Walker v. Commonwealth

Present: All the Justices

DARICK DEMORRIS WALKER

v. Record Nos. 990096 & 990097
OPINION BY JUSTICE ELIZABETH B. LACY
June 11, 1999
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge

Darick Demorris Walker was indicted for the capital

murder of Stanley Roger Beale and Clarence Threat within a

three-year period, Code § 18.2-31(8), for four counts of the

use of a firearm in the commission of a felony, Code § 18.2-

53.1, and for two counts of burglary, Code § 18.2-90. He was

convicted of all offenses by a jury. After hearing evidence

on the issue of punishment, the jury fixed the punishment for

the capital offense at death based upon the vileness and

future dangerousness predicates, life imprisonment on each of

the burglaries, and a total of 18 years imprisonment for the

firearms offenses. The trial court, after considering the

sentencing report of a probation officer, sentenced Walker in

accord with the jury verdicts. Walker appealed his capital

murder conviction, Record No. 990096. We have certified

Walker's appeal of his non-capital murder convictions from the

Court of Appeals, Record No. 990097, and have consolidated the

two appeals.

I. Evidence
 Applying familiar principles, we recite the facts in the

light most favorable to the Commonwealth, the party prevailing

below. See Horton v. Commonwealth, 255 Va. 606, 609, 499

S.E.2d 258, 259 (1998).

A. Stanley Beale

Catherine Taylor and her children, Monique, Bianca, and

Sidney, lived in the University Terrace Apartments with

Stanley Beale, the children's father. On the evening of

November 22, 1996, Taylor heard "a boom like noise" in the

living room. Taylor left the bedroom where she had been with

Sidney, an infant, and as she entered the living room, she saw

a man kick in the locked front door. Taylor later identified

the man as Walker. Walker was holding a gun yelling, "Where

is he?" Walker continued yelling, asking Beale "what you keep

coming up to my door, what you looking for me for?" Beale,

who was standing in the doorway to the kitchen, answered that

he did not know Walker and did not know where Walker lived.

Bianca, who was 13 years old at the time, shouted at Walker

that her father did not know him. Walker began shooting at

Beale as Taylor ushered Bianca and Monique into the bathroom

to hide in the bathtub. Walker shot Beale three times,

killing him.

Bianca testified that she knew Walker as "Todd" and

subsequently identified Walker in a photo line-up as the

2
person who killed her father. Tameria Patterson, a fourteen-

year-old girl who was visiting a friend who lived in the

University Terrace Apartments, testified that on the night of

the murder, she saw a man she knew as "Todd" enter her

friend's apartment and say "I shot him." When shown a photo

spread, Tameria identified Walker as the person who had

entered the apartment.

B. Clarence Threat

On the night of June 18, 1997, Andrea Noble and Clarence

Threat were sleeping in their bedroom when they were awakened

by a "pop" coming from the screen door, followed by a knock at

the door. Noble went to the door and looked outside through a

small window in the door, but did not see anyone. On two

subsequent occasions she again heard a knock and went to the

door, but did not see anyone. Sometime after the third knock,

the door was "kicked open." Noble went to the living room and

saw a person she knew as "Paul" standing with a gun. "Paul"

pointed the gun at Noble as she backed into the bedroom. When

they reached the bedroom, "Paul" hit Noble with the back of

the gun and then shot Threat in the leg. In the bedroom,

"Paul" and Threat exchanged words and "Paul" shot Threat

again. Threat sustained a total of seven gunshot wounds. He

died as a result of a gunshot wound to the chest. The shooter

told Noble that if she told anyone "he would come back and

3
kill [her] and [her] kids." At trial, Noble identified Walker

as the person she knew as "Paul."

II. Constitutionality of Virginia's
Death Penalty Statutes

In his first assignment of error, Walker asserts that

Virginia's death penalty statutes, Code §§ 19.2-264.2 to -

264.5, and 17.1-313, are unconstitutional. Specifically, he

argues that the aggravating factors which the jury must

consider to impose the death penalty are unconstitutionally

vague, and that the failure to provide jury instructions

regarding the meaning of those terms or to properly inform and

instruct the jury on the consideration of mitigation evidence

violates the Eighth and Fourteenth Amendments to the United

States Constitution and Sections 9 and 11 of Article I of the

Virginia Constitution. We have previously considered and

rejected these contentions, and Walker presents no basis for

altering our prior decisions. See M. Smith v. Commonwealth,

219 Va. 455, 476-77, 248 S.E.2d 135, 148 (1978), cert. denied,

441 U.S. 967 (1979)(rejecting contention that "vileness" and

"future dangerousness" predicates for imposition of the death

penalty unconstitutionally fail to guide the jury's

discretion); Watkins v. Commonwealth, 229 Va. 469, 490-91, 331

S.E.2d 422, 438 (1985), cert. denied, 475 U.S. 1099

4
(1986)(Constitution requires only that jury be instructed to

consider mitigating evidence.)

Walker also asserts that the death penalty statutes are

unconstitutional because they do not require the trial court

to set aside a sentence of death upon a showing of good cause,

they allow the trial court to consider hearsay evidence in the

post-hearing sentence report, and the review conducted by this

Court is inconsistent with the requirements of the Eighth

Amendment. These assertions have previously been rejected in

Breard v. Commonwealth, 248 Va. 68, 76, 445 S.E.2d 670, 675,

cert. denied, 513 U.S. 971 (1994); O'Dell v. Commonwealth, 234

Va. 672, 701-02, 364 S.E.2d 491, 507-08, cert. denied, 488

U.S. 871 (1988); R. Smith v. Commonwealth, 239 Va. 243, 253,

389 S.E.2d 871, 876, cert. denied, 498 U.S. 881 (1990),

respectively, and Walker fails to advance any reason to depart

from these decisions.

III. Request for a Bill of Particulars

Walker next assigns error to the trial court's denial of

his request for a bill of particulars. He contends that the

information he requested was necessary to ensure his Sixth

Amendment right to effective assistance of counsel, and that

the lack of such information undermines the "greater degree of

reliability" that due process requires in death penalty cases.

In his request for a bill of particulars, Walker sought

5
identification of the grounds for the capital murder charge

and the evidence upon which the Commonwealth would rely to

prove the charge. He further requested the Commonwealth to

identify and provide a "narrowing construction" of the

aggravating factors upon which it intended to rely in seeking

the death penalty as well as the evidence it intended to use

in support of the aggravating factors.

The Commonwealth responded to Walker's request by

reciting the grounds upon which it believed Walker was guilty

of capital murder. The Commonwealth further stated that, if

Walker was convicted of capital murder, it would seek the

death penalty based on the aggravating factors of "vileness"

and "future dangerousness." The Commonwealth stated that, to

prove "vileness," it would rely on the depravity of mind and

aggravated battery components provided in Code § 19.2-264(C).

Finally, the Commonwealth informed Walker that in proving

"future dangerousness," it would rely on Walker's adult and

juvenile criminal record, the circumstances of the commission

of the current offenses, Walker's lack of remorse, and

evidence of other crimes whether adjudicated or unadjudicated.

The information requested by Walker is virtually

identical to that requested by the defendant in Strickler v.

Commonwealth, 241 Va. 482, 404 S.E.2d 227, cert. denied, 502

U.S. 944 (1991). In Strickler, we held that where the

6
indictment is sufficient, i.e., gives the accused "notice of

the nature and character of the offense charged so he can make

his defense," a bill of particulars is not required. Id. at

490, 404 S.E.2d at 233 (quoting Wilder v. Commonwealth, 217

Va. 145, 147, 225 S.E.2d 411, 413 (1976)).

Here, there is no challenge to the sufficiency of the

indictment. As in Strickler, those parts of Walker's request

for a bill of particulars seeking disclosure of the evidence

upon which the Commonwealth intended to rely in the guilt and

sentencing phases of the trial "are sweeping demands for

pretrial disclosure of all the Commonwealth's evidence." 241

Va. at 490, 404 S.E.2d at 233.

However, "[t]here is no general constitutional right to

discovery in a criminal case, even where a capital offense is

charged." Id. at 490-91, 404 S.E.2d at 233. Walker, like the

defendant in Strickler, received all the information to which

he was entitled. Furthermore, whether to require the

Commonwealth to file a bill of particulars is a matter that

falls within the sound discretion of the trial court, Goins v.

Commonwealth, 251 Va. 442, 454, 470 S.E.2d 114, 123, cert.

denied, 519 U.S. 887 (1996), and Walker has not demonstrated

an abuse of that discretion.

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 Accordingly, we conclude that the trial court did not err

in denying Walker's request for a bill of particulars in this

case.

IV. Motion for Discovery and Inspection

Walker assigns error to the trial court's denial of his

motion for discovery and inspection. He admits that the

Commonwealth provided him with all discovery and inspection to

which he was entitled under state statutes and Rules of Court,

and he does not assert that the Commonwealth improperly

withheld any exculpatory information. Instead, Walker argues

that the trial court erroneously refused to extend the

Commonwealth's duty to disclose exculpatory evidence imposed

by Brady v. Maryland, 373 U.S. 83 (1963), and to require the

Commonwealth to disclose "all evidence, information and all

other materials which the Commonwealth intended to offer to

establish the guilt of the appellant . . . ." Walker argues

that such extension is required to ensure the defendant's

right to effective assistance of counsel and to meet the due

process requirement of reliability in the determination that

the death penalty is the appropriate punishment. We disagree.

Neither the holding in Brady nor principles of due

process impose any requirement on the Commonwealth to provide

the information sought by Walker beyond that which is

exculpatory. United States v. Agurs, 427 U.S. 97, 109 (1976);

8
see Spencer v. Commonwealth, 238 Va. 295, 303, 384 S.E.2d 785,

791 (1989), cert. denied, 493 U.S. 1093 (1990). We do not

find anything in Walker's arguments to warrant the extension

of the holding in Brady he suggests. Because the Commonwealth

provided Walker all the discovery to which he was entitled, we

find no error in the denial of his motion for discovery and

inspection.

V. Additional Peremptory Challenges

Walker asserts that a defendant is entitled to additional

peremptory challenges to "ensure rights guaranteed by the

Sixth, Eighth and Fourteenth Amendments to the Constitution of

the United States," and suggests that because a number of

states and federal courts have allowed additional peremptory

strikes the trial court erred in denying his request for

additional strikes.

However, a criminal defendant has no constitutional right

to peremptory challenges. Mu'Min v. Virginia, 500 U.S. 415,

424-25 (1991). And, as we have said on numerous previous

occasions, there is no provision in Virginia law for granting

such additional peremptory strikes. Strickler, 241 Va. at

489, 404 S.E.2d at 232; Spencer v. Commonwealth, 240 Va. 78,

84-85, 393 S.E.2d 609, 613, cert. denied, 498 U.S. 908 (1990);

see Code § 19.2-262. Walker has presented no reason for us to

alter our previous rulings.

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 VI. Evidence of Unadjudicated Criminal Behavior

On August 10, 17, and 18, 1998, pursuant to Code § 19.2-

265.3:2, the Commonwealth filed notices of its intent to

present evidence of unadjudicated criminal conduct of the

defendant at the sentencing phase of the trial. Walker

asserts that admission of this evidence was error on three

primary grounds: (1) without a positive connection of the

evidence to the defendant by some standard of proof, the

evidence does not meet the test of relevancy; (2) due process

requires proof of unadjudicated prior criminal acts beyond a

reasonable doubt when such conduct is relied upon to expose

the defendant to greater or additional punishment; and (3) the

use of unadjudicated criminal acts evidence denies the

defendant his due process rights to notice and a meaningful

opportunity to be heard on evidence used against him which

also results in denial of the defendant's Sixth Amendment

right to effective assistance of counsel. We reject all three

of these arguments for the reasons discussed below.

First, we have previously held that evidence of prior

violent criminal conduct, whether or not adjudicated, is

relevant to the determination of a defendant's future

dangerousness because it has a tendency to show that the

accused would commit criminal acts of violence in the future.

Pruett v. Commonwealth, 232 Va. 266, 284-85, 351 S.E.2d 1, 11-

10
12 (1986), cert. denied, 482 U.S. 931 (1987). Whether the

evidence produced establishes the ultimate fact at issue must,

of course, be tested by some standard of proof. Here, the

ultimate issue of fact was Walker's "future dangerousness,"

which the Commonwealth was required to prove beyond a

reasonable doubt. Walker cites no authority for the

proposition that each piece of evidence offered to prove the

ultimate issue of fact must itself also be tested by some

standard of proof. Rather, that evidence is tested by the

credibility or weight the fact finder chooses to give it. See

Gray v. Commonwealth, 233 Va. 313, 346-47, 356 S.E.2d 157,

175-76, cert. denied, 484 U.S. 873 (1987). Therefore, we

reject Walker's assertion that the evidence of unadjudicated

criminal acts did not meet the test of relevancy because that

evidence was not established by any standard of proof.

Next Walker relies on and quotes from McMillan v.

Pennsylvania, 477 U.S. 79 (1986), for the proposition that

evidence of unadjudicated criminal conduct is subject to the

reasonable doubt standard of evidence in the sentencing phase

of a capital murder trial because it "expose[s]" the defendant

to greater punishment and presents a "radically different

situation from the usual sentencing procedures."

The Supreme Court in McMillan considered whether due

process was offended by a statute which raised the minimum

11
sentence if the trial court in the sentencing phase found that

a defendant had "visibly possessed a firearm" in the

commission of the charged offense. The trial court's finding

did not have to be beyond a reasonable doubt. The defendant

in that case argued that the evidentiary standard of beyond a

reasonable doubt was required because visible possession of a

firearm was, in effect, an element of the offense. He argued

further that even if it was not an element of the offense, due

process required application of the reasonable doubt standard

because a finding of visible possession subjected the

defendant to a greater penalty. The Supreme Court disagreed,

concluding that visible possession of a firearm was not an

element of the offense charged, and that the trial court's

finding did not subject the defendant to a greater penalty but

only raised the minimum sentence. Id. at 95.

In the course of its discussion, the Court observed that,

had the trial court's finding of visible possession of a

firearm exposed the defendant to "greater or additional

punishment," the argument that the finding was an element of

the crime subject to the reasonable doubt standard of proof

"would have at least more superficial appeal." Id. at 88.

The Court also observed that if the sentencing proceeding was

"radically different," the reasonable doubt standard may be

applied to post-trial findings. Id. at 89.

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 Contrary to Walker's assertion, these comments do not

impose a due process requirement that the Commonwealth prove

beyond a reasonable doubt that the defendant engaged in the

unadjudicated criminal conduct offered as evidence in the

sentencing phase of a capital murder trial. These comments

merely suggest that such a burden of proof may be required for

a factual finding that exposes the defendant to greater

punishment when such finding is made in a sentencing

proceeding that is "radically different" from the normal

sentencing proceeding. Even if this suggestion were the rule,

the Virginia death penalty sentencing statute satisfies that

rule. The "finding" that exposes the defendant to the death

penalty is that of future dangerousness, or alternatively,

vileness, which by statute must be supported by proof beyond a

reasonable doubt. See Code § 19.2-264.4(C). Furthermore, in

McMillan, the Supreme Court specifically cited its holding in

Patterson v. New York, 432 U.S. 197, 214 (1977), for the

proposition that the state need not prove beyond a reasonable

doubt every fact it recognizes as a circumstance affecting the

severity of punishment. McMillan, 477 U.S. at 84. Therefore,

we reject Walker's assertion that due process requires that

evidence of unadjudicated criminal conduct admitted to show

the defendant's future dangerousness is subject to the

reasonable doubt standard.

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 Finally, Walker asserts that the use of the unadjudicated

criminal conduct evidence denies him a meaningful opportunity

to be heard on the evidence used against him, thus denying him

effective assistance of counsel. Walker had notice of the

evidence the Commonwealth intended to introduce and the

opportunity to cross-examine the witnesses offering this

evidence. He does not claim such notice was inadequate nor

does he contend that his counsel's performance was inadequate.

Rather Walker argues, on a more general level, that

"counsel defending against prior unadjudicated criminal

conduct [evidence] is beyond the resources and realm of

effective representation in defending a single capital crime."

By this argument Walker seeks to raise a Sixth Amendment claim

without inquiry into counsel's actual performance at trial.

Whether or not such a claim might be sufficient in limited

circumstances, it cannot prevail in this case.

The United States Supreme Court has found constitutional

error without inquiring into counsel's actual performance only

when surrounding circumstances justify a presumption of

ineffectiveness. United States v. Cronic, 466 U.S. 648, 662

(1984). For example, where counsel was totally absent, was

prevented from assisting the accused during a critical stage

of the proceeding, or was prevented from exercising

independent judgment in the manner of conducting the defense,

14
the Supreme Court has presumed that counsel was ineffective

and that the defendant was thus prejudiced. See id. at 659 n.

25; Geders v. United States, 425 U.S. 80 (1976)(attorney

barred by law from consulting with client during overnight

recess); Herring v. New York, 422 U.S. 853 (1975)(attorney

barred by law from giving summation at bench trial); Brooks v.

Tennessee, 406 U.S. 605 (1972)(requirement that defendant be

first defense witness); Powell v. Alabama, 287 U.S. 45

(1932)(counsel for defendant charged with capital offense

appointed on day of trial).

The admission of evidence of unadjudicated criminal

conduct, unlike the cases cited above, does not present

circumstances justifying a presumption of ineffective

assistance of counsel. After having obtained a guilty

verdict, the Commonwealth was burdened by statute with the

responsibility of proving beyond a reasonable doubt either

future dangerousness or vileness before the death penalty

could be imposed. As discussed above, the unadjudicated

criminal conduct was relevant to Walker's future

dangerousness, Walker had notice that such evidence would be

used, and he had the opportunity to cross-examine the

witnesses through whom the Commonwealth offered this evidence.

Accordingly, we find that admission of this evidence did

not violate Walker's due process or Sixth Amendment rights to

15
effective assistance of counsel and a meaningful opportunity

to defend himself.

VII. Admission of Evidence of Cartridge

During the guilt phase, Detective Curtis R. Mullins

testified that he received a cartridge from Steve Martin, who

was the property manager of the University Terrace Apartments

where the Beale murder occurred. Walker lived in an apartment

there with Karen Beech until some time after Beale's death.

Martin found the cartridge in the apartment following Walker

and Beech's departure and prior to the arrival of a new

tenant. A certificate of analysis introduced at trial

indicated that the cartridge came from the same firearm as

seven cartridge cases recovered at the scene of the Beale

murder.

At trial, Walker sought to exclude evidence regarding the

cartridge on the basis that it was found three to four months

after the murder. Walker argues on appeal that the trial

court erred in admitting Martin's testimony and the

certificate of analysis into evidence because it was "neither

relevant nor material, and its prejudicial effect far

outweighed any possible probative value it may have had."

Walker bases his relevancy argument on his view that the trial

court stated from the bench that the cartridge was not

relevant. He concludes, therefore, that the trial court

16
abused its discretion in admitting the cartridge into

evidence.

Viewed in context, however, the trial court's statement

reveals that what it found "irrelevant" was the effect of the

time gap between the murder and Martin's discovery of the

cartridge on the admissibility of the evidence concerning the

cartridge. Every fact, however remote or insignificant, that

tends to establish the probability or improbability of a fact

in issue, is factually relevant and admissible. Epperly v.

Commonwealth, 224 Va. 214, 230, 294 S.E.2d 882, 891 (1982).

The fact that a cartridge matching those in the Beale murder

was found in an apartment once occupied by the defendant tends

to implicate the defendant in that murder and is thus

relevant. As the trial court indicated, the four-month time

period between the murder and discovery of the cartridge may

affect the weight to be attached to the evidence, but it does

not render the cartridge irrelevant and thus inadmissible.

Evidence that is factually relevant must nevertheless be

excluded if its probative value is substantially outweighed by

the danger of unfair prejudice. See Coe v. Commonwealth, 231

Va. 83, 87, 340 S.E.2d 820, 823 (1986). The responsibility

for balancing the competing considerations of probative value

and prejudice rests in the sound discretion of the trial court

and will not be disturbed on appeal in the absence of a clear

17
abuse. Spencer, 240 Va. at 90, 393 S.E.2d at 617. Walker

does not identify any prejudice that arose from the admission

of the cartridge other than its tendency to show that Walker

killed Beale. Accordingly, we find that the trial court did

not err by admitting evidence related to the cartridge into

evidence.

VIII. Admission of Photographs

During both the guilt and sentencing phases of the

proceeding, the Commonwealth introduced photographs of the

crime scenes and autopsy photographs of Threat. Walker

asserts that the photographs were "a calculated attempt to

arouse the jurors's sympathies" and that because they were not

"substantially necessary" to the Commonwealth's case, the

trial court erred in admitting them into evidence. We

disagree.

Admission of photographs is within the discretion of the

trial court. Walton v. Commonwealth, 256 Va. 85, 91, 501

S.E.2d 134, 138 (1998). Photographs of crime scenes are

admissible to show motive, intent, method, malice,

premeditation, and atrociousness of the crime. Id. at 92, 501

S.E.2d at 138. Photographs which accurately depict the crime

scene are not rendered inadmissible simply because they are

gruesome or shocking. Id. There is no assertion that the

18
photographs here were not accurate representations of the

murder scenes.

The Commonwealth offered the crime scene photographs to

show the positioning of Beale's body and other incidents of

his murder and to show where items of evidence were found at

the Threat murder scene. Such photographs are relevant and

probative evidence for the jury to consider. Clagett v.

Commonwealth, 252 Va. 79, 87, 472 S.E.2d 263, 268 (1996),

cert. denied, 519 U.S. 1122 (1997); Goins, 251 Va. at 459, 470

S.E.2d at 126.

The autopsy photographs, introduced at the penalty phase

of the proceeding, showed the " stippling" near Threat's

wounds, indicating the close range at which Walker shot

Threat, and were relevant on the issue of whether Walker's

conduct was outrageously vile. Washington v. Commonwealth,

228 Va. 535, 551, 323 S.E.2d 577, 588 (1984), cert. denied,

471 U.S. 1111 (1985).

As discussed above, evidence that is logically relevant

must be excluded if its probative value is substantially

outweighed by its prejudicial effect. Coe, 231 Va. at 87, 340

S.E.2d at 823. This balancing is left to the sound discretion

of the trial court and will not be disturbed on appeal absent

clear abuse of discretion. Id. We have examined the

19
photographs and conclude that the trial court did not abuse

its discretion in admitting them into evidence.

IX. Toxicologist Evidence

Walker assigns error to the trial court's refusal to

admit into evidence the testimony and reports of a

toxicologist who found the presence of drugs in the systems of

both victims. Walker asserts that this evidence was relevant

because it "would be circumstantial evidence . . . of a

possible alternative motive for the killing by someone else."

We disagree.

Only evidence which bears upon and is pertinent to

matters in issue is relevant and should be admitted. Coe, 231

Va. at 87, 340 S.E.2d at 823. Evidence of collateral facts

and facts incapable of supporting an inference on the issue

are irrelevant and cannot be accepted into evidence. Id.

There is nothing in this record which supports Walker's theory

that the murders were drug-related, and evidence of the

presence of drugs in the victims' systems simply does not

support the inference that someone other than Walker committed

the crimes. Accordingly, the trial court did not abuse its

discretion in refusing to admit this evidence.

X. Testimony of Prison Conditions

During the penalty phase of the proceeding, Walker sought

to introduce the testimony of Gary Bass, Chief of Operations

20
for the Virginia Department of Corrections, regarding the

conditions of prison life, specifically life without parole in

a maximum security prison. Walker asserts that this evidence

was relevant and properly admissible because it would mitigate

against his receiving the death penalty, and therefore, the

trial court erred in refusing to admit it. However, we have

previously held that such testimony is not proper mitigating

evidence. Cherrix v. Commonwealth, 257 Va. 292, 309-10, 513

S.E.2d 642, ___ (1999).

XI. Sufficiency of the Evidence

A. Guilt Phase

Walker asserts that the trial court should have sustained

his motion to strike the Commonwealth's evidence made at the

close of the Commonwealth's case-in-chief because the evidence

was insufficient as a matter of law to convict Walker of the

offenses charged. Walker argues that the "sole" evidence

against him is the testimony of the eyewitnesses and that this

testimony is "inherently incredible." With regard to the

Beale murder, Walker argues that the ages of Bianca and

Tameria, thirteen and fourteen respectively, made their

testimony "suspect." Walker asserts that their credibility is

further undermined by the testimony of Christopher Miller, a

witness for the Commonwealth, who stated that the person he

saw with a gun at the apartment complex on the night of the

21
murder was not bald, in contradiction to the fact that Taylor

had described the shooter as being bald. With regard to the

murder of Threat, Walker claims that Noble's testimony should

be discounted because she told the investigating officer both

that she did not know the shooters and that one shooter was

named "Paul." Walker asserts that this inconsistency renders

Noble's testimony inherently incredible.

Walker's argument is based entirely on the issue of

witness credibility. The trier of fact is the sole judge of

the credibility of the witnesses, Davis v. Commonwealth, 230

Va. 201, 206, 335 S.E.2d 375, 379 (1985), unless, as a matter

of law, the testimony is inherently incredible, Rogers v.

Commonwealth, 183 Va. 190, 201-02, 31 S.E.2d 576, 580 (1944).

The jury in this case resolved the credibility issues

regarding the testimony of Bianca, Tameria, and Noble against

the position advanced by Walker. The ages of Bianca and

Tameria and the conflict in testimony regarding whether the

person seen was bald, while issues to be weighed by the fact

finder, do not support a finding that the testimony is

inherently incredible. Similarly, Noble's statements to the

investigating officer did not render her testimony inherently

incredible. Accordingly, we will not disturb the ruling of

the trial court denying Walker's motion to strike the

Commonwealth's evidence.

22
 B. Evidence of Aggravating Factors

Walker asserts that the Commonwealth failed to carry the

burden imposed upon it by Code § 19.2-264.4(C) to prove beyond

a reasonable doubt that he would be a continuing threat to

society, or that his conduct in committing the murders was

outrageously vile, horrible, or inhuman, in that it involved

depravity of mind or aggravated battery.

This argument is without merit. With regard to future

dangerousness, the Commonwealth introduced Walker's prior

convictions for carnal knowledge, forgery, assault, and

unauthorized use of a motor vehicle. The evidence also showed

that Walker regularly stole from friends and acquaintances

and, in a rage, had punched a pregnant woman in the stomach.

In addition, as the trial court noted in imposing sentence in

accordance with the jury's recommendation, the commission of

two brutal, unprovoked murders within a six month period is a

"strong indication . . . that [Walker] is prone towards

violence."

With regard to vileness, the Commonwealth's evidence

supports two of the alternative factors which can support a

finding of vileness — aggravated battery and depravity of

mind. See Goins, 251 Va. at 468, 470 S.E.2d at 131 (proof of

any one of these statutory components will support a finding

of vileness). Aggravated battery is a battery which

23
"qualitatively and quantitatively, is more culpable than the

minimum necessary to accomplish an act of murder." M. Smith

v. Commonwealth, 219 Va. 455, 478, 248 S.E.2d 135, 149 (1978),

cert. denied, 441 U.S. 967 (1979). In this case Beale was

shot three times, and any one of the shots could have been

fatal. Walker shot Threat seven times. These multiple

gunshots establish aggravated battery. Goins, 251 Va. at 468,

470 S.E.2d at 131.

Walker's actions established depravity of mind, that is,

a "degree of moral turpitude and psychical debasement

surpassing that inherent in the definition of ordinary legal

malice and premeditation." M. Smith, 219 Va. at 478, 248

S.E.2d at 149. Walker shot his victims in front of their

loved ones and family members, after having forcibly invaded

the sanctity of their homes. The evidence showed that the

killings were unprovoked, premeditated, and methodical.

Walker showed no mercy toward his victims or their loved ones.

Based on this evidence, we conclude that the Commonwealth

proved beyond a reasonable doubt that Walker would be a

continuing serious threat to society and that his conduct in

committing the murders was vile. Accordingly, the trial court

did not err in refusing to strike the Commonwealth's evidence

of the aggravating factors.

XII. Statutory Review

24
 Code § 17.1-313(C) requires this Court to consider

whether the sentence of death was imposed "under the influence

of passion, prejudice or any other arbitrary factor," and

whether such sentence is excessive or disproportionate to

penalties imposed in similar cases, "considering both the

crime and the defendant." Walker presents no arguments

asserting that his sentence resulted from passion or

prejudice, but relies on our statutorily mandated review of

this issue.

Our review of the record reveals nothing to suggest that

the sentence of death resulted from passion, prejudice or

arbitrariness. As we have said, the record supports the

findings of guilt and of the aggravating factors, and there is

nothing to suggest that Walker's sentence of death was imposed

because of any arbitrary factor.

Walker also relies on the review we must undertake to

determine whether the sentence imposed in this case is

excessive or disproportionate to other sentences imposed by

sentencing bodies in this Commonwealth for similar crimes.

This is the first case we have considered in which the death

penalty had been imposed for the willful, deliberate, and

premeditated killing of more than one person within a three-

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year period. Code § 18.2-31(8). * The General Assembly

classified this conduct as capital murder in 1996. Acts 1996,

ch. 959. However, the lack of directly comparable crimes does

not prevent our consideration of whether the sentence imposed

in this case was disproportionate under the review mandated by

Code § 17.1-313(C)(2). If it did, as we observed in Stewart

v. Commonwealth, 245 Va. 222, 248, 427 S.E.2d 394, 410, cert.

denied, 510 U.S. 848 (1993), then "a death sentence could

never be imposed where there are no previous cases similar to

the one at bar."

After reviewing the incidents of this crime and the

circumstances of this defendant, we conclude that the sentence

of death was not disproportionate to other sentences imposed

in this Commonwealth for similar crimes. There are a number

of incidents of this capital murder which are comparable to

the facts surrounding other cases in which the death penalty

has been imposed.

First, Walker invaded the homes of both of his victims

and shot them in front of family members or a loved one.

Juries have imposed the death penalty for the murder of

victims in their homes and in the presence of another family

*
The defendant in Walton v. Commonwealth, 256 Va. 85, 501
S.E.2d 134 (1998), was convicted of four charges of capital
murder. One of those convictions was pursuant to Code § 18.2-

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member. See Goins, 251 Va. 442, 470 S.E.2d 114; Burket v.

Commonwealth, 248 Va. 596, 450 S.E.2d 124 (1994), cert.

denied, 514 U.S. 1053 (1995); Stewart v. Commonwealth, 245 Va.

222, 427 S.E.2d 394; Davidson v. Commonwealth, 244 Va. 129,

419 S.E.2d 656, cert. denied, 506 U.S. 959 (1992).

Second, as with Stewart, Goins and Burket above, the jury

in this case found upon sufficient evidence that Walker's

conduct in committing these murders was outrageously or

wantonly vile, and that Walker posed a continuing serious

threat to society.

Third, the jury found upon sufficient evidence that

Walker committed the willful, deliberate, premeditated killing

of multiple persons. Juries have in the past, based on the

predicate of future dangerousness and vileness, imposed the

death sentence upon perpetrators of multiple homicides within

a brief time period under Code § 18.2-31(7), which makes it a

capital crime to murder more than one person in the same

transaction. See Goins, 251 Va. 442, 470 S.E.2d 114; Burket,

248 Va. 596, 450 S.E.2d 124; Stewart, 245 Va. 222, 427 S.E.2d

394.

In the instant case, the separation of time between the

murders arguably evidences an even greater disregard for human

31(8); however, the trial court dismissed the charge after
sentencing on the other three convictions.

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life. The second murder in this case did not occur because

that victim was located proximately to the first, as in some

single transaction murders. Here, Walker engaged in distinct

complete acts of willful, deliberate, and premeditated murder.

The serial nature of his criminal conduct is no less egregious

because it was not performed as part of a single transaction.

Finally, the evidence Walker offered in mitigation during

the sentencing phase, when compared to the evidence of his

prior history and circumstances of this crime, does not

distinguish him from defendants who have been sentenced to

death in past cases.

Based upon this review, we find that the sentence of

death in this case is neither excessive nor disproportionate

to sentences imposed by sentencing bodies in this Commonwealth

for similar crimes. Consequently, we hold that the trial

court committed no reversible error and, based on our

independent review of the record, conclude that the sentence

of death was properly imposed. Thus, we will affirm the trial

court's judgment concerning Walker's conviction and sentence

for capital murder. We will also affirm the trial court's

judgment concerning Walker's convictions and sentences for

burglary and use of a firearm.

Record No. 990096 — Affirmed.
Record No. 990097 — Affirmed.

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