Teleguz v. Com.

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