Present: All the Justices
MARK A. SHEPPARD
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record Nos. 950760 November 3, 1995
and 950761
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
On Sunday, November 28, 1993, Richard A. Rosenbluth and
Rebecca W. Rosenbluth, his wife, were murdered in their
Chesterfield County home. The police discovered their bodies
there two days later; multiple gunshot wounds were found in each
body. On December 3, 1993, near 5:00 a.m., defendant Mark A.
Sheppard was arrested in Henrico County after he was apprehended
while preparing to set fire to Mr. Rosenbluth's Nissan Pathfinder
motor vehicle.
Subsequently, defendant, age 23, was charged in nine
indictments as follows: three indictments for capital murder,
two indictments for robbery, and four indictments for using a
firearm in the commission of a felony. Two capital murder
indictments were based upon allegations of killing the
Rosenbluths during the commission of robbery. Code § 18.2-31(4).
The third indictment for capital murder was based on the charge
of killing Mr. Rosenbluth as part of the same act or transaction
as the killing of Mrs. Rosenbluth. Code § 18.2-31(7).
Prior to defendant's September 1994 trial, Andre L. Graham
was tried on charges of capital murder for the same offenses and
given a life sentence. See Graham v. Commonwealth, 250 Va. ___,
___ S.E.2d ___ (1995), decided today. Both men also were alleged
to have committed other violent crimes recently in the Richmond
Metropolitan Area. See, e.g., Graham v. Commonwealth, 250 Va.
79, 459 S.E.2d 97 (1995).
Following a six-day trial, a jury found defendant guilty of
all charges. The jury fixed his punishment at 20 years'
imprisonment on each of the robbery convictions and assessed a
total of 18 years' imprisonment for the four firearm convictions.
After a separate sentencing proceeding on the capital murder
convictions, the jury imposed two death sentences--one for
killing each of the victims--based upon the vileness and future
dangerousness predicates of the capital murder sentencing
statute. Code § 19.2-264.2. Subsequently, the trial court
considered a probation officer's report and, after a December
1994 hearing, sentenced defendant in accordance with the jury's
verdicts.
The death sentences are before us for automatic review under
Code § 17-110.1(A), see Rule 5:22, and we have consolidated this
review with defendant's appeal of the capital murder convictions.
Code § 17-110.1(F). In addition, by order entered in April
1995, we have certified the appeals of the noncapital convictions
from the Court of Appeals; the effect of the certification is to
transfer jurisdiction over the noncapital appeals to this Court
for all purposes. Code § 17-116.06(A). We have consolidated
those appeals (Record No. 950761) with the appeal of the capital
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murders (Record No. 950760).
The defendant does not assign error attacking the noncapital
convictions. Additionally, he does not ask us to reverse those
convictions. Therefore, we will make no further specific
reference to the validity of those convictions, and they will be
affirmed.
In accordance with settled principles of appellate review,
we shall consider the facts relating to the capital murder
convictions in the light most favorable to the Commonwealth,
which prevailed below.
When the victims' bodies were discovered in their home on
Tuesday, November 30, 1993, the house had been ransacked, but
there was no sign of forced entry into the residence. Many items
of the couple's jewelry and other personal property, including
their two motor vehicles, were missing from the premises. The
victims were last seen alive at their home on the previous Sunday
morning.
The bodies were found in the den of the residence. Mr.
Rosenbluth, age 40, had sustained two gunshot wounds from "close
range." One gunshot entered the left eye and went into the
cranial cavity causing damage to the spinal cord and the brain.
The other gunshot entered the right side of the nose, went into
the cranial cavity, and damaged the brain. Both wounds were
lethal.
Mrs. Rosenbluth, age 35, had sustained four gunshot wounds
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to the head and neck region, also from close range. All her
wounds were "potentially lethal."
Expert testimony fixed the victims' time of death as between
24 to 48 hours prior to the discovery of their bodies. There was
no evidence of any "struggle" by the victims "prior to the shots
being fired." Autopsies revealed that the victims had ingested
alcohol and cocaine within hours of their deaths.
Both of the husband's gunshot wounds and two of his wife's
wounds were inflicted by a handgun that was linked to the
defendant, a .38 caliber revolver. The wife's other two wounds
were inflicted by a .45 caliber automatic handgun belonging to
Andre Graham. That weapon was found in the apartment of Graham's
girlfriend on December 3, the day Graham also was arrested after
having driven defendant to the site where the Rosenbluths'
Pathfinder vehicle was parked when defendant prepared to set fire
to it. Defendant's .38 caliber revolver has not been recovered.
In addition to ballistics evidence, other evidence linked
both defendant and Graham to the homicides. Defendant's
fingerprint was identified on a package of razor blades found on
the kitchen table in the victims' home when the bodies were
discovered. Many of the surfaces at the crime scene had been
"wiped clean" in an obvious effort by the assailants to "cover
their tracks" and obliterate fingerprints.
Also, on Monday and Tuesday following the murders, defendant
and Graham took the victims' two motor vehicles, the Pathfinder
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and a Honda sedan, to two body shops for estimates on repainting
the vehicles. On Wednesday, December 1, the Honda was found
parked near the apartment of Graham's girlfriend. During the
time after the murders and before his arrest, defendant had
possession of the Pathfinder vehicle at the Henrico County home
of his father, where defendant resided.
Additionally, during the period after the murders and before
their arrests, defendant and Graham possessed numerous articles
of the victims' personal property. Search of defendant's room at
his father's house following the arrest produced the victims'
stereo equipment, a piece of their luggage, and the license
plates from the Pathfinder. When arrested, defendant possessed
the wife's wrist watch and one of the husband's credit cards
issued to his employer.
The evidence demonstrated that defendant and Graham were
close friends involved in selling cocaine. Traces of cocaine,
and drug paraphernalia, were found in the den and kitchen when
the victims' bodies were discovered. The victims' personal
records showed that, during the several months immediately
preceding their deaths, the couple made substantial cash
withdrawals and credit card charges averaging hundreds of dollars
per day, apparently to support their addiction to the drug.
Also, the husband used credit cards to provide hotel rooms for
Graham in exchange for cocaine during that period.
The Commonwealth's theory of the case was that the defendant
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and Graham regularly sold cocaine to the victims. During the
weeks before the killings, it became increasingly apparent to
these drug dealers that the victims' funds were being depleted
rendering them unable to finance their habit. Finally, the
victims were murdered either because of unpaid drug debts or
because the assailants anticipated that, when the victims
eventually were arrested for possessing illegal drugs, they would
"point the finger" at defendant and Graham as their suppliers.
The Commonwealth contended that, after the assailants entered the
home to sell drugs to the victims, defendant shot the husband
twice while Graham shot the wife twice, and that defendant fired
two additional shots into the wife's head.
The defendant testified in his own defense, admitting he was
present in the victims' home at the time of the murders, which he
claimed occurred on Saturday, not Sunday. Defendant denied being
present in the den when the victims were shot, testifing that he
was "[i]nside the dining room sitting at the table" when the
homicides took place, and that Graham and one Benji Vaughan, a
friend of defendant and Graham, were in the den with the victims.
Defendant admitted having been armed with a ".380 automatic" at
the time of the shootings, and said he did not know the
whereabouts on the day of trial of the .38 caliber revolver,
which he owned previously.
On appeal, defendant assigns 28 alleged errors committed by
the trial court. Defendant has engaged in the improper
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procedural practice of altering the assignments of error between
the time they were originally filed pursuant to Rule 5:22(b) and
the time his appellate brief was filed. In this discussion, we
shall refer only to the original assignments of error found in
the appendix at pages 195-96.
The defendant has not briefed or argued four of those
assigned errors (Nos. 1, 20, 21, and 25); thus, we will not
consider them. Weeks v. Commonwealth, 248 Va. 460, 465, 450
S.E.2d 379, 383 (1994), cert. denied, ___ U.S. ___, ___ S.Ct. ___
(1995). The remaining assignments of error emphasized by the
defendant present questions dealing with the trial court's
removal of certain jurors for cause, the sufficiency of the
evidence to show that the defendant was the perpetrator of the
crimes, refusal of the trial court to advise the jury of the life
sentence imposed upon Graham for these crimes, admission of
evidence of unadjudicated crimes involving the defendant, and
sufficiency of the evidence to support the vileness and future
dangerousness predicates for the death sentences.
First, defendant contends the trial court improperly removed
for cause four prospective jurors. The defendant procedurally
defaulted the alleged improper exclusion of Winkfield F. Twyman
because defendant failed to object at trial to his exclusion.
Such a claim may not be raised on appeal for the first time.
Rule 5:25.
The trial court excluded prospective jurors Dennis F.
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Hasenfus and David Roberts based upon their voir dire responses
indicating they would be unable to impose a death sentence. For
example, Hasenfus stated repeatedly he could not impose the death
penalty unless the Commonwealth proved "beyond a shadow of a
doubt" that such punishment was "necessary." Roberts said, "I do
not think that I could vote to give the death penalty. I could
not."
Prospective juror Deborah C. Pruitt had been summoned as a
witness in a prior capital murder case tried in the court below
in which the defendant had been sentenced to death. She had not
testified in the case. During voir dire, she indicated that,
although she had not heard any of the testimony in the prior
case, she was not convinced the defendant in the prior case
actually was guilty as charged. Stating that Pruitt's views "are
somewhat alarming to me," the trial court excluded her.
Upon appellate review, we give deference to the trial
court's decision whether to exclude or retain a prospective juror
because the trial court "sees and hears the juror;" accordingly,
the trial court's ruling on this question will be disturbed only
upon a showing of manifest error. Eaton v. Commonwealth, 240 Va.
236, 246, 397 S.E.2d 385, 391 (1990), cert. denied, 502 U.S. 824
(1991) (quoting Wainwright v. Witt, 469 U.S. 412, 426 (1985));
Bennett v. Commonwealth, 236 Va. 448, 469, 374 S.E.2d 303, 316
(1988), cert. denied, 490 U.S. 1028 (1989). In the present case,
we find no manifest error in the trial court's decision to
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exclude Hasenfus, Roberts, and Pruitt.
Next, the defendant contends that the evidence was
insufficient to sustain his convictions for capital murder.
Defendant says he "does not contest the sufficiency of the
evidence on which the robbery convictions were based;" he "does
contest the sufficiency of evidence proving . . . that he was a
triggerman in the murder of the Rosenbluths and . . . that their
murders were committed in the course of a robbery." There is no
merit to this contention.
The Commonwealth has the burden to prove beyond a reasonable
doubt that one accused of capital murder was the actual
perpetrator of the crime. Suspicion of guilt, though strong, or
even a probability of guilt, is insufficient to support a
conviction. When, as here, the evidence is wholly
circumstantial, all necessary circumstances proved must be
consistent with guilt and inconsistent with innocence and exclude
every reasonable hypothesis of innocence. Rogers v.
Commonwealth, 242 Va. 307, 317, 410 S.E.2d 621, 627 (1991); Cheng
v. Commonwealth, 240 Va. 26, 42, 393 S.E.2d 599, 608 (1990).
But when conducting appellate review on this question of
fact, considering the evidence in the light most favorable to the
Commonwealth, we must grant the Commonwealth all reasonable
inferences from the facts proven, and the trial court's judgment
must be affirmed unless it is plainly wrong or without evidence
to support it. Beavers v. Commonwealth, 245 Va. 268, 281-82, 427
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S.E.2d 411, 421, cert. denied, ___ U.S. ___, 114 S.Ct. 171
(1993). And when, as here, the defendant has presented evidence
in his own behalf, after the trial court has denied his motion to
strike the evidence made at the conclusion of the prosecution's
case-in-chief, we consider the entire record to determine whether
the evidence was sufficient. Bunch v. Commonwealth, 225 Va. 423,
439, 304 S.E.2d 271, 280, cert. denied, 464 U.S. 977 (1983).
On November 22, six days before the murders, Benji Vaughan
and defendant were "playing around" at a local motel. Defendant
"had a pistol," accidently shot Vaughan once in the foot, and
transported him to a hospital where the wound was treated and the
bullet recovered. Expert testimony showed that the ".38 class"
bullet was fired from the same handgun later used to shoot the
Rosenbluths.
Three weeks earlier, on November 4, the general manager of a
local motel, who was also "a federally licensed gun dealer,"
accompanied police officers to a room occupied by defendant and
Graham following a report that "two individuals in the room were
armed." Defendant claimed ownership of a "chrome or nickel-
plated revolver, . . . a .38 or a .357 magnum."
On a day "before Thanksgiving" in the bedroom occupied by
defendant, his father observed "a silver shiny looking gun, maybe
about 8 inches long." The father ordered defendant to remove the
weapon from the home.
The defendant "concedes" that the evidence is sufficient to
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prove that the "lost weapon was the same weapon which wounded
Benji Vaughan." Nevertheless, he contends that "the evidence
does not put the gun in his hands on the date of the Rosenbluths'
murders." As the Attorney General argues, this contention
ignores the state of the evidence touching this issue.
The defendant elected to testify, admitting that he was
present in the victims' home when they were shot but denying that
he shot either victim. He suggested in his testimony that
Vaughan was Graham's accomplice in the murders. Defendant
testified that the revolver used to shoot Vaughan actually
belonged to Vaughan and that Vaughan retained possession of the
handgun after the accidental shooting. Defendant admitted he was
armed when he went to the victims' home on the day in question,
but claimed he was carrying a .380 caliber automatic. When asked
on cross-examination the whereabouts of that weapon, defendant
said his brother "has it" and that he had not asked the brother
to produce the weapon at the trial. Defendant also admitted
participating in the theft of the victims' property, as well as
in the attempts to dispose of or destroy their motor vehicles.
But Vaughan also testified at trial, subpoenaed as a witness
by the prosecution. He denied any involvement in the murders,
stating he did not know the location of the victims' home.
Additionally, Vaughan denied that he owned or possessed, either
before or after the accident, the revolver with which defendant
shot him.
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Therefore, the conflicting testimony on whether defendant
was the actual perpetrator of the murders presented a credibility
question for the jury to resolve. Obviously, the jury in
weighing the evidence refused to accept defendant's denial of
guilt.
"Discarding the evidence of the accused in conflict with
that of the Commonwealth, we must regard as true the
Commonwealth's evidence and all fair inferences to be drawn
therefrom." Toler v. Commonwealth, 188 Va. 774, 782, 51 S.E.2d
210, 214 (1949). The defendant's contradictory statements
"furnish bases for reasonable inferences that his explanations
were made falsely in an effort to conceal his guilt." Id.
Indeed, on cross-examination defendant stated he was fully aware
that to be convicted of capital murder, the Commonwealth was
required to prove "without a reasonable doubt that I was the
triggerman."
Thus, the facts established by the evidence that the jury
was entitled to accept on this issue are as follows. Six days
prior to the homicides, the defendant owned and had in his
possession the very weapon used to kill the victims. He was
physically present in the victims' home and armed at the time of
the shootings. By his own admission, he was armed with a handgun
similar to the one used to shoot the victims. Yet, he failed to
produce that weapon, even though it was in possession, he
claimed, of a near relative. On the day of the crimes, neither
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Vaughan, nor any other person, had possession of the .38 caliber
revolver owned by defendant. The logical and legitimate
inference from these facts and the other evidence is that
defendant used his .38 caliber revolver to shoot both victims.
"The facts, accepted by the jury, admitted of inferences of
guilt more probable and natural than of any reasonable hypothesis
of innocence, and warranted the jury in rejecting [defendant's]
explanations as untrue. In other words, the facts established
are consistent with his guilt and inconsistent with his
innocence." Id. Accordingly, we cannot say the finding that
defendant was the perpetrator of the murders is plainly wrong or
without evidence to support it. Parenthetically, there is no
merit to defendant's contention that the evidence is insufficient
to prove the murders were committed in the course of a robbery.
This case is unlike Rogers and Cheng, in which we reversed
capital murder convictions because the Commonwealth failed to
establish the respective defendants were the perpetrators of the
crimes. Importantly, the defendant in neither case testified in
an attempt to conceal his guilt.
Also, in Rogers, we said that the "significant weakness in
the Commonwealth's case is the lack of any evidence, direct or
circumstantial, which places the murder weapon in defendant's
hands." 242 Va. at 319, 410 S.E.2d at 628. We pointed out that
the defendant's fingerprints were not on the murder weapon, a
knife, and said "there is no evidence which, by legitimate
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inference or otherwise, places the knife in his possession at any
time." Id. Here, in contrast, the firearm used to shoot these
victims was in defendant's exclusive possession at material times
prior to the killings.
Also, in Cheng, unlike the present case, the evidence was
inconclusive on the question whether the defendant was directly
involved with the crimes. 240 Va. at 43, 393 S.E.2d at 608. We
held the jury was not justified in inferring that defendant fired
the fatal shots, "especially when there were three known
participants in the crimes." Id. In the present case, however,
the evidence is clear that defendant directly participated in the
crimes by virtue of his admitted presence at the crime scene
armed with a deadly weapon. Even though there was another known
participant in these crimes, the ballistics evidence establishes
the precise participation of defendant, who shot both victims
with his own handgun while Graham shot only one.
Next, defendant contends that the fact of Graham's life
sentence imposed for his participation in the instant crimes is
relevant to the jury's consideration of defendant's punishment,
and that the court below erred in denying his several motions to
present this evidence to the jury. In May 1994, Graham was
convicted of two charges of capital murder for the premeditated
killing of Mrs. Rosenbluth, two charges of robbery, and three
charges of using a firearm in the commission of a felony. He had
been indicted for the first-degree murder of Mr. Rosenbluth and
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using a firearm in the commission of that offense, but was
acquitted of those charges.
Graham was sentenced for the capital murder of Mrs.
Rosenbluth to life imprisonment and a fine of $100,000. Graham
v. Commonwealth, 250 Va. at ___, ___ S.E.2d at ___. Defendant
argues (inconsistently with his contention on the preceding
issue) that he and Graham "are equally culpable in the
Rosenbluths' murders." Therefore, he says, Graham's life
sentence for almost identical involvement in the same crimes is
relevant to defendant's punishment because it bears on the issue
of mitigation. We disagree.
In Coppola v. Commonwealth, 220 Va. 243, 257 S.E.2d 797
(1979), cert. denied, 444 U.S. 1103 (1980), we said, "Evidence as
to the result of another defendant's trial for the same crime is
irrelevant to the determination by the jury of the appropriate
punishment for the defendant whose sentence is being weighed."
Id. at 254, 257 S.E.2d at 805. We reasoned that, under the
applicable statute, this Court "is required to consider and
determine whether the sentence of death is excessive or
disproportionate to the penalty imposed in similar cases, but no
such responsibility is imposed upon the jury in the trial court."
Id. We said that the jury, during the sentencing phase of the
capital murder trial, "is required to consider evidence in
mitigation of the offense relevant to the defendant's past record
and the nature of his conduct in committing the crime," not the
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details of another defendant's sentence for the same crime. Id.
Next, defendant contends the trial court erred in allowing
the Commonwealth to present, during the penalty phase of the
trial, evidence of unadjudicated crimes involving the defendant.
The prosecution presented evidence tending to prove that
defendant participated during October 1993 in a robbery and
shooting at a local motel, and in another robbery in which there
was a murder and a maiming. The latter incident was the subject
of Graham's convictions reviewed in Graham v. Commonwealth,
supra, 250 Va. 79, 459 S.E.2d 97 (1995). Of course, evidence of
unadjudicated crimes is relevant to the future dangerousness
predicate of the capital sentencing statute, and not to the
vileness predicate. Spencer v. Commonwealth, 238 Va. 295, 317,
384 S.E.2d 785, 799 (1989), cert. denied, 493 U.S. 1093 (1990).
We do not reach this question for decision. The defendant
has failed to assign error to the jury's finding of future
dangerousness. See Rules 5:22(b); 5:17(c). Therefore, the
defendant will not be allowed to challenge the admission of any
evidence relevant to that predicate about which there is no claim
of invalidity.
Next, the defendant argues that the evidence was
insufficient to sustain the jury's finding of vileness. He says
"the record is absolutely silent as [to] the existence of any
physical or psychological torture. Aside from the shots that
killed them, the Rosenbluths suffered no wounds or mutilation.
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There were no other signs of physical or mental abuse. The
record supports only the finding that they were killed almost
instantly and within seconds of each other." We conclude that
the finding was amply supported by the evidence.
Code § 19.2-264.2 provides that the death penalty shall not
be imposed unless the fact finder determines either that the
defendant, based on his criminal record, would be "a continuing
serious threat to society," the future dangerousness predicate,
or that the defendant's "conduct in committing the offense . . .
was outrageously or wantonly vile, horrible or inhuman in that it
involved . . . depravity of mind or an aggravated battery to the
victim," the vileness predicate. Executing two persons in their
home and then stripping their bodies of jewelry and stealing
their personal property manifestly demonstrates a depravity of
mind.
Within the context of the statute, the term "aggravated
battery" means "a battery which, qualitatively and
quantitatively, is more culpable than the minimum necessary to
accomplish an act of murder." Smith v. Commonwealth, 219 Va.
455, 478, 248 S.E.2d 135, 149 (1978), cert. denied, 441 U.S. 967
(1979). A killing inflicted by multiple gunshot wounds may
constitute an aggravated battery when there is an appreciable
lapse of time between the first shot and the last, and when death
does not result instantaneously from the first. Barnes v.
Commonwealth, 234 Va. 130, 139-40, 360 S.E.2d 196, 203 (1987),
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cert. denied, 484 U.S. 1036 (1988).
In the present case, the jury reasonably could have found
that each victim died from an aggravated battery. The evidence
supports the finding that defendant shot the husband in the face
while he was sitting or standing, walked to where the victim had
fallen on his back and shot him again in the face. The defendant
then walked over to the wife, who already had been shot by
Graham, and fired two more bullets into her head. Therefore,
there was an appreciable lapse of time between the two shots
fired by defendant at the husband, as well as between the shots
fired at the wife by Graham and the defendant. The evidence
showed that seconds elapsed between the first shots to each
victim and the last. Thus, neither died "instantaneously." And,
the evidence also showed that neither victim died
"instantaneously" from the first gunshot wounds.
The remaining assignments of error do not merit extended
discussion. In assignment of error No. 2, the defendant argues
the trial court improperly refused to allow three questions on
voir dire regarding the nature and definition of "mitigation" as
the term relates to punishment in a capital murder proceeding.
He says the trial court's action "rendered his trial
fundamentally unfair and deprived him of due process required by
the 14th Amendment." No constitutional objection was made in the
trial court, and we shall not permit it to be raised for the
first time on appeal. Rule 5:25. Additionally, we hold that the
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trial court did not abuse its discretion in refusing the
proffered questions on "mitigation."
In assignment of error No. 7, defendant asserts the trial
court improperly denied his motion to suppress evidence found in
"defendant's home." It will be recalled that defendant occupied
a room in his father's residence. The evidence showed that the
father consented to the search of the room and that, at the very
least, the father, the owner of the premises, had a joint right
of possession in the premises. Thus, the police properly relied
on the owner's consent to search. O'Dell v. Commonwealth, 234
Va. 672, 682, 364 S.E.2d 491, 496, cert. denied, 488 U.S. 871
(1988).
In assignment of error No. 28, the defendant contends the
trial court improperly failed to grant his tendered instruction
that would have allowed the jury to find defendant guilty as an
accessory after the fact. Defendant argues the jury could have
determined from the evidence that he was not involved in the
actual homicides but aided and abetted Graham and Vaughan "in
their get away from the scene and assisted them in concealing
their crime." The trial court properly refused the instruction.
Even if we assume such a theory was supported by the evidence,
the form of the instruction was flawed. It failed to set forth
an essential element of the law with respect to accessories after
the fact, that is, the felony must be completed for the principle
to apply. See Manley v. Commonwealth, 222 Va. 642, 645, 283
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S.E.2d 207, 208 (1981).
In assignment of error No. 12, defendant contends the trial
court incorrectly allowed the jury to view the victim of the
maiming that occurred in one of the prior crimes in which
defendant allegedly participated. The victim, suffering from
permanent brain damage, was permitted to walk into the courtroom
and leave. This demonstration, connected with an unadjudicated
crime, was relevant to the future dangerousness predicate. As we
already have said, the defendant failed to assign error attacking
that finding, and he will not be permitted to challenge
demonstrative evidence relevant to that predicate.
In assignment of error No. 13, defendant contends the trial
court incorrectly permitted one Maurice Turner, a penitentiary
inmate who met defendant in jail, to testify during the penalty
phase of the trial. Turner's testimony concerned defendant's
violent conduct in jail and certain admissions defendant made
about his participation in crimes in the Richmond area. This
action by the trial court, according to the defendant, violated
"the 8th and 14th Amendments of the United States Constitution."
These constitutional claims were not raised at trial, and we
will not entertain them for the first time on appeal. Rule 5:25.
Additionally, this contention also deals with evidence relevant
to the future dangerousness finding, which may not be attacked
because of the procedural default previously discussed.
Likewise, defendant's claim in assignment of error No. 16
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that the trial court incorrectly denied his "motion for a new
sentencing hearing for deprivation of individualized
consideration," is procedurally barred because it relates to the
evidence of unadjudicated crimes, which is barred from attack due
to failure to assign error to the future dangerousness finding.
The defendant, in an obscure argument, says he was not afforded
"individualized consideration" because the "jury received no
guidance as [to] the manner in which the evidence of
unadjudicated crimes should be considered."
We repeatedly have rejected the challenge that defendant
makes in assignment of error No. 17 that the terms "vileness" and
"depravity of mind," used in the capital sentencing scheme, are
unconstitutionally vague. See, e.g., Stockton v. Commonwealth,
227 Va. 124, 134-35, 314 S.E.2d 371, 378, cert. denied, 469 U.S.
873 (1984). Thus, we reject it here.
In assignment of error No. 19, the defendant contends that
the trial court improperly denied his request for a new
sentencing proceeding based upon the prosecutor's alleged failure
to inform defendant of exculpatory evidence. The defendant
complains that the Commonwealth failed to disclose that the
maiming victim had been unable to identify defendant as a
participant in that prior crime. Again, this relates to the
future dangerousness predicate, and the validity of that finding
is immune from attack.
In assignments of error Nos. 22 and 23, defendant contends
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the prosecutor engaged in prejudicial argument during both the
guilt and penalty phases of the bifurcated proceeding. Defendant
asserts the prosecutor sought to shift the burden of proof during
the guilt phase and sought to inflame the jury during the penalty
phase. None of these claims was preserved for appellate review.
Errors assigned because of improper comments of the prosecutor
during argument "will not be considered on appeal unless an
accused timely moves for a cautionary instruction or for a
mistrial." Cheng, 240 Va. at 38, 393 S.E.2d at 606. In the
present case, these alleged errors were not preserved because the
defendant either did not object or move in a timely fashion for a
cautionary instruction or a mistrial.
Finally, in assignments of error Nos. 26 and 27, defendant
argues the trial court incorrectly allowed during the penalty
phase certain testimony of a criminologist, who testified that
defendant is "a dangerous, violent criminal." This issue is
barred from appellate review because the testimony relates to the
future dangerousness predicate, as we already have explained.
When death sentences are before us for automatic review, our
statute requires us to consider, not only the trial errors
enumerated by the defendant, but also whether the sentences to
death were imposed under the influence of passion, prejudice, or
any other arbitrary factor, and whether the sentences are
excessive or disproportionate to the penalty imposed in similar
cases. Code § 17-110.1(C). "On the question of excessiveness
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and disproportionality, we determine whether other sentencing
bodies in this jurisdiction generally impose the supreme penalty
for comparable or similar crimes, considering both the crime and
the defendant." Weeks, 248 Va. at 478, 450 S.E.2d at 391. In
making this determination, we consider records of all capital
murder cases reviewed by this Court, including cases where life
imprisonment has been imposed. Code § 17-110.1(E).
Previous cases in which the death sentence was imposed based
upon the vileness and future dangerousness predicates are
documented in Breard v. Commonwealth, 248 Va. 68, 89, 445 S.E.2d
670, 682, cert. denied, ___ U.S. ___, 115 S.Ct. 442 (1994).
Based upon a review of these cases, we conclude that the death
sentences in this case are not excessive or disproportionate to
the punishment generally imposed by juries in the Commonwealth
for similar conduct. And, we reject defendant's argument that
his punishment is excessive or disproportionate because Graham
received a life sentence arising from the same incident. We
consistently have rejected efforts by defendants to compare their
sentences with those received by confederates. Murphy v.
Commonwealth, 246 Va. 136, 145, 431 S.E.2d 48, 53, cert. denied,
___ U.S. ___, 114 S.Ct. 336 (1993).
Consequently, we hold that the trial court committed no
error, and we have independently determined from a review of the
entire record that the sentences of death were properly assessed.
Thus, the judgment of the trial court will be affirmed.
Record No. 950760 - Affirmed.
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Record No. 950761 - Affirmed.
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