Remington v. Commonwealth

Present: All the Justices

JEFFERY A. REMINGTON
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 010579 September 14, 2001

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF BUENA VISTA
Thomas H. Wood, Judge

In this appeal, we review the capital murder conviction

and sentence of death imposed upon Jeffery Alan Remington.

I. Proceedings

Remington was tried before a jury on an indictment

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

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

deliberate, and premeditated killing of any person by a

prisoner confined in a state or local correctional facility."

Remington and Parker were inmates at the Augusta Correctional

Center at the time of Parker's death.

Upon motion of the defendant, and without objection from

the Commonwealth, the circuit court entered an order that

transferred the capital murder trial from Augusta County to

the City of Buena Vista. At the conclusion of the guilt phase

of the proceedings, the jury found Remington guilty of capital

murder.

In the penalty phase of the capital murder trial, the

jury fixed Remington's punishment at death, finding that he
represented a continuing serious threat to society and that

his conduct in committing the offense was outrageously or

wantonly vile, horrible, or inhuman in that it involved

torture, depravity of mind, or aggravated battery to the

victim. See Code § 19.2-264.2. The circuit court considered

a report prepared by a probation officer pursuant to Code

§ 19.2-264.5 and sentenced the defendant in accord with the

jury verdict.

II. The Evidence Adduced During the Guilt Phase

As required by familiar principles of appellate review,

we will recite the evidence presented at trial in the light

most favorable to the Commonwealth, the prevailing party in

the circuit court, and we will accord the Commonwealth the

benefit of all inferences fairly deducible from that evidence.

Dowden v. Commonwealth, 260 Va. 459, 461, 536 S.E.2d 437, 438

(2000).

On Sunday, January 16, 2000, the defendant, Parker,

Michael William Lenz, and three other inmates attended a

meeting of a group referred to as the Ironwood Kindred. The

meeting occurred in a room in Building J-5 at the Augusta

Correctional Center in Augusta County. Earl Jones, a

corrections officer, supervised the six inmates who attended

the meeting. A door separated Officer Jones from the inmates.

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However, the door contained a window which permitted Jones to

observe the inmates.

Officer Jones "saw a commotion in the room." As he

walked to the door, "three of the inmates ran out, and said

. . . 'They're stabbing him.' " Officer Jones saw the

defendant and Lenz stabbing Parker, who was "lying on the

floor." Jones testified that Parker was on his back "making a

feeble attempt to ward the knife strokes off from him. . . .

Remington was on Parker's right; and as Parker would put his

hand up, Remington would push [Parker's] hand aside, and stab

him with . . . the knife. Lenz was on the other side, and

doing basically the same thing."

Jones, who was unarmed, did not enter the room but opened

the door and told Remington and Lenz to stop stabbing Parker.

"They simply looked at [Jones], and went back to stabbing

Parker." Parker was not armed with any type of weapon.

Jones used his radio to summon help. Two corrections

officers, John Edward Simmons and Edward Lee Houching,

responded. Jones, accompanied by Simmons and Houching,

entered the room, and Simmons directed Remington and Lenz to

"drop their weapons." Lenz placed his weapon on a table, but

Remington "continued to hold onto his." Eventually, Remington

surrendered his "homemade kni[fe]" to the officers. Jones

testified that Remington "seemed really excited" and "happy."

3
 Corrections Officer Simmons testified that he "saw Inmate

Parker laying on the ground in a fetal position, with Inmate

Lenz and Inmate Remington standing over top of him, stabbing

him several times." Simmons saw Remington stab Parker

"[a]bout four or five times."

Corrections Officer Houching testified that when he

responded to the crime scene, he "saw Mr. Parker, laying on

the ground, in a fetal position. Inmate Lenz and Inmate

Remington were bent over, stabbing him." Remington stabbed

Parker "[a]round the chest area; the stomach — around the

stomach." Houching saw Remington stab Parker "eight to ten

times."

Rita K. Dietz, a registered nurse, rendered assistance to

Parker after the attack. When she entered the room where the

assault had occurred, Parker was "laying in the floor, and

there was a pool of blood around his chest area." Dietz

described Parker's condition as critical. She made that

assessment because of "[t]he amount of blood; all his chest

wounds — there was air coming out of his chest."

Dietz stated that Parker was placed on a stretcher "and

he helped to roll himself on the sheet, with us; and we lifted

him by the drawsheet . . . [a]nd, of course, blood was pouring

out. And we put him on the stretcher, and . . . we brought

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him to the front to meet the ambulance as fast as we could."

Parker died later that evening at a hospital.

Dr. Gregory Price Wenger, who was employed as an

Assistant Chief Medical Examiner for the Western District of

Virginia, performed an autopsy on Parker's body. Wenger

qualified as an expert witness on the subject of forensic

pathology. Wenger determined that Parker died from "multiple

sharp force injuries." Parker had 68 stab wounds to his body.

The wounds were "scattered over the surfaces of the body,

involving his chest, his abdomen, his back, his arm – his

right arm. [The wounds] penetrated vital internal organs."

Parker had seven stab wounds in the left lung and three stab

wounds in the right lung. Parker's liver contained seven stab

wounds.

In response to the question, "did any one of these stab

wounds by itself cause Mr. Parker to die?", Wenger replied:

"Certainly the ones internally, that produced the injuries to

the lungs and liver, were the most serious ones. There isn't

any safe place that you can stab people. All these [wounds]

had produced some bleeding. Together, just the large number

of stab wounds that he had, even the soft tissue ones

certainly contributed." Dr. Wenger testified that all the

wounds occurred when Parker was alive, and all the wounds

contributed to his death.

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 III. Evidence Adduced During the Penalty Phase

During the penalty phase of the trial, the Commonwealth

introduced the defendant's prior convictions for robbery,

abduction, rape, and use of a firearm during the commission of

robbery. The Commonwealth also relied upon evidence that it

presented during the guilt phase of the trial.

The defendant offered evidence in mitigation of his

offense. The defendant called Michael Lenz to the witness

stand. Lenz invoked his Fifth Amendment privilege against

self-incrimination and refused to testify. The defendant was

permitted to read to the jury portions of a transcript of

prior testimony that Lenz had given under oath.

According to Lenz's prior sworn testimony, Parker,

Remington, and Lenz were members of the Ironwood Kindred, a

group that practiced the Asatru religion. Lenz testified:

"[Parker and I had] been through a lot of times when – when it

was close to fighting. . . . And things just kept building

and building and building. And he had problems with me. And

I had problems with him. I didn't like the way that he was

portraying my religion to other people." During the inmates'

meeting on January 16, 2000, Lenz called Parker "up to the

altar." Lenz stated, "I asked – and I said to him, 'It's been

a long, hard path between us.' And he said, 'Yes, it is.'

And I pulled the knife out of my pocket. And I said, 'Are you

6
trying to take it to the next step?' And he said, 'Yes, I

am.' And so I stabbed him."

Lenz testified that when he started stabbing Parker,

"Jeffery attacked him. . . . Jeffery [Remington] attacked him

as well. And [Parker] wasn't ready for it. [Parker] was

surprised. He – he was probably just as surprised as the

people were at Pearl Harbor in 1941, though he shouldn't have

been. And then the other guys jumped up and – and tried to –

to jump on Jeffery Remington."

In 1999, Remington received an excellent rating on his

"inmate job performance review." He also received his general

education development certificate, commonly referred to as a

G.E.D., issued by the Virginia Department of Education while

he was incarcerated.

Joel Sickler, a criminologist and sentence consultant,

testified without objection from the Commonwealth. Sickler

stated that Remington "had a very troubled upbringing." His

parents were divorced when he was five years old, and his

biological father was "a tyrant, . . . an alcoholic, [and] a

very violent man." Remington was sexually molested as a

child. Remington, who has a history of drug addiction, began

to use drugs at age 14 or 15.

The defendant testified during the penalty phase. He

stated that he had been raped when he was an inmate in the

7
Greensville Correctional Facility. On another occasion at the

Powhatan Correctional Center, an inmate tried to rape him.

Remington testified that several inmates at the Augusta

Correctional Center had told him that they intended to rape

him, and he believed that Parker was involved in those threats

of rape. Remington also testified that Parker "threatened

[his] life." Remington informed Lenz about Parker's threats,

and Lenz directed Remington to arm himself with a knife.

Remington admitted that he intended to confront Parker at

the meeting on January 16, 2000. When asked, "[s]o you went

there armed with a deadly weapon, for a confrontation with Mr.

Parker, to find a solution to the situation?", Remington

responded: "I took the knife there for my protection."

Remington testified that Parker was incarcerated at the

Augusta Correctional Center because he had killed a man by

stabbing him with an ice pick.

IV. Issues Previously Decided

The defendant raised several issues on appeal which have

been decided adversely to his claims by our previous

decisions. Since we adhere to those rulings, we will not

discuss them further. The issues previously resolved are:

(i) Whether the circuit "court erred in denying

Remington's motion to strike the probability of future

dangerousness as a basis for imposition of the death penalty

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. . . , motion to strike future dangerousness and vileness as

a basis for imposition of the death penalty . . . , and motion

to declare the Virginia capital murder and death penalty

statutes unconstitutional . . . on grounds that the statutes

violate rights guaranteed by the Fifth, Sixth, Eighth, and

Fourteenth Amendments of the [United States] Constitution and

sections 8, 9 and 11 of Article 1 of the Virginia

Constitution." See Johnson v. Commonwealth, 259 Va. 654, 667,

529 S.E.2d 769, 776, cert. denied, 521 U.S. 981 (2000); Atkins

v. Commonwealth, 257 Va. 160, 173 & n.6, 510 S.E.2d 445, 453 &

n.6 (1999); Barnabei v. Commonwealth, 252 Va. 161, 178-79, 477

S.E.2d 270, 280 (1996), cert. denied, 520 U.S. 1224 (1997).

(ii) Whether the circuit "court erred in denying

Remington's motion to prohibit death-qualification of

prospective jurors or for separate juries, as a violation of

Remington's rights under the Virginia Constitution and under

the Sixth and Fourteenth Amendments to the [United States]

Constitution, as interpreted inter alia in Ballew v. Georgia,

435 U.S. 223 (1978)." See Yeatts v. Commonwealth, 242 Va.

121, 127, 410 S.E.2d 254, 258 (1991), cert. denied, 503 U.S.

946 (1992); Eaton v. Commonwealth, 240 Va. 236, 246, 397

S.E.2d 385, 391 (1990), cert. denied, 502 U.S. 824 (1991);

Pruett v. Commonwealth, 232 Va. 266, 277-78, 351 S.E.2d 1, 7-8

(1986), cert. denied, 482 U.S. 931 (1987).

9
 (iii) Whether the circuit "court's refusal to grant

Remington additional peremptory challenges violat[ed] his

rights under the Virginia and [United States] Constitutions."

See Atkins, 257 Va. at 173-74, 510 S.E.2d at 453-54; Strickler

v. Commonwealth, 241 Va. 482, 489, 404 S.E.2d 227, 232, cert.

denied, 502 U.S. 944 (1991).

(iv) Whether the circuit "court's denial of

[Remington's] motion for a bill of particulars violat[ed]

Remington's rights under the Virginia and federal

constitutions as well as [Code § 19.2-230]." See Walker v.

Commonwealth, 258 Va. 54, 62-63, 515 S.E.2d 565, 569-70

(1999); Strickler, 241 Va. at 490-91, 404 S.E.2d at 232-33;

Quesinberry v. Commonwealth, 241 Va. 364, 371-73, 402 S.E.2d

218, 223-24, cert. denied, 502 U.S. 834 (1991).

V. Pretrial Motions

Remington filed a motion requesting that the circuit

court enter an order requiring that the Commonwealth's

Attorney provide him the following:

"A.5. All memoranda, documents, and reports
to, from, or between law enforcement officers
connected with the subject matter of this case.

. . . .

"B.6. The existence and identification of each
occasion on which any potential witness has
testified before any court, grand jury, or other
tribunal or body or otherwise officially narrated in

10
 relation to any of the defendants, the
investigation, or the facts of this case.

"B.7. The existence and identification of each
occasion on which each potential witness who was or
is an informer, accomplice, or co-conspirator has
testified before any court, grand jury, or other
tribunal or body.

"B.8. Any and all information in any personnel
files for any potential witness that arguably could
be helpful or useful to the defense in impeaching or
otherwise detracting from the probative force of the
Commonwealth's evidence, including without
limitation the personnel file of any co-defendant
who is a potential witness and any official internal
affairs, internal investigation, or public integrity
investigation files relating to or connected with
any potential witness who was or is a law
enforcement officer.

. . . .

"B.11. All records and reports relating to any
witness, including:

"(a) all juvenile detention, jail, prison,
parole, probation, pre-sentence investigation, and
any social service agency records;

. . . .

"(c) all records of any detention or court
authority.

. . . .

"B.12. A list of all expert witnesses the
prosecution intends to call at trial, along with
each expert's qualification, the subject and a
description of his or her contemplated testimony,
and his or her report."

The defendant's motion also included the following

requests:

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 "B.15. The defendant moves for an Order
requiring the Commonwealth to give defendant access
to any and all evidence it may offer at any
sentencing proceeding herein pursuant to
section 19.2-264.4 of the Virginia Code, including
without limitation (a) the names and addresses of
all witnesses, a summary of their expected testimony
and with respect to expert witnesses, a copy of
their professional qualifications, resume or
curriculum vitae; (b) any evidence of unadjudicated
acts of misconduct for future dangerousness, and the
alleged dates and witnesses to such acts; (c) a copy
of any statement by a non-witness declarant to be
offered into evidence and (d) an opportunity to
inspect, test, and copy any physical evidence.

. . . .

"B.18. The defendant moves for an Order
requiring the Commonwealth's Attorney to disclose if
there was an informant involved in regard to the
investigation and charging of the indictments in
this case, regardless of whether said informant will
be called as a witness at trial, and to state the
name and address of the informant pursuant to
Roviaro v. United States, 353 U.S. 53 (1957), and
other pertinent authority, or claim the privilege
not to do so. If any undercover agent or informant
were [sic] employed by the Commonwealth, state the
method and amount of compensation paid the
undercover agent and whether he was a sworn law
enforcement officer, and if so, with which law
enforcement agency and on what date he was sworn in
as a law enforcement officer."

Remington claims that the circuit court's failure to

grant his requested discovery violated his rights under the

federal constitution and Art. I, § 8 of the Constitution of

Virginia. Remington's assertions are without merit.

Paragraphs 12 and 15 of the defendant's discovery request

were improper because he had no general right to discovery of

12
the Commonwealth's witnesses. We have consistently held that

a defendant does not have a "general right to discovery of

witness statements, reports, or other memoranda possessed by

the Commonwealth." Clagett v. Commonwealth, 252 Va. 79, 89,

472 S.E.2d 263, 269 (1996), cert. denied, 519 U.S. 1122

(1997); accord Bunch v. Commonwealth, 225 Va. 423, 436, 304

S.E.2d 271, 278, cert. denied, 464 U.S. 977 (1983).

According to Remington, he sought exculpatory evidence

and impeachment material in his discovery requests A.5, B.6,

B.7, B.8, B.11(a) and 11(c), and B.18. However, the circuit

court entered an order which required the Commonwealth "to

provide [to the defendant] all exculpatory evidence to impeach

witnesses." Because the Commonwealth was required to provide

Remington with all exculpatory evidence necessary to impeach

witnesses, his constitutional rights, if any, were not

abridged. Furthermore, the Commonwealth provided the

defendant "complete access to the Commonwealth's investigation

file," and the Commonwealth permitted the defendant to

"examine the Commonwealth's Attorney's entire prosecution

file."

Remington also asserts that the circuit court's refusal

to permit him to obtain the information sought in Paragraphs

B.7 and B.18 violated "his federal right to 'the disclosure of

an informer's identity, or of the contents of his

13
communication [that] is relevant and helpful to the defense of

the accused, or is essential to a fair determination of a

cause.' " Remington's contention is without merit. Remington

concedes that no informant testified at trial, and he fails to

articulate how such information would have been of assistance

to his defense. Therefore, we conclude that the circuit court

did not err in denying his discovery requests.

VI. Voir Dire Issues

The defendant argues that the circuit court erred by

removing two members of the jury panel from the venire because

of their religious convictions in violation of the First and

Fourteenth Amendments to the federal constitution and Article

I, §§ 11 and 16 of the Constitution of Virginia. The

defendant's contentions are without merit.

Sharon Martin testified as follows during voir dire:

"THE COURT: Do you have any religious,
philosophical, or moral beliefs which would prevent
or substantially impair your ability to convict a
person of a crime which potentially carried a death
penalty?

"MS. MARTIN: I don't believe in the death
penalty.

"THE COURT: You don't believe in it?

"MS. MARTIN: No.

"THE COURT: All right. Now, let me ask you,
Ms. Martin . . . The first question – and I just
want to go over it again. Are your beliefs . . . Is
your opposition to the death penalty such that you

14
would not – that you would never vote to convict a
person of a crime which could impose – which could
result in the death penalty?

"MS. MARTIN: I don't believe so.

"THE COURT: All right. Okay. So I guess it
goes without saying, then, that if the person were
convicted of capital murder, you would not vote for
the – would not ever vote for the death penalty?

"MS. MARTIN: I don't think I would ever.

"THE COURT: All right.

"[COMMONWEALTH'S ATTORNEY]: You feel very
strongly in your opposition against the death
penalty —

"MS. MARTIN: Yes. Yes.

"[COMMONWEALTH'S ATTORNEY]: . . . and you
could not impose a death penalty, no matter what the
evidence is?

"MS. MARTIN: I don't think I ever could.

. . . .

"[DEFENDANT'S ATTORNEY]: Ms. Martin, you – you
took an oath at the start of this thing, to – to do
what . . . your responsibilities are, and – and
. . . Suppose Judge Wood told you that the law of
Virginia is that under certain circumstances – and I
mean really horrible circumstances – the death
penalty is – is proper, appropriate; but that under
other circumstances, with mitigation, and question
marks, that it isn't appropriate . . . Do you think
that you could follow your oath, and impose the
death penalty, if the circumstances were such that,
'By golly, he's got it coming to him?'

"MS. MARTIN: I really don't believe in it."

Barbara Pentecost testified as follows:

15
 "THE COURT: Ms. Pentecost, at various stages
of this proceeding, the Court will be – will give
the instructions to the jury. The instructions
contain the law of the State that applies to this
case. And it will be the duty of the jury to follow
those instructions.

"I'm going to go over a couple of these with
you.

"The Defendant is presumed to be innocent. You
shall not assume that he is guilty because he has
been indicted and he's on trial. This presumption
of innocence goes with him throughout the trial, and
is enough to require you to find him not guilty
unless and until the Commonwealth proves each and
every element of the offense beyond a reasonable
doubt.

"Ms. Pentecost, do you understand that?

"MS. PENTECOST: Yes.

"THE COURT: Do you have any type of moral or
philosophical beliefs that would prevent you from
following that instruction?

"MS. PENTECOST: If it has anything to do with
the – the lethal injection . . . I do not believe in
that. I don't believe in that.

"THE COURT: All right.

"[COMMONWEALTH'S ATTORNEY]: Judge, could you
repeat what she said? I just couldn't hear any of
it.

"THE COURT: She said she doesn't believe in
lethal injection.

"MS. PENTECOST: Putting anyone to death – I
don't believe in that.

"THE COURT: All right. Well, let me just ask
you that next question then, Ms. Pentecost, to see
exactly how you feel about it – because we are
required to ask your views about the death penalty.

16
 "Would you . . . If you were on the jury, and
if the jury found a person guilty of capital murder
. . . Well, let me ask you this: Could you ever
vote to – to find a person guilty of capital murder?
If there – there was . . .

"MS. PENTECOST: I . . . I don't know. I think
if it was anything to do with putting him to death,
I don't think that I could do that.

"THE COURT: All right. Well, let me ask you
this one other question. In the event that they did
find him guilty of capital murder, which could carry
the death penalty, could you . . . Would you ever
impose – be able to impose a death penalty?

"MS. PENTECOST: I wouldn't vote to do it. I
. . . Anything to do with somebody's life . . . I –
I couldn't do that.

"THE COURT: All right. All right, Ms.
Pentecost.

. . . .

"[DEFENDANT'S ATTORNEY]: If you took an oath
to uphold the law of the State of Virginia, and the
law of the State of Virginia is that sometimes
people do things that – that they deserve the death
penalty, and sometimes they don't deserve the death
penalty, could you abide by your oath, and -- and
follow the law that the Judge instructs you about?

"MS. PENTECOST: I just wouldn't be able to
vote for somebody to be put to death. I couldn't do
that. I couldn't . . . That's my belief. That's
. . .

"[DEFENDANT'S ATTORNEY]: Well, you may or may
not vote for it, but would you consider it?

"MS. PENTECOST: I don't think I could live
with myself if I had anything to do with putting
someone to death."

17
 On appeal, we must give deference to the circuit court's

determination whether to exclude a prospective juror because

that court was able to see and hear the prospective juror

respond to questions posed. Green v. Commonwealth, 262 Va.

105, 115, 546 S.E.2d 446, 451 (2001). The circuit court is in

a superior position to determine whether a prospective juror's

responses during voir dire indicate that the prospective juror

would be impaired or prevented from performing the duties of a

juror. Schmitt v. Commonwealth, 262 Va. 127, 139, 547 S.E.2d

186, 195 (2001); Lovitt v. Commonwealth, 260 Va. 497, 510, 537

S.E.2d 866, 875 (2000); Vinson v. Commonwealth, 258 Va. 459,

467, 522 S.E.2d 170, 176 (1999), cert. denied, 530 U.S. 1218

(2000). And, the circuit court's decision to remove a juror

for cause will not be reversed on appeal unless that decision

constitutes manifest error. Green, 262 Va. at 116, 546 S.E.2d

at 451; Schmitt, 262 Va. at 139, 547 S.E.2d at 195; Clagett,

252 Va. at 90, 472 S.E.2d at 269; Roach v. Commonwealth, 251

Va. 324, 343, 468 S.E.2d 98, 109, cert. denied, 519 U.S. 951

(1996). We have also stated that a prospective juror should

be excluded for cause based on the juror's views about the

death penalty if those views would "substantially impair or

prevent the performance of a juror's duties in accordance with

his oath and the court's instructions." Schmitt, 262 Va. at

139, 547 S.E.2d at 195.

18
 Contrary to Remington's assertions, the record clearly

indicates that Martin and Pentecost were not removed from the

venire because of their religious beliefs. Rather, Martin and

Pentecost stated that they would not vote to impose the

penalty of death. We hold that the circuit court did not err

in removing Martin and Pentecost from the jury panel because

their responses demonstrated that their personal objections to

the death penalty would have substantially impaired or

prevented them from performing their duties as jurors. See

Schmitt, 262 Va. at 139, 547 S.E.2d at 195; Vinson, 258 Va. at

468, 522 S.E.2d at 176; Barnabei, 252 Va. at 173, 477 S.E.2d

at 277; Yeatts, 242 Va. at 134-35, 410 S.E.2d at 262-63.

VII. Guilt Phase Issues

A.

Remington moved to strike the Commonwealth's evidence on

the basis that the evidence did not establish that he had

inflicted the fatal wounds upon Parker. The circuit court

denied the motion. Remington argues in this Court that the

circuit court erred in denying his motion because "only the

immediate slayer may be tried for capital murder; others, such

as Remington, may be tried only for first degree murder. . . .

For the same reasons, the [circuit] court erred in denying

[Remington's] proffered [jury] instructions . . . which

accurately state law explaining Virginia's 'triggerman rule'

19
and the exclusion of principals in the second degree from

eligibility for capital murder."

Remington's contentions are without merit. In Coppola v.

Commonwealth, 220 Va. 243, 256-57, 257 S.E.2d 797, 806 (1979),

cert. denied, 444 U.S. 1103 (1980), we held that a defendant

who "jointly participated in [a] fatal beating" was subject to

conviction and punishment for capital murder when the other

requisite elements were established. In Strickler, we held

that when two or more persons took a direct part in inflicting

fatal injuries, each participant in the murder was an

immediate perpetrator for purposes of the capital murder

statutes. 241 Va. at 495, 404 S.E.2d at 235.

In the present case, the evidence established beyond a

reasonable doubt that Remington and Lenz jointly participated

in the fatal stabbing of Parker. As we have already stated,

Remington stabbed Parker in the chest and stomach area at

least "eight to ten times" and, according to the medical

examiner, Parker sustained 68 separate stab wounds, all of

which contributed to his death. Thus, the circuit court did

not err in denying Remington's motion to strike.

The defendant argues that even if the circuit court did

not err in denying his motion to strike, "there is certainly

sufficient evidence upon which a reasonable jury could [have

found that the defendant was] merely a principal in the second

20
degree." Continuing, the defendant says that the circuit

court "erred in withholding that option from the jury by

refusing to give [his] proffered instructions 5E, 6F, and 9I."

We disagree.

The defendant's proffered instruction 5E would have

instructed the jury that he was a principal in the second

degree unless he inflicted the fatal blows that caused

Parker's death. We rejected an identical instruction that was

proffered in Strickler because such instruction was premised

upon the theory that the killing in that case was accomplished

by a sole perpetrator, and there was no evidence of record

which would have supported that theory. See Strickler, 241

Va. at 495, 404 S.E.2d at 235. The circuit court properly

refused the proposed instruction in this case because the

evidence of record does not support the theory that Lenz acted

alone. Rather, the evidence established beyond a reasonable

doubt that Remington and Lenz jointly participated in Parker's

death.

The defendant's proposed instruction 6F would have

instructed the jury that Remington must have been an active

and immediate participant in the murder. The circuit court

properly refused that instruction because that legal principle

was included in other instructions given to the jury. Burns

v. Commonwealth, 261 Va. 307, 343, 541 S.E.2d 872, 895 (2001);

21
Jackson v. Commonwealth, 255 Va. 625, 650, 499 S.E.2d 538, 554

(1998), cert. denied, 525 U.S. 1067 (1999); Stockton v.

Commonwealth, 227 Va. 124, 145, 314 S.E.2d 371, 384, cert.

denied, 469 U.S. 873 (1984); Howard v. Commonwealth, 210 Va.

674, 679, 173 S.E.2d 829, 833 (1970).

The defendant's proposed jury instruction 9I would have

instructed the jury that if it believed that "Parker had

already been fatally wounded by Michael Lenz before Remington

entered into the attack upon Parker, or if [it had] a

reasonable doubt thereof, then [it] shall find Remington not

guilty of capital murder." The circuit court did not err in

refusing this instruction because the substance of this

instruction was included in other instructions given by the

court. Id.

B.

Remington argues that the circuit court erred in failing

to give the jury his "proffered instructions on the law of

grades of homicide and of lesser-included offenses to capital

murder when the evidence supported those instructions."

Remington's proffered instruction 1A would have informed the

jury that "[e]very unlawful homicide is presumed in law to be

murder in the second degree." Proffered instruction 12L would

have informed the jury that if it found the defendant was not

guilty beyond a reasonable doubt of capital murder, first-

22
degree murder, or second-degree murder, the jury could find

the defendant guilty of malicious wounding. Proposed

instruction 13M would have instructed the jury about the

different grades of homicide, and if the jury had a reasonable

doubt as to whether the defendant was guilty of capital murder

or second-degree murder, the jury was required to find him

guilty of second-degree murder. The defendant's proffered

instruction AA would have instructed the jury that once the

Commonwealth proved an unlawful killing, the jury was entitled

to infer that there was malice and the act was murder in the

second degree. The defendant's proffered instruction CC would

have instructed the jury about the elements of second-degree

murder. The defendant's proposed instruction DD would have

explained to the jury, among other things, that if the jury

had a reasonable doubt whether the defendant was guilty of

first-degree murder or second-degree murder, it was required

to find him guilty of second-degree murder.

The circuit court did not err in refusing the defendant's

proposed jury instructions. The evidence of record does not

support jury instructions for second-degree murder or

malicious wounding. As we stated in Buchanan v. Commonwealth,

238 Va. 389, 409, 384 S.E.2d 757, 769 (1989), cert. denied,

493 U.S. 1063 (1990), "[a] second degree murder instruction is

only appropriate where it is supported by the evidence."

23
Accord Justus v. Commonwealth, 222 Va. 667, 678, 283 S.E.2d

905, 911 (1981), cert. denied, 445 U.S. 983 (1982); see also

Commonwealth v. Donkor, 256 Va. 443, 445, 507 S.E.2d 75, 76

(1998) (applying the same principle to a proffered instruction

for malicious wounding). 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; accord

Orbe v. Commonwealth, 258 Va. 390, 398, 519 S.E.2d 808, 813

(1999), cert. denied, 529 U.S. 1113 (2000); Hatcher v.

Commonwealth, 218 Va. 811, 814, 241 S.E.2d 756, 758 (1978).

C.

The defendant argues that the evidence of premeditation

was insufficient as a matter of law and, therefore, his

capital murder conviction must be set aside. We disagree with

the defendant.

We have stated that the "question whether a defendant is

guilty of a premeditated killing of the victim is usually a

jury question. The intention to kill need not exist for any

specified length of time prior to the actual killing; the

design to kill may be formed only a moment before the fatal

act is committed provided the accused had time to think and

did intend to kill." Weeks v. Commonwealth, 248 Va. 460, 477,

450 S.E.2d 379, 390 (1994), cert. denied, 516 U.S. 829,

(1995); accord Clozza v. Commonwealth, 228 Va. 124, 134, 321

24
S.E.2d 273, 279 (1984), cert. denied, 469 U.S. 1230 (1985);

Akers v. Commonwealth, 216 Va. 40, 48, 216 S.E.2d 28, 33

(1975); Bradshaw v. Commonwealth, 174 Va. 391, 399, 4 S.E.2d

752, 755 (1939); see also Breard v. Commonwealth, 248 Va. 68,

84, 445 S.E.2d 670, 680, cert. denied, 513 U.S. 917 (1994).

Additionally, we stated in Smith v. Commonwealth, 220 Va.

696, 700-01, 261 S.E.2d 550, 553 (1980):

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

Accord Rhodes v. Commonwealth, 238 Va. 480, 485, 384 S.E.2d

95, 98 (1989). We hold that the evidence in this case was

sufficient to permit the jury to find that the defendant acted

with premeditation. Certainly, the jury was entitled to find

that the defendant had a specific intent to kill the victim,

based upon the defendant's acts of stabbing the victim at

least eight to ten times in the stomach and chest.

25
 Remington also argues that the circuit court erred in

refusing to give his proffered jury instructions 2B, 3C, or

4D, which explained premeditation. Proffered instruction 2B

would, among other things, have defined the word

"premeditation." Instruction 3C would have instructed the

jury regarding capital murder, second-degree murder, and

premeditation. Proffered instruction 4D would have instructed

the jury regarding capital murder, second-degree murder, and

premeditation.

The circuit court properly refused the proposed

instructions. As we have already concluded, the evidence of

record does not support a finding of second-degree murder and,

therefore, the defendant's proposed instructions 3C and 4D

were improper. The circuit court was not required to give

instruction 2B, which purportedly defined premeditation,

because that instruction was duplicative of another

instruction which instructed the jury on premeditation.

VIII. Penalty Phase

A.

Remington argues that the circuit court erred in

admitting the post-sentence report because the report did not

contain a victim impact statement and, therefore, he is

entitled to a new sentencing hearing. We disagree.

Code § 19.2-264.5 states:

26
 "When the punishment of any person has been
fixed at death, the court shall, before imposing
sentence, direct a probation officer of the court to
thoroughly investigate the history of the defendant
and any and all other relevant facts, to the end
that the court may be fully advised as to whether
the sentence of death is appropriate and just.
Reports shall be made, presented and filed as
provided in § 19.2-299 except that, notwithstanding
any other provision of law, such reports shall in
all cases contain a Victim Impact Statement. Such
statement shall contain the same information and be
prepared in the same manner as Victim Impact
Statements prepared pursuant to § 19.2-299.1. After
consideration of the report, and upon good cause
shown, the court may set aside the sentence of death
and impose a sentence of imprisonment for life."

As we have stated, the Crime Victim and Witness Rights

Act, of which Code § 19.2-264.5 is a part, was enacted to

"preserve the right of victims of crimes to have the impact of

those crimes upon their lives considered as part of the

sentencing process, if that is their wish, and to protect

their privacy thereafter." Beck v. Commonwealth, 253 Va. 373,

384, 484 S.E.2d 898, 905, cert. denied, 522 U.S. 1018 (1997).

The statutory requirement that a post-sentence report contain

a victim impact statement does not confer any rights upon a

capital murder defendant, and the defendant was not prejudiced

by the omission of a victim impact statement in the post-

sentence report.

Remington also argues that the post-sentence report

contained hearsay statements and that the parole officer who

prepared the report did not verify information contained in a

27
prior report upon which she relied. The defendant claims that

the circuit court abused its discretion in accepting the post-

sentence report, and he is entitled to a new sentencing

proceeding.

We disagree with the defendant. In Stamper v.

Commonwealth, 220 Va. 260, 279, 257 S.E.2d 808, 821 (1979),

cert. denied, 445 U.S. 972 (1980), we stated:

"Code § 19.2-264.5 provides only that a
thorough investigation be conducted; it does not
specify that any particular procedure be used in
compiling the report or that any particular
information be included therein. Decisions
concerning such matters must by necessity be left
largely to the discretion of the trial court and the
individual probation officer."

We hold that the circuit court did not abuse its

discretion in admitting the post-sentence report. The

probation officer who compiled the report relied upon

information that she had gathered from an earlier pre-sentence

report. She verified the information with the defendant.

Remington, just as the defendant in Stamper, was given the

opportunity to cross-examine the probation officer thoroughly

on the report and to introduce relevant evidence on his own

behalf to supplement or contradict the report. See Stamper,

220 Va. at 279, 257 S.E.2d at 821. And, we also observe that

we have held that a post-sentence report may contain hearsay

statements. Johnson, 259 Va. at 667-68, 529 S.E.2d at 776;

28
Breard, 248 Va. at 75, 445 S.E.2d at 675; O'Dell v.

Commonwealth, 234 Va. 672, 701-02, 364 S.E.2d 491, 507-08,

cert. denied, 488 U.S. 871 (1988).

B.

The defendant contends that the circuit court "erred in

employing instruction 9 in the sentencing phase, and in

failing to give Remington's proposed instruction AAA . . . .

Failure to give proffered instruction AAA in place of

instruction 9 presented the jury with an unconstitutionally

vague term, 'probability,' that provided constitutionally

inadequate guidance to jurors on the critical sentencing issue

of future dangerousness." We disagree with the defendant.

Proffered instruction AAA would have required the jury to

conclude that there was "an overwhelming probability that [the

defendant] would commit criminal acts of violence that would

constitute a continuing serious threat to society," in order

to impose the death penalty based upon the future

dangerousness aggravating factor. Consistent with Code

§ 19.2-264.4(C), instruction 9 defined future dangerousness as

"a probability that [the defendant] would commit criminal acts

of violence that would constitute a continuing serious threat

to society." Contrary to Remington's assertions, this Court

has held that the statutory definition of future dangerousness

is not unconstitutionally vague. See Johnson, 259 Va. at 667,

29
529 S.E.2d at 776; Atkins, 257 Va. at 173 & n.6, 510 S.E.2d at

453 & n.6; Barnabei, 252 Va. at 178-79, 477 S.E.2d at 280.

Therefore, the circuit court did not err by refusing to grant

proffered instruction AAA.

C.

The defendant argues that the circuit court erred in

refusing his motion to impose a life sentence based upon

mandatory proportionality principles because, the defendant

says, "no other Virginia cases with similar facts involving

the inmate victims have resulted in the death penalty." The

defendant's contention is without merit. Contrary to the

defendant's assertion, the circuit court was not required to

conduct a proportionality analysis. Lovitt, 260 Va. at 518,

537 S.E.2d at 880.

We do note, however, that Code § 19.2-264.5 permits a

circuit court, upon good cause shown, to set aside the

sentence of death and impose a sentence of imprisonment for

life. However, the circuit court refused to do so and

concluded that "the evidence clearly justifies what the jury

has done" and that there was no question that the imposition

"of the death penalty in this case is proportionate."

D.

The defendant argues that the circuit court erred "in

employing a verdict form in the sentencing phase that was

30
defective for three reasons, the first of which is that the

form did not specify clearly to the jury that it could find

either or both aggravating factors and still impose a life

sentence based on mitigation evidence. Second, it made no

reference to the reasonable doubt standard by which such

factors must be found; it thereby conflicted [with]

instructions given to the jury. . . . Third, the verdict form

in its final paragraph implied that, even if the Commonwealth

failed to prove an aggravating factor, a life sentence could

not be imposed unless there was some quantum of mitigating

evidence in the case."

We will not consider the defendant's contentions because

they are procedurally defaulted. At trial, the defendant

objected to the penalty phase verdict form solely on the basis

that the form did not modify the term "probability" in the

definition of future dangerousness with the word

"overwhelming." On appeal, he asserts for the first time that

the verdict form was defective for the reasons discussed in

Atkins, 257 Va. at 177-79, 510 S.E.2d at 456-57. We hold that

any questions concerning the verdict form in this case are

procedurally defaulted because the defendant did not raise

these issues in the circuit court. Rule 5:25; Lenz v.

Commonwealth, 261 Va. 451, 472, 544 S.E.2d 299, 311 (2001);

31
Burns, 261 Va. at 343 n.16, 541 S.E.2d at 896 n.16; Orbe, 258

Va. at 403 n.13; 519 S.E.2d at 816 n.13.

E.

The defendant argues that the circuit court erred in

granting the Commonwealth's motion in limine to exclude

reference to the victim's murder conviction and life sentence.

Continuing, the defendant says that the court erred in

instructing the jury to disregard a question his counsel

raised about the victim's criminal record after the court

admitted evidence of the victim's murder conviction because

such testimony was relevant to the defendant's state of mind.

Additionally, the defendant argues that the circuit court's

ruling violated Code § 19.2-264(B), this Court's prior

decisions, and the defendant's constitutional rights to

present mitigation evidence. We disagree with the defendant's

contentions.

Code § 19.2-264.4(B) states:

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

32
 felony was committed while the defendant was under
the influence of extreme mental or emotional
disturbance, (iii) the victim was a participant in
the defendant's conduct or consented to the act,
(iv) at the time of the commission of the capital
felony, the capacity of the defendant to appreciate
the criminality of his conduct or to conform his
conduct to the requirements of law was significantly
impaired, (v) the age of the defendant at the time
of the commission of the capital offense or (vi)
mental retardation of the defendant."

Code § 19.2-264.4(B) simply did not require the circuit

court to admit in evidence the victim's criminal history. The

defendant wanted to introduce evidence of the victim's prior

criminal record to show that the victim had been convicted of

murder, which was not relevant to any issues in this

proceeding. Parker's prior conviction had no relevance to the

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

showed depravity of mind, and the victim's criminal record was

not relevant to the issue whether the defendant would

constitute a serious, continuing threat to society. Lenz, 261

Va. at 466, 544 S.E.2d at 307. And, as we have recently held,

generally, a defendant does not have a constitutional right to

present evidence of a victim's criminal history. Id.

F.

The defendant argues that the circuit court erred in

denying his motion to set aside the verdict or grant a new

sentencing hearing because he was denied "constitutional due

process and his common law right and right under . . . Code

33
§ 19.2-259 in that [he] was absent from the courtroom during

the jury's entire sentence deliberation through action of the

Commonwealth." We disagree with the defendant.

Counsel concluded their closing arguments in the penalty

phase on August 23, 2000. With the consent of the defendant

and the Commonwealth, the jury was given the option of

beginning deliberations that evening or the following morning.

The jury decided to return the following morning to commence

deliberations. The jury returned at 9:00 the next morning and

went directly into the jury room to commence deliberations.

At 8:30 that same morning, Remington, who was wearing an

electronic restraining belt, was accidentally shocked. He was

taken to a hospital for observation. When Remington's defense

counsel arrived at the courthouse, the circuit court informed

them what had happened and asked whether defense counsel had

any objections to deliberations proceeding in Remington's

absence. Counsel had no objections, and the defendant's lead

counsel stated, "I think we should go ahead."

During a later hearing, the circuit court made findings

about the sequence of events relevant to our disposition of

the defendant's contentions because the circuit court wanted

to be sure that the record accurately reflected those events.

"THE COURT: Closing arguments and the jury
instructions on the penalty phase were all concluded
on the afternoon of the twenty-third of August. And

34
at that point, the jury, with the consent of both
sides – both sides . . . The jury was given the
option of – of continuing their deliberations at
that point, or for going home for the evening and
returning at nine o'clock in the morning. And they
– they opted to go home, and return for the fourth
day of the trial, at nine o'clock.

"[DEFENDANT'S COUNSEL]: Yes, sir.

"THE COURT: Your recitation of the facts seems
to indicate that the jury came into the Courtroom,
was convened, and sent out. That isn't what
happened. The jury went directly to the jury room.
This jury never had any inkling that Mr. Remington
wasn't here. There was no reason – no way in the
world – for them ever to know that. There were no
communications between this Court, or any Bailiff of
this Court, with that jury, that would indicate that
Mr. Remington wasn't here.

"The jury went out at 9:00. The jury verdict
was actually received by this Court at 11:10. And
what in effect happened was that the jury returned
. . . The jury knocked on the door at 10:40, the
time – is the time I report. And they were advised
by the Bailiff that there would be a delay, to –
they would have to remain in the jury room until –
until we could resume. And then Mr. Remington was
returned at 11 o'clock.

"So that's what happened. But I . . . If
you're suggesting that somehow this jury was present
in the Courtroom, in the jury box, when the
Defendant wasn't here – that – that didn't – that
never happened."

"[DEFENDANT'S COUNSEL]: I'm not suggesting
that.

"THE COURT: Okay. All right. I just wanted
to make sure of that.

. . . .

"THE COURT: Because there isn't [any] question
about the fact that this man – there was an . . .

35
 And I don't know what happened. He had a security
device on him, and it – he received a shock. And we
were advised – all of us were advised that he was
taken to the hospital for a – for tests, and some
observation – whatever; and that he was gone from
approximately nine o'clock until approximately 11
o'clock. That's – that's a fact. And the jury did
deliberate during that process."

Rejecting the defendant's motion to set aside the verdict

because he was not present during the jury's deliberations,

the circuit court stated:

"With respect to the absence of the Defendant
. . . Gentlemen, you know, he . . . I suppose the
record needs to reflect that Mr. Remington wasn't
present in the Courtroom during the deliberations on
the guilt phase; that Mr. Remington was, at all
stages of this proceeding, in custody. In fact, he
was serving a life sentence, plus — plus . . . a
number of years. And he in fact was in a holding
cell. He was never in the Courtroom during the
deliberations. No Defendant who is in custody is
ever in the Courtroom during deliberations. They're
always in some secure place — for those Courtrooms
that have a secure place.

"The jury deliberations were in private. There
were no questions. There were no communications
between any officer of this Court, and – with this
jury. And no rulings were made . . . In fact,
nothing happened out of the absence – or out of the
presence of this Defendant. And, in fact, the Court
was requested to allow the jury to deliberate; and
the Court did that – at the request of counsel.

"So I'm going to overrule that Motion."

The circuit court did not err in denying the defendant's

motion to set aside the jury verdict. Initially, we point out

that the defendant waived any purported claim that he might

have had because his counsel specifically agreed to permit the

36
jury to begin its deliberations in the defendant's absence.

Additionally, this defendant would not have been present in

the courtroom while the jury was deliberating. As the circuit

court pointed out, for security reasons, a defendant in

custody would have been placed in a holding cell during the

jury's deliberations. And, the jury was unaware that the

defendant was in a hospital, away from the courthouse.

Furthermore, the defendant's absence from the courthouse

while the jury was deliberating did not violate Code § 19.2-

259. This statute provides in relevant part that "[a] person

tried for felony shall be personally present during the

trial." The phrase, "during the trial," means "every stage of

the trial from his arraignment to his sentence, when anything

is to be done which can affect his interest." Palmer v.

Commonwealth, 143 Va. 592, 605, 130 S.E. 398, 402 (1925);

accord Jones v. Commonwealth, 227 Va. 425, 428, 317 S.E.2d

482, 483-84 (1984). Code § 19.2-259 does not require a

defendant's presence in the courtroom while a jury is

deliberating in another room. We have stated that a defendant

"must be present on his arraignment, when any evidence is

given or excluded, when the jury is charged, when the trial

court wishes to communicate with the jury in answering

questions by [it], and when the jury receives further

instructions." Palmer, 143 Va. at 605, 130 S.E.at 402. We

37
have not held, and expressly decline to hold, that a defendant

has a statutory right to be in a courtroom while the jury is

deliberating in another room.

We recognize that the Fourteenth Amendment due process

clause and the Sixth Amendment to the federal constitution

confer upon a defendant the right to be present at trial. For

instance, the Supreme Court has stated:

"The Court has assumed that, even in situations
where the defendant is not actually confronting
witnesses or evidence against him, he has a due
process right 'to be present in his own person
whenever his presence has a relation, reasonably
substantial, to the fullness of his opportunity to
defend against the charge.' Snyder v.
Massachusetts, 291 U.S. 97, 105-106 (1934).
Although the Court has emphasized that this
privilege of presence is not guaranteed 'when
presence would be useless, or the benefit but a
shadow,' id., at 106-107, due process clearly
requires that a defendant be allowed to be present
'to the extent that a fair and just hearing would be
thwarted by his absence,' id., at 108. Thus, a
defendant is guaranteed the right to be present at
any stage of the criminal proceeding that is
critical to its outcome if his presence would
contribute to the fairness of the procedure."

Kentucky v. Stincer, 482 U.S. 730, 745 (1987); accord United

States v. Gagnon, 470 U.S. 522, 526-27 (1985). However,

neither the federal constitution nor the common law of this

Commonwealth confers upon a defendant, who would have

otherwise been confined in a holding cell, a right to be

present in a courtroom while the jury is in a different room

deliberating, and nothing has occurred in the courtroom which

38
would have affected the defendant's interests. As the circuit

court found, the jury deliberations were conducted in private;

there were no questions from the jury; there were no

communications between any officer of the court and the jury;

and no rulings were made. As the circuit court stated,

"nothing happened . . . out of the presence of [the]

Defendant." Accordingly, we hold that the defendant's rights

were not violated.

IX. Statutory Review

A.

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

whether the sentence of death in this case was imposed under

the influence of passion, prejudice, or any other arbitrary

factor. Remington does not contend that the sentence of death

imposed upon him was under the influence of passion,

prejudice, or other arbitrary factor. Nonetheless, we have

reviewed the evidence of record, and we find no evidence that

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

the circuit court's sentencing decision.

B.

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

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

disproportionate to the penalty imposed in similar cases,

considering both the crime and the defendant." Pursuant to

39
Code § 17.1-313(E), we have accumulated the records in all

capital murder cases reviewed by this Court. The records

include not only those capital murder cases in which the death

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

court or jury imposed a life sentence, and the defendant

petitioned this Court for an appeal.

C.

The defendant argues that "this Court should impose a

life sentence because death is 'excessive or disproportionate

to the penalty imposed in similar cases.' " Continuing, the

defendant says that this Court has previously approved the

death penalty for an inmate convicted of capital murder of

another inmate in only one case, Payne v. Commonwealth, 233

Va. 460, 357 S.E.2d 500, cert. denied, 484 U.S. 933 (1987).

The defendant also requests that this Court consider the

records of three inmates who were charged with the capital

murder of other inmates and who were not sentenced to death.

We have held that when conducting our proportionality

review, we must determine whether other sentencing bodies in

this Commonwealth generally impose the supreme penalty for

comparable or similar crimes, considering both the crime and

the defendant. Lenz, 261 Va. at 470, 544 S.E.2d at 310.

Thus, the fact that the defendant was an inmate, who killed

another inmate, is only one factor that we consider in

40
determining whether other juries generally impose the sentence

of death for similar crimes. As we recently held, Code

§ 17.1-313(C)(2) "does not require that this Court confine its

review to crimes that are identical; rather, we consider

comparable or similar crimes." Lenz, 261 Va. at 471, 544

S.E.2d at 310.

We have examined the records in all capital murder cases

previously reviewed by this Court when, as here, the death

penalty was imposed based upon Code § 18.2-31(3), the capital

murder of any person while the defendant was confined in a

state or local correctional facility. See Lenz v.

Commonwealth, 261 Va. 451, 544 S.E.2d 299; Payne v.

Commonwealth, 233 Va. 460, 357 S.E.2d 500. As requested by

the defendant, we have reviewed the records of the three

inmates who were charged with the capital murder of other

inmates, but were not sentenced to death. Additionally, we

have examined the records in all capital murder cases

previously reviewed by this Court when the sentence of death

was based upon vileness and future dangerousness, and the

victim died as a result of multiple stabbings. See Lenz v.

Commonwealth, 261 Va. 451, 544 S.E.2d 299; Johnson v.

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

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

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

41
S.E.2d 670; Murphy v. Commonwealth, 246 Va. 136, 431 S.E.2d

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

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

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

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

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

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

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

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

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

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

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

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

Our examination of these decisions, as well as capital

cases resulting in life imprisonment, demonstrates that the

defendant's sentence of death is neither excessive nor

disproportionate when compared to sentences generally imposed

by sentencing bodies in this jurisdiction for comparable or

similar crimes.

X.

Having reviewed the sentence of death, finding no

reversible error in the record, and perceiving no reason to

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

circuit court.

42
 Affirmed.

43