Present: All the Justices
IVAN TELEGUZ
v. Record No. 062085 OPINION BY JUSTICE ELIZABETH B. LACY
April 20, 2007
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
John J. McGrath, Jr., Judge
Ivan Teleguz was convicted by a jury of the capital
murder for hire of Stephanie Yvonne Sipe in violation of Code
§ 18.2-31(2) and sentenced to death. We consolidated the
automatic review of Teleguz's death sentence with the appeal
of his capital murder conviction pursuant to Code § 17.1-
313(F). For the reasons stated below, after consideration of
the issues raised by Teleguz and our mandated review of the
imposition of the death penalty, we will affirm the judgment
of the trial court.
I. FACTS AND PROCEEDINGS
We recite the facts in the light most favorable to the
Commonwealth, the prevailing party below.1 Remington v.
Commonwealth, 262 Va. 333, 338, 551 S.E.2d 620, 624 (2001),
cert. denied, 535 U.S. 1062 (2002). During the summer of
2001, Teleguz hired Edwin Lee Gilkes, Jr., and Michael Anthony
Hetrick to kill Sipe, who was Teleguz's ex-girlfriend and the
1
Facts relevant only to specific issues raised by Teleguz
will be recited in conjunction with the discussion of those
issues.
mother of his young child. On July 21, 2001, Teleguz, driving
his car, took Gilkes and Hetrick from their apartment in
Lancaster, Pennsylvania, to Harrisonburg, Virginia, where Sipe
lived. Teleguz told Hetrick he wanted Sipe's "throat cut" and
"to make sure she was dead." Once in Virginia, Teleguz waited
in the car while Gilkes and Hetrick went into a Wal-Mart.
Hetrick purchased a fillet knife, which Teleguz approved as a
suitable murder weapon. Teleguz took the men to Sipe's
apartment complex and pointed out her apartment. They then
drove the car to a parking lot near Sipe's residence, where
Gilkes and Hetrick got out of the car. Teleguz told the men
to "wait until he had time to get back to Pennsylvania."
After waiting several hours, Gilkes and Hetrick walked
back to Sipe's apartment complex. Hetrick approached Sipe's
apartment alone and gained entry by asking to use the
telephone. Once in the apartment, Hetrick killed Sipe by
cutting her throat. In the course of the attack, Hetrick
injured his hand. Hetrick went to the bathroom to clean his
hand and was surprised to find Sipe's infant son "in the
bathtub with the water running." Hetrick turned off the water
and left the apartment. Gilkes and Hetrick returned to
Pennsylvania by bus.
On the evening of July 23, 2001, Sipe's mother, Pamela Y.
Woods, went to her daughter's apartment because she had not
2
heard from Sipe during the previous two days and was unable to
reach her by telephone. When Woods entered the apartment, she
found Sipe's body in the front room and began screaming for
help. Woods then found Sipe's twenty-three month-old son in
the bathroom of the apartment, with the bathtub full of water.
The child was unharmed. In response to Woods' screams, Mark
Edwin Moore, a neighbor, went to Sipe's apartment and, after
placing a blanket over Sipe's body, took Woods and her
grandson out of the apartment.
The medical examiner testified that Sipe suffered a
number of cuts described as defensive wounds, as well as three
other wounds. The first, according to the medical examiner,
was a superficial wound. The second wound was a "stabbing
wound," which affected the area "all the way from the left
side of the neck . . . to the right side of the neck" and
consisted of a cut to Sipe's windpipe and esophagus. The
medical examiner also testified that the third wound, the
fatal wound, was a "cutting wound" which consisted of a cut
approximately two and one-half inches deep into Sipe's
trachea, larynx, and a major artery on the right side of
Sipe's neck, which was completely severed.
At the crime scene, the Harrisonburg police discovered
blood that did not belong to Sipe. Investigator Kevin A.
Whitfield learned from Sipe's family members that Teleguz was
3
the father of Sipe's son and that he was currently living in
Pennsylvania. Investigator Whitfield also learned that
relations between Sipe and Teleguz had been strained, and that
Teleguz was upset about a court order requiring him to pay
child support. On July 24, 2001, Investigator Whitfield
interviewed Teleguz at Teleguz's residence in Pennsylvania.
Teleguz denied any involvement in the murder, and stated he
had been in Pennsylvania since July 20, 2001.
On December 14, 2001, Investigator Whitfield, assisted by
Pennsylvania State Police, executed a search warrant on
Teleguz. Police collected samples of Teleguz's blood, hair,
and saliva. Testing revealed that Teleguz was not the source
of the blood found at Sipe's apartment.
Also in 2001, Investigator Whitfield interviewed Mark
Moore who told Whitfield that he had seen an unknown person
around Sipe's apartment prior to her murder. When shown a
photograph array that included a photograph of Teleguz, Moore
told Investigator Whitfield he was about 70 percent certain
Teleguz was the person he had seen at Sipe's apartment.
Investigator Whitfield also interviewed Ryan Ferguson, who was
with Moore the night he saw the individual leave Sipe's
apartment. Ferguson was also shown a photograph array.
Although Ferguson initially failed to identify Teleguz, he
subsequently identified the photograph of Teleguz as the one
4
which "most" resembled the person he had seen leaving Sipe's
apartment. No arrests were made on the basis of these
interviews.
The investigation stalled until February 2003, when
Michael Nelson, a deputy marshal with the United States
Marshal Service, contacted Investigator Whitfield with
information about the Sipe murder. Aleksey Safanov, who was
facing federal criminal charges, told Deputy Marshal Nelson
that Teleguz had hired a black male from Lancaster,
Pennsylvania, to kill Sipe because Teleguz was angry about
having to pay child support. According to Safanov, Teleguz
said that Sipe had been murdered, and that Teleguz was upset
because "[w]hoever killed her left blood evidence." Safanov
also told investigators that after Sipe's murder, Teleguz
wanted to rob Sipe's parents, and that he and Teleguz had
driven to Harrisonburg but ultimately did not commit the
robbery.
Safanov's information led the police to Edwin Gilkes who
told the police that he refused Teleguz's offer to murder Sipe
for pay but that Michael Hetrick accepted the offer. The
police then contacted Hetrick who ultimately confessed to
murdering Sipe. Hetrick said Teleguz had hired him to kill
Sipe for $2,000, with half to be paid before the murder. When
Teleguz received confirmation of Sipe's death, he paid Gilkes
5
and Hetrick the remaining $1,000 plus an additional $500 for
expenses. Subsequent testing revealed that Hetrick was the
source of the unidentified blood found at Sipe's apartment.
As a result of Hetrick's confession, Teleguz was arrested
in Pennsylvania on July 1, 2004 and subsequently extradited to
Virginia. He was indicted by a Rockingham County grand jury
for the willful, deliberate, and premeditated killing of a
person by another for hire as an accessory before the fact in
violation of Code § 18.2-31(2).
Following a four day trial, the jury found Teleguz guilty
as charged. The jury proceeded to hear further evidence
regarding sentencing. The Commonwealth presented evidence at
sentencing in support of the statutory aggravators of vileness
and future dangerousness. In addition to the evidence
presented during the guilt portion of the trial, the
Commonwealth's evidence included Teleguz's prior criminal
convictions, testimony from Sipe's relatives, the nature of
the injuries Sipe sustained, and the pain she would have
experienced prior to her death. Teleguz presented mitigation
evidence including testimony about his background and
childhood in the Ukraine. He presented testimony about his
lack of disciplinary infractions while incarcerated. The jury
found both statutory aggravators beyond a reasonable doubt and
recommended a sentence of death.
6
Teleguz filed a number of post-trial motions, including a
motion to compel disclosure of information he asserted was
improperly suppressed. He then moved to set aside the
verdict, arguing that the Commonwealth's suppression of
exculpatory evidence violated his due process rights under
Brady v. Maryland, 373 U.S. 83 (1963). The trial court denied
the motion, finding that the evidence allegedly suppressed was
not material to the issue of Teleguz's guilt and therefore no
Brady violation occurred. The trial court also rejected the
other grounds on which Teleguz sought to have the verdict set
aside and declined to set aside the sentence of death and
impose a life sentence pursuant to Code § 19.2-264.5. Teleguz
appealed, asserting 35 assignments of error.
II. ANALYSIS
A. ASSIGNMENTS OF ERROR WAIVED OR ABANDONED
1. Juror 50
Teleguz argues that the trial court's failure to strike
Juror 50 for cause was error because she stated she could not
consider information about Teleguz's background as mitigating
evidence. This argument is a new argument not presented to
the trial court. At trial, Teleguz argued that Juror 50
should have been removed from the venire due to a potential
scheduling conflict involving the juror's child. Accordingly,
we will not consider this argument raised for the first time
7
on appeal. Rule 5:25; Goins v. Commonwealth, 251 Va. 442,
463, 470 S.E.2d 114, 128, cert. denied, 519 U.S. 887 (1996).
2. Comments Made in Opening Statement
Teleguz asserts that the trial court erred in denying his
"mistrial motions" based upon comments made by the
Commonwealth during opening statements. The first comment was
that Teleguz gave "no reaction" when told by the police about
Sipe's murder, and that he did not ask about his son. The
second comment referred to expected testimony of Teleguz's
brother, Pavel Teleguz.
A review of the record demonstrates that the trial court
never denied a motion for mistrial with regard to either
statement because no such motions were made. Although the
trial court sustained Teleguz's motion in limine to exclude
any evidence regarding his precustodial silence, Teleguz did
not object, ask for a cautionary instruction, or move for a
mistrial in conjunction with the Commonwealth's reference to
precustodial silence in its opening statement. While Teleguz
did object to the Commonwealth's comments regarding Pavel
Teleguz's testimony, he did not request a mistrial. Teleguz
only commented, "I don't think we should risk a mistrial based
on that" before the trial court overruled the objection.
Accordingly, these assignments of error do not address a
8
ruling made by the trial court and we do not consider them.2
Rule 5:17(c); Rawls v. Commonwealth, 272 Va. 334, 344, 634
S.E.2d 697, 701 (2006).
3. Motion for Continuance
Teleguz argues that the trial court should have granted a
motion for continuance raised when Investigator Whitfield
testified regarding Moore's identification of Teleguz. The
record shows that during this testimony, Teleguz asked for a
"mistrial or at least a continuance" to allow him to find and
question Moore. The trial court denied the motion for a
mistrial but never ruled on the continuance request, and
Teleguz did not seek a ruling on his motion for a continuance.
Because this assignment of error does not address any
ruling made by the trial court, we do not consider it. Rule
5:17(c); Riner v. Commonwealth, 268 Va. 296, 325, 601 S.E.2d
555, 571-72 (2004); Lenz v. Commonwealth, 261 Va. 451, 462-63,
544 S.E.2d 299, 305-06, cert. denied, 534 U.S. 1003 (2001).
4. Pavel Teleguz Testimony
Teleguz claims that the trial court's decision to permit
Pavel Teleguz to testify as a hostile witness was error
because it allowed the Commonwealth to use an investigator's
2
On brief Teleguz also complains of a comment made by the
Commonwealth during the penalty phase. Teleguz has not
assigned error to this comment and accordingly we do not
consider it here. Rule 5:17(c).
9
notes for impeachment in violation of the Confrontation Clause
of the United States Constitution, U.S. Const. amend. VI.
The only argument submitted by Teleguz in this Court in
support of this claim was a single sentence that the use of
the investigator's notes in questioning Pavel Teleguz was
"wholly improper." Because Teleguz has failed to brief this
assignment of error, it is abandoned. Rule 5:17(c); Muhammad
v. Commonwealth, 269 Va. 451, 478-79, 619 S.E.2d 16, 31
(2005), cert. denied, ___ U.S. ___, 126 S.Ct. 2035 (2006);
Elliott v. Commonwealth, 267 Va. 396, 422, 593 S.E.2d 270, 286
(2004), cert. denied, 543 U.S. 1081 (2005).
5. Driving Time Testimony
Teleguz claims that the trial court erred in allowing
testimony from Investigator Whitfield regarding the driving
time between Teleguz's residence in Pennsylvania and the crime
scene in Harrisonburg because such testimony was irrelevant
and prejudicial. Teleguz did not raise these arguments at
trial. Instead, Teleguz argued that the testimony should not
be admitted because it described "an experiment."
We will not consider this new argument because it was not
presented to the trial court. Rule 5:25; Goins, 251 Va. at
463, 470 S.E.2d at 128.
6. Pamela Woods Testimony
10
At trial, Pamela Woods testified, over Teleguz's
objection, that Teleguz had asked Sipe to "go with him" but to
leave their son behind. Teleguz argues that this testimony
was "irrelevant and prejudic[ial]" and its admission was
reversible error. At trial, Teleguz objected to this
testimony on relevancy and hearsay grounds. The trial court
sustained the hearsay objection but never ruled on the
relevancy objection. Because the trial court did not issue a
ruling on Teleguz's relevancy objection, there is no basis
upon which this Court may consider the issue. Rule 5:17(c);
Riner, 268 Va. at 325, 601 S.E.2d at 571-72; Lenz, 261 Va. at
462-63, 544 S.E.2d at 305-06. Finally, we do not consider
Teleguz's argument that this testimony was prejudicial,
because that argument was not presented to the trial court.
Rule 5:25; Goins, 251 Va. at 463, 470 S.E.2d at 128.
7. Evidence of a Knife and Gloves
When the Commonwealth sought to elicit testimony about a
knife and a pair of gloves found in Teleguz's car shortly
after the murder, Teleguz objected, arguing that the knife and
gloves had not been connected to the murder and such evidence
was therefore irrelevant. The trial court sustained Teleguz's
objection finding the evidence "too attenuated and
prejudicial." Teleguz subsequently moved for a mistrial and
if the mistrial was not granted "to certainly instruct the
11
jury" with regard to the excluded evidence. The trial court
responded by instructing the jury that the knife and gloves
were not to be considered as evidence. Teleguz assigns error
to the trial court's failure to grant his motion for a
mistrial, arguing the Commonwealth's comments on the knife and
gloves tainted the jury.
Based on the record, we conclude that Teleguz has waived
this assignment of error. When the trial court granted the
request for the jury instruction, Teleguz raised no objection
to the failure to grant the mistrial. Accordingly, this
assignment of error is waived. Rule 5:25.
8. Photograph Array
Teleguz assigns error to the admission of the photograph
array because it was unduly suggestive. Teleguz's primary
argument on this issue is that Moore's identification was
unreliable due to the time of the day when Moore stated he saw
Teleguz, and the fact that Moore was "using drugs and drinking
heavily" when he saw the person leave Sipe's apartment.
Teleguz's argument does not address the grounds on which the
error was assigned and only refers to the array as containing
"four minorities as 'fillers'" and Teleguz's brother without
more. In the absence of any substantive argument on why the
display was unduly suggestive, this assignment of error has
been abandoned. Rule 5:17(c).
12
9. Testimony of Kimberly Woods
Teleguz assigns error to the trial court's refusal to
accept a stipulation regarding the testimony of Kimberly
Woods. On brief, Teleguz argues only that the trial court
erred in refusing to grant a continuance to allow Teleguz to
secure Woods' attendance at trial. This argument does not
relate to the assignment of error and accordingly we do not
consider it here. Rule 5:17(c). In the absence of any
argument in support of the assignment of error, the assignment
of error is abandoned. Rule 5:17(c); see Juniper v.
Commonwealth, 271 Va. 362, 414, 626 S.E.2d 383, 416, cert.
denied, ___ U.S. ___, 127 S.Ct. 397 (2006).
Teleguz also claims that the trial court erred by
refusing to allow Investigator Whitfield to testify regarding
Woods' out of court statements. The only argument in support
of this assignment of error is a single sentence that
reiterates the assignment of error. Such a statement does not
constitute an argument in support of the error assigned.
Accordingly, this assignment of error is abandoned. Rule
5:17(c); Muhammad, 269 Va. at 478-79, 619 S.E.2d at 31;
Elliott, 267 Va. at 422, 593 S.E.2d at 286.
B. ISSUES PREVIOUSLY DECIDED
13
In three assignments of error, Teleguz raises arguments
which have been previously considered and rejected by this
Court.
1. Conditions of Confinement
Teleguz argues that the trial court erred in denying his
motion to present expert testimony and evidence regarding the
conditions of incarceration to rebut allegations of future
dangerousness.3 Teleguz's motion was a general motion seeking
to present evidence on prison conditions and security and did
not address evidence specific to him. Therefore, the trial
court did not err in rejecting his motion. Bell v.
Commonwealth, 264 Va. 172, 201, 563 S.E.2d 695, 714, cert.
denied, 537 U.S. 1123 (2002); and Burns v. Commonwealth, 261
Va. 307, 340, 541 S.E.2d 872, 893, cert. denied, 534 U.S. 1043
(2001).
2. Constitutionality of Death Penalty
Teleguz argues that imposition of the sentence of death
constitutes reversible error due to the following purported
3
We assume Teleguz is referring to his pretrial motion
for the appointment of an expert on prison conditions to rebut
allegations of future dangerousness or in the alternative to
proffer evidence on such conditions. The record shows that
the only other instance in which he sought to introduce such
evidence was for the trial court's consideration of prison
conditions when determining whether, for good cause shown, the
sentence of death recommended by the jury should be commuted
to a sentence of life without parole pursuant to Code § 19.2-
14
constitutional deficiencies of the death penalty statutes and
procedures in Virginia. We find nothing additional in the
arguments raised by Teleguz in this case and adhere to our
previous holdings.
(1) Code §§ 19.2-264.2 through -264.5 fail to
adequately direct the jury as to how to evaluate
the aggravating factors so as to avoid the
arbitrary imposition of the death penalty.
Rejected in Wolfe v. Commonwealth, 265 Va. 193,
208, 576 S.E.2d 471, 480, cert. denied, 540 U.S.
1019 (2003), and Mickens v. Commonwealth, 247 Va.
395, 403, 442 S.E.2d 678, 684, vacated and remanded
on other grounds, 513 U.S. 922 (1994).
(2) Unadjudicated criminal acts should not be
considered to prove future dangerousness. Rejected
in Stockton v. Commonwealth, 241 Va. 192, 209-10,
402 S.E.2d 196, 206, cert. denied, 502 U.S. 902
(1991).
(3) Hearsay should not be considered in the post-
sentence report. Rejected in O'Dell v.
Commonwealth, 234 Va. 672, 701-02, 364 S.E.2d 491,
507-08, cert. denied, 488 U.S. 871 (1988).
(4) The death sentence may not be set aside upon a
showing of good cause. Rejected in Breard v.
Commonwealth, 248 Va. 68, 76, 445 S.E.2d 670, 675-
76, cert. denied, 513 U.S. 971 (1994).
(5) Appellate review procedures are not consistent
with the Eighth Amendment and other constitutional
provisions. Rejected in Satcher v. Commonwealth,
244 Va. 220, 228, 421 S.E.2d 821, 826 (1992), cert.
denied, 507 U.S. 993 (1993) and Smith v.
Commonwealth, 239 Va. 243, 253, 389 S.E.2d 871,
876, cert. denied, 498 U.S. 881 (1990).
C. PRETRIAL ISSUES
264.5. The trial court granted Teleguz's motion to consider
this evidence.
15
1. Juror 66
Teleguz argues that the trial court committed reversible
error by failing to remove Juror 66 after the juror indicated
he "could not consider Mr. Teleguz's background as mitigating
evidence."
During the individual voir dire of a four-juror panel,
Teleguz sought to determine whether the jurors would have
trouble considering as mitigating evidence in the penalty
phase someone's personal experiences if that person came from
a very different background, specifically the Soviet Union.
However, Teleguz's questions initially were not clearly
directed to the penalty phase and referred to Teleguz's
country of origin, rather than personal experiences. Juror 66
and another juror clearly were confused by Teleguz's
questions. Juror 66, for example, responded that he could not
say someone was "guilty because he's from Russia." Although
Teleguz attempted to clarify his question, the jurors'
confusion about the use of such evidence remained. Juror 66
said that he would not decide a penalty "[b]ased on where
[Teleguz] was from." The trial court attempted to clarify the
question it believed Teleguz wanted to ask, but the jurors
continued to interpret the question as whether they would
determine Teleguz's penalty based on his country of origin.
The trial court stated that it would take the jurors'
16
confusion into account when evaluating their answers. Teleguz
moved to strike Juror 66 for cause, because of his inability
to "consider things in mitigation." The trial court denied
Teleguz's motion.
We apply an abuse of discretion standard when we review a
trial court's refusal to strike a juror for cause. Spencer v.
Commonwealth, 240 Va. 78, 94, 393 S.E.2d 609, 619, cert.
denied, 498 U.S. 908 (1990). As we have previously
recognized, a trial judge who personally observes a juror,
including the juror's tenor, tone, and general demeanor, is in
a better position than an appellate court to determine whether
a particular juror should be stricken. Id. (citing LeVasseur
v. Commonwealth, 225 Va. 564, 584, 304 S.E.2d 644, 655 (1983),
cert. denied, 464 U.S. 1063 (1984)).
In this case, the trial court was well aware of the
confusion arising from Teleguz's questions, took that
confusion into consideration when evaluating the jurors'
answers, and concluded that Juror 66 should not be stricken
for cause because of an inability to consider mitigating
evidence. Based on our review of the record, we conclude the
trial court did not abuse its discretion.
2. Motion for Change of Venue
Teleguz argues that the trial court should have granted
his motion for change of venue because of the media coverage
17
of the trial and because many of the jurors were aware of
Sipe's murder through this media coverage.
Teleguz filed a change of venue motion on January 27,
2006. His motion was accompanied by a single article
published the day before in a Harrisonburg newspaper,
recounting the plea agreement of Gilkes, his willingness to
assist in the prosecution, and statements by the prosecutor
that Teleguz "wanted [Sipe] dead because he did not want to
pay child support." The trial court denied Teleguz's motion,
holding that Teleguz failed to meet his burden of overcoming
the presumption that he would receive a fair trial in
Harrisonburg.
Prior to voir dire, which began on February 6, 2006,
Teleguz reasserted his motion for change of venue based on a
newspaper article published that morning. Teleguz asked the
trial court, if his motion was denied, to question the
potential jurors in voir dire regarding their knowledge of the
case acquired through the media. The trial court denied the
motion for change of venue but stated that it intended to
"take up specific issues of publicity" with the jury.
The record reflects that although a number of prospective
jurors had learned something about the case from newspapers,
radio, or television, only two indicated that they could not
put that information "out of their mind[s]" in deciding the
18
merits of the case. Selection of the jury was completed in
one day. The following morning, prior to empanelling the
jury, at Teleguz's request, the trial court asked whether any
one had read an article about the trial that appeared in the
morning paper. The panel members responded in the negative.
Teleguz, in response to a question from the trial court,
stated that he was satisfied that the jury panel chosen was
"free from exception."
In considering a motion for change of venue, we begin
with the presumption that a defendant can receive a fair trial
in the jurisdiction in which the offense occurred. Stockton
v. Commonwealth, 227 Va. 124, 137, 314 S.E.2d 371, 379-80,
cert. denied, 469 U.S. 873 (1984). The defendant must
overcome this presumption by showing that it is reasonably
certain a fair trial will be prevented because of the
prejudice against the defendant that exists in the community.
Id. Whether a change of venue should be granted lies within
the sound discretion of the trial court. George v.
Commonwealth, 242 Va. 264, 274, 411 S.E.2d 12, 18 (1991),
cert. denied, 503 U.S. 973 (1992) (citing LeVasseur v.
Commonwealth, 225 Va. at 577, 304 S.E.2d at 651).
The existence of media reports about the accused and the
crime does not necessarily require a change of venue.
Buchanan v. Commonwealth, 238 Va. 389, 407, 384 S.E.2d 757,
19
767-68 (1989), cert. denied, 493 U.S. 1063 (1990). "A
potential juror who has knowledge of the case, even if such
person has formed an opinion about the case, is entitled to
sit on the jury if that opinion can be set aside." Thomas v.
Commonwealth, 263 Va. 216, 231, 559 S.E.2d 652, 660 (2002)
(citing Irvin v. Dowd, 366 U.S. 717, 722-23 (1961)). In this
case, only two examples of media coverage of the trial were
offered and no juror was empanelled who voiced any difficulty
with ignoring what he or she had learned from the media
reports. Furthermore, by conceding that the jury panel was
"without exception," Teleguz cannot assert here that he was
denied a fair trial because of media coverage. Code § 8.01-
352.
Accordingly, the trial court did not abuse its discretion
in denying Teleguz's motion for a change of venue.
3. Vienna Convention
Teleguz claims that the trial court committed reversible
error by denying his motion to strike the death penalty due to
a violation of the Vienna Convention. Prior to trial, Teleguz
argued that the violation of Article 36 of the Vienna
Convention on Consular Relations and Optional Protocol on
Disputes, Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820,
occurred because the police failed to notify him of his rights
under the Vienna Convention, including his right to have the
20
Ukrainian consulate notified of his arrest, until eleven
months after his arrest.
The United States Supreme Court has stated that it is
"extremely doubtful" that a violation of the Vienna Convention
would require a conviction to be overturned absent a showing
that the trial was affected by the violation. Breard v.
Greene, 523 U.S. 371, 377 (1998). Even if we assumed that a
violation occurred in this case, which the trial court did not
find, there is no evidence in the record that Teleguz's trial
was affected. The trial court granted Teleguz's request for a
continuance in order to contact the Ukrainian consulate and
rescheduled the trial for approximately six months later in
February 2006. The trial court noted that it would entertain
any motions from the Ukrainian consulate to replace Teleguz's
counsel or for an extension of time should the consulate show
that it was willing to assist Teleguz in obtaining evidence
from the Ukraine. No such motions were ever filed. Teleguz
did not request new counsel from the consulate even though the
trial court provided him with two weeks in which to do so.
Teleguz did not show that there was any impact on his trial as
a result of the delay in being informed of his rights under
the Vienna Convention. Accordingly, we reject this assignment
of error.
21
D. GUILT PHASE ISSUES
1. Testimony of Pavel Teleguz
During the investigation of Sipe's murder, Teleguz's
brother, Pavel Teleguz (Pavel), talked with Sergeant Chris
Rush of the Harrisonburg Police Department. Sergeant Rush
made notes of this interview. At trial, the Commonwealth told
the trial court it expected Pavel to be an adverse witness and
wanted to question him about statements made in the interview
with Sergeant Rush. The Commonwealth told the trial court
that if Pavel did not respond as he did in his interview with
Sergeant Rush, it intended to question him regarding his
inconsistent statements. Pavel testified that he did not
recall the substance of his conversation with Sergeant Rush.
When he was shown Sergeant Rush's notes, Pavel stated he did
not make the statements recorded in the notes. At the
Commonwealth's request, the trial court declared Pavel a
hostile witness. Teleguz objected, stating, "The fact that
the witness doesn't remember does not in fact make him
hostile." The trial court overruled Teleguz's objection.
The Commonwealth proceeded to ask Pavel if he heard his
brother, the defendant, make certain statements, including a
statement about child support. Pavel denied hearing his
brother make the statements. Teleguz declined to cross-
examine Pavel. The Commonwealth then sought to elicit
22
testimony from Sergeant Rush about the statements which Pavel
denied making. The trial court ruled, however, that this
would deny Teleguz the right to confront and cross-examine
regarding out of court statements. The Commonwealth did not
call Sergeant Rush as a witness.
Before Pavel left the courtroom, the Commonwealth stated:
"Judge, I would ask that Sgt. Rush come back in and take Mr.
Paul Teleguz into custody for perjury." Teleguz moved for a
mistrial. The trial court denied Teleguz's motion, stating
that the Commonwealth's comment was made out of the hearing of
the jury. When Teleguz again raised the issue and asked that
the jury be polled to determine if they heard the comment, the
trial court denied Teleguz's request and renewed motion for a
mistrial, but specifically cautioned the jury that if they had
heard any comment following Pavel's release from the witness
stand, it was to be disregarded.
a. Hostile Witness
Teleguz argues that the trial court erred when it allowed
the Commonwealth to treat Pavel as a hostile witness.
According to Teleguz, Pavel was not a party to the proceeding
and no evidence was presented showing that he had any personal
or adverse interest in the proceeding.
With respect to the right to attack the testimony of an
adverse witness, Code § 8.01-401(A) states, "[a] party called
23
to testify for another, having an adverse interest, may be
examined by such other party according to the rules applicable
to cross-examination." This rule applies to any person who
has an adverse interest, even if that person is not a party to
the litigation. Hegwood v. Virginia Natural Gas, Inc., 256
Va. 362, 368, 505 S.E.2d 372, 376 (1998) (citing Butler, 186
Va. at 431-32, 43 S.E.2d at 4). In addition, a person may be
considered a hostile witness if his testimony surprises the
party who called the person to testify at trial. See Butler,
186 Va. at 434, 43 S.E.2d at 5. The rules of cross-
examination apply to the examination of a witness who has been
deemed hostile or who has an adverse interest. Code § 8.01-
401(A); Butler, 186 Va. at 435, 43 S.E.2d at 6.
We review a trial court's ruling that a witness is a
hostile witness under an abuse of discretion standard. Id.
The trial court determines whether a witness is hostile or
adverse because "the trial court sees and hears the witness on
the stand, observes his demeanor, and hence is in a much
better position to determine whether he is in fact adverse or
hostile than is an appellate court which must rely on the
printed record." Virginia Electric & Power Co. v. Hall, 184
Va. 102, 105, 34 S.E.2d 382, 383 (1945).
We find no abuse of discretion by the trial court in
declaring Pavel a hostile witness because Pavel, as Teleguz's
24
brother, was a person with an interest adverse to the
prosecution. Butler, 186 Va. at 434, 43 S.E.2d at 5 (witness
closely connected by blood to accused can have adverse
interest).
b. Comments on Perjury
Teleguz argues that the trial court erred when it denied
his motion for a mistrial based on the Commonwealth's request
that Pavel be taken into custody for perjury. Teleguz claims
that the statement was heard by the jury and that the trial
court's instruction to the jury to disregard what it may have
heard was insufficient to overcome the prejudice created by
the comment.
We find no error by the trial court in its denial of
Teleguz's mistrial motion. Regardless of whether the jurors
heard the Commonwealth's Attorney's comment, jurors are
presumed to follow the instructions provided by the trial
court. Muhammad, 269 Va. at 524, 619 S.E.2d at 58 (citing
Green v. Young, 264 Va. 604, 611, 571 S.E.2d 135, 139 (2002)).
Nothing in the record suggests that the jurors acted
otherwise. Accordingly, we reject this assignment of error.
2. Reference to "Russian Mafia"
Teleguz filed a motion in limine seeking to preclude the
Commonwealth from commenting about or introducing evidence on
Teleguz's alleged connection to the "Russian Mafia." The
25
trial court took the motion under advisement, commenting that
testimony showing the witnesses' fear of Teleguz because of a
relationship with the "Russian Mafia" was appropriate, not for
the truth of the matter, but to show the witnesses' state of
mind.
At trial, Gilkes and Hetrick each stated that they were
afraid of Teleguz because they had heard that he was
associated with the "Russian Mafia." Teleguz objected to the
statements, relying on his prior motion and also on the
grounds that the statements were inadmissible hearsay. The
trial court overruled the objections and instructed the jury
that the statements were only to be considered to show Gilkes'
and Hetrick's states of mind and not for the truth of the
matter being asserted.
Teleguz argues that the trial court erred when it allowed
Gilkes and Hetrick to testify regarding Teleguz's alleged
connections to the "Russian Mafia" because such statements
were highly prejudicial. We disagree. The trial court gave a
proper limiting instruction and a jury is presumed to follow
the instructions given by the trial court. Muhammad, 269 Va.
at 524, 619 S.E.2d at 58 (citing Green, 264 Va. at 611, 571
S.E.2d at 139). The instructions provided by the trial court
were designed to focus the jury's attention on the specific
purpose for which the jurors needed to consider Gilkes' and
26
Hetrick's statements, namely to show their states of mind in
order to explain their actions. For this reason, the trial
court's instructions were adequate to address any prejudice
caused by the statements, and eliminated the likelihood that
the jury would consider the statements as proof that Teleguz
was a member of the "Russian Mafia." Accord Upchurch v.
Commonwealth, 220 Va. 408, 410-11, 258 S.E.2d 506, 508 (1979)
(approving decision to admit testimony concerning burglary
where jury was properly instructed that testimony was not to
be considered for the truth of the matter, but rather to
establish foundation on another point).
3. Testimony of Pete Sipe, Jr.
Over Teleguz's objection, the Commonwealth asked the
victim's father, Pete J. Sipe, Jr., (Pete Sipe) whether his
daughter ever spoke to him "about Ivan paying child support."
Pete Sipe testified that his daughter told him Teleguz wanted
her to terminate her demand for child support and he was going
to try to take their child.
Teleguz argues on appeal that this testimony was hearsay
and that the trial court erred in admitting it. We agree.
The witness' testimony consisted of "a narration by one person
of matters told him by another." Techdyn Sys. Corp. v.
Whittaker Corp., 245 Va. 291, 300, 427 S.E.2d 334, 340 (1993)
(quoting Williams v. Morris, 200 Va. 413, 416-17, 105 S.E.2d
27
829, 832 (1958)). In the absence of any applicable exception
to the hearsay rule which would have rendered the testimony
admissible, we hold that the trial court erred in admitting
the testimony. See Scruggs v. Commonwealth, 125 Va. 736, 745-
46, 99 S.E.2d 518, 521 (1919)(holding that testimony regarding
"an alleged conversation of the deceased with a witness (but
not in the presence of the accused)" was hearsay).
We nonetheless conclude, based on our review of the
record, that the error was harmless. To the extent the
testimony established that Teleguz was upset that he had been
ordered to pay child support to Sipe, it was cumulative, as
this fact was also established through the testimony of other
witnesses. For this reason, the trial court's admission of
the testimony was harmless error. Code § 8.01-678.
4. Crime Scene Photographs
Teleguz asserts that the trial court erred by admitting
into evidence graphic photographs of the crime scene and
autopsy because the photographs were prejudicial and inflamed
the passion of the jury.
Accurate photographs of a crime scene are not rendered
inadmissible solely because they are gruesome, and autopsy
photographs of the victim are admissible to show the
atrociousness or vileness of a crime. Juniper, 271 Va. at
413, 626 S.E.2d at 415-16, Walton v. Commonwealth, 256 Va. 85,
28
92, 501 S.E.2d 134, 138, cert. denied, 525 U.S. 1046 (1998).
Such photographs must nevertheless be excluded if their
prejudicial effect substantially outweighs their probative
value. Walker v. Commonwealth, 258 Va. 54, 69, 515 S.E.2d
565, 574 (1999), cert. denied, 528 U.S. 1125 (2000). Such
weighing is left to the discretion of the trial court and will
not be disturbed on appeal, absent an abuse of discretion.
Id.
After reviewing the photographs admitted into evidence,
we conclude they were accurate depictions of the crime scene
and autopsy and that the trial court did not abuse its
discretion by admitting them.
E. PENALTY PHASE ISSUES
1. Vileness Statutory Aggravator
As a prerequisite to recommending a sentence of death, a
jury must find beyond a reasonable doubt that the defendant
would commit criminal acts of violence that would
constitute a continuing serious threat to society
or that his conduct in committing the offense for
which he stands charged was outrageously or
wantonly vile, horrible or inhuman in that it
involved torture, depravity of mind or an
aggravated battery to the victim.
Code § 19.2-264.2. In this case, the Commonwealth presented
evidence on both the vileness and future dangerousness
aggravators. The jury found both aggravators were proven
beyond a reasonable doubt.
29
Teleguz claims that the trial court erred in denying his
motion to strike the vileness aggravator. He argues that the
evidence of vileness is insufficient because he did not commit
the murder and the only evidence that can attribute vileness
to him is the evidence that he instructed the perpetrators to
cut Sipe's throat. According to Teleguz, this direction alone
does not support a finding that the actual acts performed to
accomplish the murder are attributable to him. Further, while
recognizing that the issue whether the acts committed by the
actual murderer can be imputed to him is "an open question,"
Teleguz argues that such imputation should not be allowed.
In Lewis v. Commonwealth, 267 Va. 302, 593 S.E.2d 220,
cert. denied, 543 U.S. 904 (2004), the defendant was convicted
of capital murder for hire of her husband. We approved the
jury's finding of vileness because Lewis' actions, as the
mastermind of the murder plot, constituted depravity of mind,
an element satisfying the statutory definition of vileness.
Id. at 316, 593 S.E.2d at 228. In Lewis, the defendant's
actions included planning the murder to acquire her husband's
money and life insurance proceeds, and, although he was still
alive after the attack, taking his wallet from his person and
waiting 45 minutes to call the police. Id. at 305-11, 316,
593 S.E.2d at 221-25, 227.
30
Like Lewis, Teleguz was the mastermind of the murder for
hire plot. He planned the murder to avoid his responsibility
of supporting his child; directed and approved the purchase of
the murder weapon; took the perpetrators to the victim's home;
directed the murder be committed in the apartment without
regard to the well-being of his child who would likely be
present; and directed the actual manner of the murder –
cutting the victim's throat. Teleguz's specific directions
for the manner in which Sipe was to be murdered are evidence
of his depravity of mind. Furthermore, directing the manner
of a murder necessarily includes knowledge of the expected
physical attributes of the murder. In this case, the fatal
wound was a deep stab wound to Sipe's neck which resulted in
massive external and internal bleeding, causing Sipe to drown
in her own blood.
Depravity of mind, as used in Code § 19.2-264.2, is "a
degree of moral turpitude and psychical debasement surpassing
that inherent in the definition of ordinary legal malice and
premeditation." Stewart v. Commonwealth, 245 Va. 222, 245,
427 S.E.2d 394, 409, cert. denied, 510 U.S. 848 (1993)
(quoting Thomas v. Commonwealth, 244 Va. 1, 25, 419 S.E.2d
606, 619-20, cert. denied, 506 U.S. 958 (1992)). The facts in
this case support a finding of such depravity of mind and thus
satisfy the statutory predicate of vileness. The trial court
31
therefore did not err in denying Teleguz's motion to strike
the vileness statutory aggravator.
In light of this holding, we need not address Teleguz's
arguments regarding whether the actions of the perpetrator can
be imputed to Teleguz.
2. Response to Jury Question
During jury deliberations in the sentencing phase of the
trial, the trial court was informed that a juror had asked the
bailiff if Teleguz would have access to her identity and
contact information. The trial court sent the following
statement to the jury room:
As required by law, defense counsel and the
Commonwealth's attorney are provided with the
name, address and occupation of each person in
the venire (in this case, approximately 125
individuals). . . . As a matter of course,
attorneys do not provide copies of this master
list to their clients.
Teleguz claims that the trial court committed reversible error
when it failed to tell the jury "that Mr. Teleguz would not
have access to their personal information."
In support of this claim, Teleguz refers to the trial
court's response as "improper" and "prejudicial." Teleguz
also argues that the response was "factually" erroneous
because the trial court "had the authority to sua sponte place
all the information identifying the jurors under seal." At
oral argument before this Court, counsel for Teleguz agreed
32
that the trial court's response was correct, and conceded that
no objection had been raised at trial as to the accuracy of
the statement, although an objection had been made as to the
sufficiency of the response. According to Teleguz, the
question posed indicated that the jury was not limiting its
consideration to the evidence and the trial court's response
was insufficient because it should have included an admonition
to the jury to restrict their deliberations to the evidence.
Teleguz's arguments on this point have shifted throughout
the course of this litigation. We do not consider the
argument made in this Court that the trial court should have
sua sponte placed the juror's identifying information under
seal because that argument was not made in the trial court.
Rule 5:25. The argument regarding the sufficiency of the
trial court's response made before the trial court and in oral
argument here, is not encompassed within the assignment of
error and thus we do not consider it, Rule 5:17(c). Moreover,
Teleguz's counsel agreed that the trial court's response was
correct. Accordingly, we reject this assignment of error.
F. POST-TRIAL ISSUES
1. Brady Claim
A number of Teleguz's assignments of error are directed
to his claim that the Commonwealth violated his due process
rights under Brady v. Maryland, 373 U.S. 83 (1963), and its
33
progeny by suppressing material evidence that was exculpatory
or could lead to exculpatory evidence.4 The following facts
are relevant to Teleguz's Brady violation claim. According to
his written notes, Investigator Whitfield interviewed Moore on
December 18, 2001, at the office of Walter Green, Moore's
attorney. The handwritten notes state that the Commonwealth's
Attorney, Moore, and Green signed a "proffer letter," and that
Moore then stated that on the "day before" Sipe's murder he,
along with Ryan Ferguson and Will Davis, were outside Moore's
apartment smoking marijuana when he saw a white male with
"mustache," but who was otherwise "clean shaven" leave Sipe's
apartment. Moore was shown a photograph array at the
interview which included Teleguz's photograph and, according
to the notes, Moore identified Teleguz with 70 percent
certainty "especially if he had a mustache."
Investigator Whitfield also made handwritten notes of two
November 2001 interviews with Ryan Ferguson. The notes state
that Ferguson saw a male who looked to be Hispanic with a
goatee enter and leave Sipe's apartment on July 21, 2001.
According to the notes, Ferguson was shown a photograph array
which included Teleguz's photograph. At first Ferguson said
4
Included in this argument on brief was an assignment of
error regarding the trial court's refusal to grant a
continuance following Moore's identification of Teleguz from a
34
none of the photographs looked like the person he saw, but
then said that Teleguz's photograph looked the "most" like the
person he saw, but that he was not certain. None of the
handwritten notes were provided to Teleguz prior to trial.5
At trial, the Commonwealth showed Moore the photograph
array containing Teleguz's picture. Moore testified that
Investigator Whitfield had showed him this array sometime
after Sipe's death and that he had identified Teleguz as the
person he had seen leaving Sipe's apartment.
Following a lunch break when Teleguz had the opportunity
to check his files, Teleguz objected to the admission of the
photograph array and moved for a mistrial, asserting he was
"surprised" by Moore's testimony and had not been provided
with the photograph array. Before the trial court ruled on
Teleguz's motion, Investigator Whitfield was questioned
outside of the presence of the jury regarding Moore's
identification from the photograph array. Investigator
Whitfield testified that he had interviewed Moore "probably
photographic array. As discussed above, this assignment of
error was not preserved.
5
Prior to trial, Teleguz did receive a computer disc that
contained a typed portion of Investigator Whitfield's notes
from his December 18, 2001 interview with Moore. The typed
document referenced a proffer letter signed by the
Commonwealth's Attorney, Moore, and Green, and recited Moore's
observation of an unknown male leaving Sipe's apartment on
Saturday evening. This document did not refer to an
identification of Teleguz from a photograph array.
35
two weeks" after the murder, although he could not recall the
precise date without his notes. He believed the interview
took place at Moore's residence and that when Moore was shown
the photograph array, Moore identified Teleguz but was not 100
percent certain of the identification. Investigator Whitfield
testified that he had given his notes to the Commonwealth's
Attorney.
Teleguz then objected to the photograph array as "unduly
suggestive," and reiterated that he had received nothing in
discovery regarding Moore's identification of Teleguz,
including Investigator Whitfield's notes. The trial court
denied Teleguz's motion for a mistrial and admitted the
photograph array into evidence. Investigator Whitfield then
essentially repeated his testimony in the presence of the
jury, except for certain statements regarding who was present
during the interview and the photograph array.
Following completion of the guilt and penalty portions of
the capital murder proceeding, Teleguz filed a motion to
compel disclosure of, inter alia, any material relating to
Investigator Whitfield's interviews with Moore, Ferguson, and
Davis, and any proffer agreement between the Commonwealth and
Moore. The trial court granted Teleguz's motion and the
Commonwealth provided Teleguz with Investigator Whitfield's
handwritten notes from the interviews with Moore and Ferguson.
36
The Commonwealth maintained that there were no notes from any
interview with Davis and that it did not have in its
possession any signed proffer agreement relating to Moore.
The Commonwealth did provide Teleguz with a copy of its
standard proffer agreement.
Teleguz then filed a motion asking the trial court to set
aside the verdict or in the alternative to set aside the
jury's recommendation of the death penalty and impose a
sentence of life imprisonment pursuant to Code § 19.2-264.5,
relying in part on arguments that the evidence suppressed by
the Commonwealth was material and the Commonwealth's
suppression denied Teleguz a fair trial. The Commonwealth, in
response, asserted inter alia that Teleguz had access prior to
trial to a computer disc which contained a portion of the
interview with Moore including a reference to a proffer
agreement but not to the photograph array identification. The
Commonwealth also argued that prior to trial Teleguz had a
copy of the application for a Pennsylvania search warrant
dated December 14, 2001, which referred to the interview with
Ferguson and Ferguson's identification of Teleguz from the
photograph array. Finally, the Commonwealth argued that even
if the evidence not provided was favorable to Teleguz, there
was no support for the proposition that the result of the
proceeding would have been different.
37
Following a hearing, the trial court denied Teleguz's
motion, concluding that, even if material information had been
suppressed there was no violation under Brady because there
was no likelihood that the verdict would have been different.
On appeal, Teleguz asserts that the trial court committed
reversible error in refusing to grant a mistrial, refusing to
set aside the death sentence and impose a sentence of life for
good cause shown pursuant to Code § 19.2-264.5, and refusing
to set aside the guilty verdict.
In Brady, the United States Supreme Court held that "the
suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence
is material to either guilt or to punishment." 373 U.S. at
87. We have recently reviewed the principles to be applied in
considering whether there has been a violation of the Brady
disclosure rule and its progeny:
There are three components of a violation of the
rule of disclosure first enunciated in Brady: a)
The evidence not disclosed to the accused 'must
be favorable to the accused, either because it is
exculpatory,' or because it may be used for
impeachment; b) the evidence not disclosed must
have been withheld by the Commonwealth either
willfully or inadvertently; and c) the accused
must have been prejudiced. [Strickler v. Greene,
527 U.S. 263, 281-82 (1999).] Stated
differently, "[t]he question is not whether the
defendant would more likely than not have
received a different verdict with the evidence,
but whether in its absence he received a fair
trial, understood as a trial resulting in a
38
verdict worthy of confidence." Kyles v. Whitley,
514 U.S. 419, 434 (1995).
Workman v. Commonwealth, 272 Va. 633, 644-45, 636 S.E.2d 368,
374 (2006).
In determining the question of materiality, we consider
the suppressed evidence as a whole, not item by item and if a
Brady violation is established, we do not engage in a harmless
error review. Id.; Kyles v. Whitley, 514 U.S. 419, 435–36
(1995). Instead, a "constitutional error occurs, and the
conviction must be reversed, only if the evidence is material
in the sense that its suppression undermines confidence in the
outcome of the trial." United States v. Bagley, 473 U.S. 667,
678 (1985); Workman, 272 Va. at 645, 363 S.E.2d at 374.
The suppressed evidence Teleguz relies on to establish a
Brady violation consists of Investigator Whitfield's
handwritten notes relating to his interviews with Moore and
Ferguson, the photograph array used by Moore and Ferguson in
the identification of Teleguz, and Moore's proffer agreement.6
If this evidence had not been suppressed, Teleguz contends, he
would not have been "surprised" when Moore testified regarding
his identification of Teleguz from the photograph array; he
could have used the evidence to impeach the testimony of Moore
6
Teleguz identified a number of other documents which he
also alleged were suppressed. Because he does not rely on
39
and Investigator Whitfield with regard to Moore's
identification of Teleguz as the person seen leaving Sipe's
apartment prior to her murder; and the uncertainty in the
identification of Teleguz by Moore and Ferguson shown in the
suppressed evidence could have supported a third party
perpetrator defense. Teleguz argues that this suppressed
evidence was material under the standard in Kyles, because the
evidence "significantly undermined the credibility of both Mr.
Moore and Inv[estigator] Whitfield, as well as the overall
reliability of the police investigation." Without the
testimony of Moore and Investigator Whitfield, Teleguz
contends "the Commonwealth's case rested entirely on
unreliable and biased witnesses, such as Mr. Hetrick, a
confessed murderer, Mr. Gilkes, a confessed co-conspirator,
and Mr. Safanov, a career criminal, each of whom had received
favorable deals in exchange for their testimony." In summary,
Teleguz argues that the inability to impeach the testimony of
Moore and Investigator Whitfield, the "only two supposedly
unbiased witnesses," undermines the confidence in the outcome
of the trial because evidence of Teleguz's guilt would then
rest solely on the testimony of Gilkes, Hetrick, and Safanov.
these documents to establish his Brady violation claim, we do
not consider or address these documents in our analysis.
40
While it is clear that Teleguz did not have the evidence
at issue prior to trial, the Commonwealth argues, and the
record reflects, that Teleguz did have access before the trial
to the information that Investigator Whitfield had interviewed
Moore in December 2001, that a proffer agreement was signed,
and that Moore, along with Davis and Ferguson, had seen an
unknown person coming from Sipe's apartment prior to her
murder. Teleguz also had information indicating that Ferguson
had been interviewed by the police and that he was shown a
photograph array from which he identified Teleguz as the
person he saw leaving Sipe's apartment. The Commonwealth also
argues that it did not suppress any exculpatory evidence
relating to Ferguson or Davis, that Teleguz had access to the
photograph array at trial before Moore testified and had the
opportunity to fully cross-examine Investigator Whitfield
regarding Moore's identification of Teleguz from the
photograph array, and finally that it did not suppress Moore's
proffer agreement because it did not have such agreement in
its possession.
In resolving Teleguz's Brady claim, we will assume
without deciding that the evidence at issue was favorable to
Teleguz and was suppressed. We nevertheless conclude that
this evidence does not meet the test of materiality because
its suppression does not undermine confidence in the outcome
41
of the trial. Kyles, 514 U.S. at 434-38. Teleguz was not
charged with being the actual perpetrator of the wounds
inflicted on Sipe. Therefore, impeaching Moore's testimony
regarding whether Teleguz was present at Sipe's apartment
prior to her murder would not undermine the testimony
regarding whether Teleguz hired others to commit the murder.7
Teleguz's second theory, that impeaching Investigator
Whitfield's testimony would have called into question the
reliability of the police investigation and in turn undermine
confidence in the verdict, is equally unavailing. The
investigation that led to identifying the perpetrators and
Teleguz's role in the murder was initiated by United States
Deputy Marshal Nelson, not Investigator Whitfield. In his
interviews with Safanov, Deputy Marshal Nelson learned that
Teleguz told Safanov he had hired someone to kill Sipe and
that Teleguz was "responsible" for her death because he was
angry about making child support payments. Based on this
information, Deputy Marshal Nelson located and identified
Gilkes. There is no basis to conclude that any question about
the reliability of Investigator Whitfield's investigation
7
Teleguz argues that Moore's testimony on this issue had
to be relevant to his guilt or it would not have been
admissible. However, such testimony could be relevant to
establish knowledge and familiarity with Sipe and her
apartment. Although such testimony could have been cumulative
42
would have impugned Deputy Marshal Nelson's investigation,
which initially identified Teleguz's role in Sipe's murder and
ultimately led to the confessions by Gilkes and Hetrick.
Finally, we find no merit in Teleguz's argument that the
reliability of the proceeding is suspect because the only
independent, and by implication credible, witnesses were Moore
and Investigator Whitfield. Neither Moore nor Investigator
Whitfield testified about any independent knowledge regarding
the transaction between Teleguz, Gilkes, and Hetrick.
Regardless of Moore's and Investigator Whitfield's testimony
and credibility, in order to return a guilty verdict, the jury
had to believe the testimony of Safanov, Gilkes, and Hetrick,
irrespective of their character and any "deals" they received
from the government. Accordingly, the suppression of the
evidence at issue did not undermine confidence in the
reliability of the outcome of the proceeding and the trial
court did not err in admitting the photograph array, or in
denying Teleguz's motion for a mistrial, motion to set aside
the sentence of death and impose a life sentence, and motion
to set aside the verdict based on an alleged Brady violation.
2. Disqualification of Commonwealth's Attorney
as Teleguz argues, no such objection to its admission was made
on that basis.
43
Teleguz assigns error to the ruling of the trial court in
post-trial proceedings denying his motion to disqualify the
Commonwealth's Attorney. The Commonwealth's Attorney was
present at meetings between Investigator Whitfield, Ferguson,
and Moore. Teleguz argues that the Commonwealth's Attorney's
testimony on what transpired at these meetings was "critical"
in light of the inconsistencies in the testimony of the other
attendees and the questionable credibility of those witnesses.
Based on his argument that the Commonwealth's Attorney was a
material witness, Teleguz asserts that the trial court erred
in denying his motion to disqualify the Commonwealth's
Attorney and to issue a subpoena for her testimony.
Teleguz's position is based on the principle that a
lawyer should not act as an advocate in an adversarial
proceeding in which the lawyer is likely to be a necessary
witness. Rule 3.7 of the Virginia Rules of Professional
Conduct. Critical to the application of this principle is the
requirement that the lawyer be a necessary witness.
Sutherland v. Jagdmann, No. 3:05CV042-JRS, 2005 U.S. Dist.
LEXIS 25878, at *5 (E.D. Va. Oct. 31, 2005) ("[A] party
seeking to invoke the witness-advocate rule for
disqualification purposes must prove that the proposed
witness-advocate's testimony is strictly necessary.")
(internal citations omitted). The facts of this case do not
44
provide that predicate. As noted above, the testimony of
Ferguson and Moore regarding the identification of Teleguz is
not material to the elements of the crime charged.
Furthermore, Teleguz does not rely on the substance of any
testimony he suggested the Commonwealth's Attorney would
provide, only that it would clear up "inconsistencies" in the
testimony of the others at the meeting. Adding the testimony
of a fourth person may reinforce one version of the facts or
add another, but would not "clear up" inconsistent testimony.
Finally, any testimony by the Commonwealth's Attorney
regarding the exchanges between Investigator Whitfield and
Moore or Investigator Whitfield and Ferguson, would be
inadmissible hearsay. Therefore, the trial court did not
abuse its discretion in denying Teleguz's motion.
3. Subpoena for Walter Green
Teleguz assigns error to the trial court's refusal to
issue a subpoena to Walter Green, Moore's attorney. Teleguz
argues here, as he did in the trial court, that Green
represented Moore and Ferguson in this case, and Teleguz and
Sipe's mother in other matters. This concurrent
representation, Teleguz argued, produced a conflict of
interest, and Teleguz should have been entitled to examine
Green about the conflicted representation, his role in
inducing Moore and Ferguson to identify Teleguz and any
45
agreements reached with them, and the nature of any
discussions with the Commonwealth.
As the trial court stated in denying Teleguz's motion,
allegations of conflicting representation are based on the
Rules of Professional Responsibility and are matters for the
Virginia State Bar disciplinary process. The remainder of the
testimony sought by Teleguz's motion would either be
inadmissible hearsay, restricted by the attorney-client
privilege, or cumulative of other testimony regarding the
interviews. Accordingly, we find no error in the ruling of
the trial court denying Teleguz's subpoena request.
4. Use of False Evidence
Teleguz argues the Commonwealth violated his Due Process
rights, pursuant to Napue v. Illinois, 360 U.S. 264 (1959), by
knowingly permitting Investigator Whitfield to give false
testimony. A conviction obtained based on false testimony
"must be set aside if there is any reasonable likelihood that
the false testimony could have affected the judgment of the
jury." United States v. Agurs, 427 U.S. 97, 103 (1976). This
requirement applies even where the testimony affects the
witness' credibility, rather than the issue of guilt. Napue,
360 U.S. at 269-70. In order to find that a violation of
Napue occurred in this case, we must determine first that the
testimony identified by Teleguz was false, second that the
46
prosecution knew of the falsity, and finally that the falsity
affected the jury's judgment. Id. at 269-71.
Teleguz identifies five statements by Investigator
Whitfield which he claims meet these criteria. As an initial
matter, two of these statements, Investigator Whitfield's
testimony regarding who was present at the interview and the
races of the other individuals whose photographs were included
on the photograph array, were made during a voir dire that
took place outside the presence of the jury and, therefore,
could not have "affected the judgment of the jury," Napue, 360
U.S. at 271, in violation of the Due Process Clause.
We conclude that the other portions of Investigator
Whitfield's testimony cited by Teleguz likewise fail to give
rise to a violation of Napue. Contrary to Teleguz's argument,
Investigator Whitfield did not falsely testify about the
timing and location of his interview with Moore. Although a
review of the record reveals some inconsistencies in
Investigator Whitfield's testimony, much of his testimony,
including the inconsistencies, was given in conjunction with
his own qualification that he was unable to remember or that
he would need to consult his notes to refresh his
recollection. These statements were not false, but rather
were simply statements of what he believed to be true,
accompanied by a qualification that he was not certain.
47
The final two statements identified as false by Teleguz
relate to Investigator Whitfield's testimony regarding the
impetus for his interview with Moore. At trial, Investigator
Whitfield testified that he approached Moore because he
believed that Moore, as Sipe's neighbor, might have
information regarding her murder, and because the police were
already familiar with Moore based on previous interactions
with him. Although Whitfield's testimony in a post-trial
hearing was inconsistent with these statements, nothing in the
record establishes that the prosecutor knew that Investigator
Whitfield's trial testimony was inaccurate.8
As we explained above, Teleguz's guilt depended on the
testimony of the Commonwealth's witnesses which established
that Teleguz hired Gilkes and Hetrick to kill Sipe. Even
assuming that the prosecutor knew of the alleged false
testimony, there is no "reasonable likelihood" that
Investigator Whitfield's testimony on the reason for
interviewing Moore "could have affected the judgment of the
jury." Agurs, 427 U.S. at 103.
G. STATUTORY REVIEW
1. Passion and Prejudice
8
While Investigator Whitfield's notes indicate the
prosecutor was present at the meeting with Moore, they do not
state whether the meeting took place as a result of Moore
having approached the police.
48
Teleguz argues that the jury's recommendation to impose a
sentence of death was made under the influence of passion and
prejudice because of a statement made by the prosecutor in
closing argument. Specifically, the prosecutor told the jury
that it should find Teleguz posed a future danger and should
receive the death penalty because "[a]t any time he can pick
up a phone . . . and dial up a murder." According to Teleguz,
this statement "pointedly instilled fear in the members of the
jury for their very lives." The prejudicial effect of the
statement was "greatly amplified," Teleguz asserts, by the
trial court's subsequent explanation to the jury regarding
Teleguz's access to the jurors' names and contact information.
Finally, Teleguz argues that the Commonwealth made improper
arguments designed to establish that Teleguz was a member of
the "Russian Mafia" even though there was no evidence to
support any such connection. These arguments, according to
Teleguz, "raise the strong inference" that the jury's finding
of future dangerousness and the recommendation of the death
penalty were based on "passion and prejudice, not facts."
Code § 17.1-313(C)(1) requires that we consider and
determine "[w]hether the sentence of death was imposed under
the influence of passion, prejudice or any other arbitrary
factor." In conducting this review, we make an independent
review of the entire record. Based on this review we
49
determine whether the record shows the existence of passion,
prejudice or any other arbitrary factor and, if so, whether
such elements influenced the penalty recommended by the jury.
During closing argument in the penalty phase, the
Commonwealth's Attorney made the following statement:
How would he be dangerous in prison? At any
time he can pick up a phone when he has access
to a phone and dial up a murder because he can
call another Aleksey Safanov or another Edwin
Gilkes or another Michael Hetrick. When a man
can hire out a murder he can hire out a murder
with a mere telephone when you have the
abilities that Ivan Teleguz has shown.
Teleguz claims that this argument appealed to the jurors'
passions by exciting their personal interests in protecting
their safety. The statement, however, did not directly
suggest any connection between the jurors and Teleguz's future
criminal action. Compare, e.g., Hutchins v. Commonwealth, 220
Va. 17, 19, 255 S.E.2d 459, 460-61 (1979) (argument
questioning whether the jury would suggest a sentence that
would "send [a message] out to the people of Franklin County
[that says] 'Come on down. It's down here. It's yours for
the picking. We don't care.' "). Considering the nature of
the crime of murder for hire, the Commonwealth's statement in
this case is analogous to an argument in a capital murder case
that a defendant should receive the death penalty because he
50
could be a future danger by replicating his crime of murder
while in the prison.
Teleguz argues however, that the effect of this statement
was enhanced by the prior references to a connection between
Teleguz and the "Russian Mafia" and the explanation made to
the jury by the trial court regarding Teleguz's access to
jurors' names and contact information.
As discussed above, the record shows that at some point
during jury deliberations, one of the female jurors, not
necessarily the jury foreperson, asked the bailiff if Teleguz
"know[s] her identity and location." Teleguz argues that the
trial court's answer "endorsed the Commonwealth's inflammatory
argument, thereby underscoring the jurors' explicit fear that
Mr. Teleguz represented a threat to their physical safety."
The jury's subsequent recommendation of the death penalty was,
according to Teleguz, based on their "personal interest in
their own safety and security" and thus made under the
influence of passion, prejudice, or other arbitrary factor.9
We first note that, unlike other questions submitted to
the trial court during jury deliberations in this case, the
question regarding Teleguz's knowledge of jurors' names and
9
Teleguz asserted in oral argument that the jury
delivered its sentencing verdict "within minutes" after it
received the trial court's response. However, nothing in the
51
contact information was not submitted to the court in writing
and was made orally by a single juror to the bailiff regarding
information about her. Therefore, the record is far from
clear that the jury as a whole was concerned about whether
Teleguz had access to the jurors' identity or location
information. Furthermore, the trial court's response to the
inquiry was correct and indicated that defendants are
generally not provided such information.
Finally, the fact that Teleguz could hire someone to kill
another person was established by the evidence in this case;
that is precisely the crime for which Teleguz was convicted.
Any purported connection to the "Russian Mafia" does not
change that fact. Basing a sentencing determination on an
undisputed fact is not an act of passion and prejudice. The
jurors, furthermore, were clearly instructed during the trial
that the testimony regarding the "Russian Mafia" was solely
for the purpose of showing the witnesses' state of mind, not
for the truth of the matter.
Teleguz's argument rests on the premise that the
prosecutor's statements injected passion and prejudice into
the jury's decision making by conveying a threat to the
jurors' personal safety and security. For the reasons stated
record indicates the time interval suggested by Teleguz, or
any other time interval.
52
above, we conclude that the prosecutor's statements were not
addressed to the jurors' safety and security, and even if that
was a fair inference, the record does not support a conclusion
that the jury was concerned about the issue. Even assuming
that the jurors harbored sufficient concern about their safety
the record does not reveal that such concern influenced their
decision to recommend the death penalty.
Accordingly, after a complete review of the record, we
conclude that the sentence of death was not the product of
passion, prejudice, or other arbitrary factor.
2. Proportionality
Pursuant to Code § 17.1-313(C)(2), this Court is required
to review a sentence of death in order to determine "[w]hether
the sentence of death is excessive or disproportionate to the
penalty imposed in similar cases, considering both the crime
and the defendant." We do not conduct a proportionality
review to "insure complete symmetry among all death penalty
cases." Muhammad, 269 Va. at 532, 619 S.E.2d at 63 (quoting
Orbe v. Commonwealth, 258 Va. 390, 405, 519 S.E.2d 808, 817
(1999), cert. denied, 529 U.S. 1113 (2000)). In conducting
the proportionality review, this Court must determine whether
"other sentencing bodies in this jurisdiction generally impose
the supreme penalty for comparable or similar crimes,
considering both the crime and the defendant." Lovitt v.
53
Commonwealth, 260 Va. 497, 518, 537 S.E.2d 866, 880 (2000),
cert. denied, 534 U.S. 815 (2001). The review is done to
"identify and invalidate the aberrant death sentence."
Muhammad, 269 Va. at 532, 619 S.E.2d at 63.
In conducting this review, we have examined all capital
murder cases reviewed by this Court in which murder for hire
was the predicate offense, where the Commonwealth sought the
death penalty, and where both aggravating factors were found.
Because only a single case, Wolfe v. Commonwealth, 265 Va.
193, 576 S.E.2d 471, cert. denied, 540 U.S. 1019 (2003),
involved both aggravating factors, we have also examined those
cases where a sentence of death was imposed, murder for hire
was the predicate offense, and only one aggravating factor was
found, Fisher v. Commonwealth, 236 Va. 403, 374 S.E.2d 46
(1988), cert. denied, 490 U.S. 1028 (1989) (finding by jury of
future dangerousness); Lewis v. Commonwealth, 267 Va. 302, 593
S.E.2d 220, cert. denied, 543 U.S. 904 (2004) (finding by
court of vileness). Finally, our review included those cases
in which the defendant was convicted of murder for hire in
violation of Code § 18.2-31(2) and received a sentence of
life. Based on this review, we find that Teleguz's sentence
was neither excessive nor disproportionate to sentences
imposed in capital murder cases similar to the instant case.
54
Teleguz argues that his sentence is disproportionate
given that Hetrick, the actual killer, only received a
sentence of life in prison. This Court has stated that it
will not compare the sentences received by confederates in
order to determine if a sentence is excessive or
disproportionate because "[t]he test is not whether a jury may
have declined to recommend the death penalty in a particular
case but whether generally juries in this jurisdiction impose
the death sentence for conduct similar to that of the
defendant." Stamper v. Commonwealth, 220 Va. 260, 283-84, 257
S.E.2d 808, 824 (1979), cert. denied, 445 U.S. 972 (1980).
See also Lewis, 267 Va. at 313, 593 S.E.2d at 227; Murphy v.
Commonwealth, 246 Va. 136, 145, 431 S.E.2d 48, 53, cert.
denied, 510 U.S. 928 (1993); Thomas, 244 Va. at 26, 419 S.E.2d
at 620; King, 243 Va. at 371, 416 S.E.2d at 679. Accordingly,
we reject Teleguz's argument here.
III. CONCLUSION
Upon review of the record and arguments presented, we
find no reversible error in the judgment of the trial court.
Additionally, we find no reason to commute or set aside the
sentence of death. The judgment of the trial court is
accordingly affirmed.
Affirmed.
55