murder, and grand larceny, and remand the case
for a new trial on a charge of no greater than first degree
murder for the killing of Stacey Reed, if the Commonwealth be so
advised.
Affirmed in part,
reversed in part,
and remanded.
52
Powell v. Commonwealth
Court: Supreme Court of Virginia
Date filed: 2001-06-08
Citations: 552 S.E.2d 344, 261 Va. 512
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