Juniper v. Com.

PRESENT: Hassell, C.J., Lacy, Koontz, Kinser, Lemons, and Agee,
JJ., and Compton, S.J.

ANTHONY BERNARD JUNIPER
OPINION BY
v. Record Nos. 051423 and 051424 JUSTICE G. STEVEN AGEE
March 3, 2006
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Everett A. Martin, Jr., Judge

In these consolidated appeals, we consider the four capital

murder convictions and death sentences imposed upon Anthony

Bernard Juniper by the Circuit Court of the City of Norfolk,

along with his convictions for statutory burglary and use of a

firearm during the commission of a felony.

In the first stage of a bifurcated trial conducted under

Code § 19.2-264.3, a jury convicted Juniper of capital murder

for each of the four killings, statutory burglary while armed

with a deadly weapon, and four counts of use of a firearm in the

commission of a felony. In the penalty phase of the trial the

jury “found unanimously and beyond a reasonable doubt” that

Juniper “would commit criminal acts of violence that would

constitute a continuing serious threat to society” and that his

conduct in committing the offenses involved either “depravity of

mind and/or aggravated battery to the victim beyond the minimum

necessary to accomplish the act of murder.”1 The jury fixed

1
The jury found both depravity of mind and aggravated
battery in three of the murders (Keshia Stephens, Rueben
Juniper’s punishment at death for each capital murder

conviction, life imprisonment for statutory burglary while armed

with a deadly weapon, and one three-year and three five-year

terms for the convictions for use of a firearm in the commission

of a felony. After reviewing the post-sentence report required

by Code § 19.2-264.5, the trial court sentenced Juniper in

accordance with the jury verdicts.

Juniper appealed his convictions for the crimes other than

capital murder to the Court of Appeals. We certified that

appeal (Record No.051424) to this Court under the provisions of

Code § 17.1-409 for consolidation with the appeal of Juniper’s

capital murder convictions (Record No. 051423) and the review of

his death sentence mandated by Code § 17.1-313(A).

After consideration of Juniper’s assignments of error, the

record, the arguments of counsel, and the review required by

Code § 17.1-313, we find no error in the judgment of the trial

court and will affirm that judgment, including the sentences of

death.

I. FACTS AND MATERIAL PROCEEDINGS BELOW

Under well-settled principles of appellate review, we

consider the evidence presented at trial in the light most

favorable to the Commonwealth, the prevailing party in the trial

Harrison, III, and Shearyia Stephens), but only depravity of
mind in the fourth murder (Nykia Stephens).

2
court.2 Burns v. Commonwealth, 261 Va. 307, 313, 541 S.E.2d 872,

877, cert. denied, 534 U.S. 1043 (2001); see also Lovitt v.

Commonwealth, 260 Va. 497, 502, 537 S.E.2d 866, 870 (2000),

cert. denied, 534 U.S. 815 (2001).

A. GUILT PHASE

On the afternoon of January 16, 2004, Keshia Stephens, her

younger brother Rueben Harrison, III,3 and two of Keshia’s

daughters, Nykia Stephens and Shearyia Stephens,4 were killed in

Keshia’s apartment in the City of Norfolk. When police arrived,

they found that the door to Keshia’s apartment had been forcibly

opened. All four victims were discovered in the master bedroom;

each had died as a result of gunshot wounds.

Keshia was stabbed through her abdomen, shot three times,

and grazed by a fourth bullet. One bullet went through her

intestine, kidney, and spine, causing spinal shock and leg

paralysis. Another bullet also passed through her intestines

and then proceeded to her abdominal aorta and inferior vena

cava, causing extensive bleeding.

The stab wound did not fatally wound Keshia, but tore

through the muscle of her abdominal wall. There was a great

2
Juniper did not present any evidence during the guilt
phase of the trial, with the result that all of the evidence
came from the Commonwealth’s witnesses.
3
The record contains several different spellings of Rueben
Harrison, III’s first name. We will spell his name “Rueben,”
consistent with the indictment.

3
deal of blood accompanying the wound, however, which led the

medical examiner performing the autopsy to conclude that the

stab wound was probably the first injury inflicted on Keshia.

The stab wound was consistent with a wound that would have been

caused by the knife blade found at the scene of the crime.

Two-year old Shearyia was shot four times while in her

mother’s arms. Two bullets entered Shearyia’s body in the shin

of her left leg, fractured the bone, and exited through her

calf. A third bullet entered and exited Shearyia’s body through

her thigh. The fourth bullet entered the crown of her head and

passed through her brain, causing bone fragments to chip off.

Rueben Harrison was shot three times. One bullet struck

his pelvic bone, and ricocheted through his body into his

abdomen, liver, heart and lung, finally coming to rest in his

armpit. A second bullet hit his hip bone, and exited through

the front of his leg. A third bullet broke his femur bone, and

exited his body at his front thigh. The medical examiner

testified that the broken bones would have caused excruciating

pain and immediately disabled Rueben.

Four-year old Nykia was shot one time behind her left ear.

The bullet moved through her skull and cerebellum to the base of

her skull, into her esophagus and trachea, causing substantial

damage and bleeding, before exiting her chest. The medical

4
Shearyia Stephens was also known as Sheryia Benns.

4
examiner testified that the bullet’s path was consistent with

Nykia ducking her head and body toward the shooter prior to

being shot. In addition, the presence of blood in Nykia’s lungs

indicated that she had taken one or two breaths between being

shot and dying. Her body was found lying on top of her uncle’s

body.

Evidence presented at trial showed that Juniper and Keshia

had been involved in an on-again, off-again tumultuous

relationship for approximately two years. On the morning of the

shootings, Juniper telephoned his friend, Renee Rashid, from his

mother’s house where he was living at the time. Juniper asked

Rashid to drive him to Keshia’s apartment so that he could

retrieve some of his belongings. A short time later Rashid

picked up Juniper at his mother’s house and drove him to

Keshia’s apartment.

Both Juniper and Rashid entered Keshia’s apartment, which

was on the second floor of the apartment building. Rashid saw

four individuals in the apartment: Keshia, Rueben, who was

asleep on the couch, and two of Keshia’s children, Nykia and

Shearyia, who were preparing to take a bath. After helping

Juniper disconnect a DVD player, Rashid was talking to the two

girls, but overheard Juniper and Keshia arguing in another room.

Keshia repeatedly made comments such as, “[T]here’s nobody but

you. I told you I’m not seeing anybody but you.”

5
 After Rashid announced that she was leaving, Juniper

followed her to the door of the apartment. Hearing the door

shut, Rashid assumed Juniper was behind her as she began to

descend the apartment building steps. But as she was going down

the stairway outside Keshia’s apartment, Rashid heard a “loud

boom” that she described as “sound[ing] like the door being

kicked in.” Not stopping to look behind her, Rashid hurried to

her car. While waiting in her car outside the apartment, Rashid

heard Keshia crying and repeating her statement that she was not

seeing anyone but Juniper. Rashid sounded her horn to alert

Juniper that she wanted to leave. Juniper yelled at Rashid to

“Go ahead” so she began to drive away. As she drove away from

the apartment she heard four “booms,” which she described as

“sound[ing] like gunshots.”

Rashid did not stop, but proceeded to Juniper’s mother’s

house, and expressed her concern that Juniper had remained at

Keshia’s apartment. Juniper’s friend, Keon Murray, was there

when Rashid arrived. Juniper called his mother’s house and

Murray talked to him on the telephone. Murray observed that

Juniper was calling from Keshia’s apartment because the Caller

ID number matched Keshia’s telephone number. Juniper told

Murray that “They gone,” and that Keshia’s apartment was

surrounded. He also stated that he “killed them,” although he

did not name particular individuals.

6
 Murray then called Tyrone Mings, a friend who lived near

Keshia’s apartment building, and asked him to check Keshia’s

apartment. Mings walked to the apartment and observed that the

front door appeared to have been kicked in. Upon entering

Keshia’s apartment, Mings testified that he saw Juniper standing

in the living room with a white substance on his face and

holding an automatic pistol. When Mings asked Juniper about

Keshia, Juniper directed Mings to the back of the apartment.

Upon entering the master bedroom, Mings saw Rueben and a young

girl lying on the bed. Mings did not see Keshia and asked

Juniper where she was. Juniper told Mings she was “between the

bed and the dresser.” Mings returned to the bedroom and called

to the people in the room, but no one answered. Mings departed

Keshia’s apartment, leaving Juniper in the living room, still

holding the pistol. Upon returning to his apartment, Mings

called the police.

In the meantime, Rashid and Murray picked up Juniper’s

cousin (“Little John”) and drove to Keshia’s apartment. Murray

and Little John went to look for Juniper, while Rashid stayed in

the car. They returned to the car with Juniper, who sat in the

front passenger seat next to Rashid, the driver. Rashid

described Juniper as being “jittery” and “breathing real hard.”

Juniper kept looking in the mirrors, saying, “they’re behind us”

throughout the car ride. Murray stated that Juniper “look[ed]

7
nervous,” “[l]ike he was in shock,” and that he had a powdery

substance like cocaine on his face. Juniper held a black and

chrome automatic pistol in his right hand, resting on his lap.

The police first arrived at Keshia’s apartment complex at

12:50 p.m., after receiving a telephone call reporting possible

gunshots. The responding officer walked around the apartment

building and spoke with two residents, but did not go up the

stairway to Keshia’s apartment. After conferring with a second

police officer who had arrived on scene, both officers left the

apartment complex believing the call to have been a false

report.

Mings observed the officers leave and called the police a

second time. Near 2:20 p.m. police officers again arrived at

the apartment complex and this time went up the stairway to

Keshia’s apartment. Officer W.G. Snyder testified the “whole

center part of the door was completely knocked . . . inward into

the apartment, and wooden debris from the door was lying inside

the apartment.” The officers entered the apartment, and

observed Nykia’s body lying across Rueben on the bed in the

master bedroom. They then observed Shearyia’s body lying across

Keshia’s body on the floor beside the bed. The officers

received no response from any of them.

Police investigators recovered a cigarette butt from the

floor by the front door of Keshia’s apartment. From the master

8
bedroom where the bodies were located, investigators recovered a

knife blade, a knife handle, and shell casings. Shell casings

were also found in a bathroom adjoining the master bedroom.

A firearm and toolmark examinations expert testified that

bullet casings found in the apartment and the bullets recovered

from the victims’ bodies were fired from a single nine-

millimeter, Luger semi-automatic pistol.5 The expert also

analyzed the recovered knife blade and knife handle and

determined that the blade and handle were originally joined.

A latent fingerprint expert testified a fingerprint found

on the knife blade had “a minimum of 23 matching

characteristics” to Juniper’s right thumbprint. In addition, an

expert in forensic serology and DNA analysis testified that

Juniper’s DNA profile matched DNA from the knife handle6 and the

cigarette butt.7

The police obtained warrants for Juniper’s arrest and he

surrendered voluntarily on January 26, 2005. While incarcerated

at the Hampton Roads Regional Jail awaiting trial, Juniper

5
The firearm was never recovered.
6
Sixteen loci from the knife handle matched Juniper’s DNA
profile. The DNA expert testified that Juniper could not be
excluded as the source of the DNA, with the odds of another
individual having a matching DNA profile being one in greater
than six billion individuals, the population of the world.
7
Fifteen loci matched Juniper’s profile from the DNA on the
cigarette butt; again, the DNA expert testified that Juniper
could not be excluded as the source of the DNA, with the odds of

9
admitted to a fellow inmate, Ernest Smith, that he committed the

murders. Smith testified that while the two were together in

the medical pod at the Hampton Roads Regional Jail, Juniper

confessed to shooting the four victims. Smith testified that

Juniper told him that he had killed the children because “he

didn’t want to leave any witnesses at the scene of the crime.”

B. PENALTY PHASE

During the penalty phase, the Commonwealth introduced

evidence of Juniper’s criminal record, which contained

convictions for grand larceny, possession of cocaine, possession

of marijuana, threatening to kill, disorderly conduct, failure

to appear, and numerous motor vehicle violations. The

Commonwealth contended its evidence proved the aggravating

factors of both future dangerousness and vileness.

The Commonwealth also introduced evidence of Juniper’s

violent behavior and unadjudicated criminal conduct. Several of

another individual having a matching DNA profile being one in
greater than six billion individuals.

10
the Commonwealth’s witnesses testified about Juniper’s

tumultuous and abusive relationship with Keshia. Ruqayyah

Barnes described an incident that occurred at a night club in

August 2003. She was present when Juniper accused Keshia of

“some guy looking at her, and so he started getting mad and

calling her names. He told her, ‘Bitch, get over here right now

before I whoop your ass,’ and said, ‘That guy looking at you.’ ”

Ruqayyah testified that Juniper was “screaming” these things to

Keshia and “standing right in front of her face.” According to

her testimony, Juniper yelled at Keshia because “[t]hat nigger

over there looking at you.” And accused Keshia of “f**king with

him.”

Ruqayyah also testified about an event in September 2003.

She and Keshia returned from shopping when Juniper began

fighting with Keshia. He complained that Keshia and Ruqayyah

were

taking too long and [Keshia] don’t do s**t for no kids. He
do everything. He feed them. He do their hair. He buy
their clothes. He do everything. They’re his kids. . . .
And then he pulled her by her hair and start screaming in
her face about us being gone at the mall too long. Then he
punched her in her face. She fell down on the floor. She
slid back in the hallway into the kitchen.

Ruqayyah clarified that Juniper “just grabbed [Keshia’s] hair

and yanked it real hard and she came closer to him.” When

Juniper punched Keshia, he did so “with a closed fist . . .

right in her eye.”

11
 Ruqayyah’s sister, Malika T. Barnes, testified that in the

spring of 2003, she witnessed Juniper trying to get Keshia’s

attention, and when Keshia did not respond to her name, he said,

“ ‘B, I know you heard me calling you,’ ” before “calling her a

whole bunch of names.” When Keshia sat down in the room where

Malika and Juniper were located, Juniper “told [Keshia] to go

back in the room.” When Keshia did not leave, Juniper “grabbed

her by her arm and got her, and guid[ed] her toward the room.”

Malika also described an incident that occurred at the food

store where Keshia worked. Before Malika entered the store,

Juniper told her that Keshia was cheating on him. Juniper

followed Malika into the store and “told Keshia to go to the

back to get something, and she didn’t move fast enough to get

it.” So Juniper pulled Keshia’s arm as he “fuss[ed] and

holler[ed] as usual.”

In the summer of 2003, Malika witnessed Juniper “grabb[ing]

Keshia’s arm.” In clarifying what she saw, Malika stated that

Juniper grabbed Keshia “[f]orcefully” and “grabbed her arm to

direct her toward him.” When Malika confronted Juniper for

acting that way, Malika testified that Juniper responded,

“ ‘That’s my bitch.’ ‘That’s my hoe.’ ‘When I tell my bitch to

come here, that’s what I want her to do.’ ” He then threatened

to “f**k all [you] bitches up.”

12
 The assistant manager of the food store where Keshia worked

recounted several verbal and physical altercations between

Juniper and Keshia. In January 2003, the assistant manager

observed Juniper approach Keshia after she smiled at a customer.

She testified that Juniper had told Keshia that he would “smack

the s**t out [of] you, bitch, for smiling at the customer that

went out.”

The manager also described an incident she observed between

Keshia and Juniper in the spring of 2003. According to her

testimony, Juniper

punched [Keshia] in her face, and her wig came off. She
picked her wig back up and put it on. By that time I was
getting out [of] the car. Keshia ran in the [food store],
and I unlocked the office. And I took her in the office,
and I told her that he had to leave the premises or I was
going to call the police. After that he was barred from
the store.

The manager confirmed that by “punch” she meant that Juniper’s

“right hand [was] balled up into a fist with [his] fingers

curled into [his] palm.”

In June 2003, police responded to a domestic dispute

between Juniper and Keshia. Juniper admitted to “slap[ping]”

duct tape on Keshia’s arm, mouth, and head in order to “keep her

quiet,” and confirmed that he had “done that before.” Juniper

was charged with abduction as a result of this incident, but the

charges were not prosecuted because Keshia failed to appear in

court.

13
 Other witnesses described Juniper’s conduct while

incarcerated. A deputy in the Norfolk Sheriff’s Department

testified that when she informed Juniper that he did not have

any mail that day, he responded by calling her “a cracker ass

whore” and telling her to “Walk away, you f**kin’ bitch. Carry

your ass away, you f**kin’ bitch.”

During a search of Juniper and his jail cell in April 2004,

corrections officers found a large paper clip concealed under

Juniper’s tongue. Possession of the paper clip was prohibited

contraband because it could be used as a weapon or handcuff key.

In October 2004, Juniper attacked a sleeping inmate with a

pillowcase containing dominoes and kicked the inmate in the

ribs. Juniper left the scene of the attack when challenged by

another inmate and ran into an elderly inmate’s cell, whereupon

he took the footrest from the inmate’s wheelchair. Juniper then

confronted the other inmates with the wheelchair footrest,

threatening, “I kill you.” It required several officers fifteen

to twenty minutes to stop Juniper’s attack.

Juniper offered evidence in mitigation including testimony

from his older sister regarding the physical abuse that he

suffered as a child from his stepfather, who sold drugs from the

home where Juniper lived. Juniper never met his actual father

until he was 23 years old, and had no male role models growing

up except his maternal grandfather. Juniper’s sister and aunt

14
testified that Juniper had a close relationship with his

maternal grandfather and was greatly affected by the

grandfather’s death when Juniper was a youth. Witnesses also

testified about Juniper’s generosity and caring relationship

with several young children, including Keshia’s children.

Dr. Thomas Pasquale, a clinical psychologist appointed to

assist Juniper by performing a psychological assessment,

testified as to his findings. He found significant problems

with Juniper's family of origin including the lack of a

"consistent father figure" and a "withdrawn" and "emotionally

absent" mother. These inadequate relationships in addition to

physical abuse caused Juniper to "fe[el] abandoned," have

"difficult[y] trust[ing] people" and conclude that "if you're

not in control, then you're likely to be harmed."

Dr. Pasquale found that Juniper had an average I.Q. and was

not a psychopath, but he determined that Juniper had "features

of a characterological dysfunction, personality disorder which

demonstrated a failure to adapt [and] develop." Dr. Pasquale

listed the characteristics of this personality disorder for the

jury:

Antisocial thought and behavioral patterns,
difficulties with impulsivity, reliance on the more
primitive defense mechanisms of denial and blame, an
easily compromised conscience, problems with anger,
mood instability, alcohol and drug abuse, and chronic
difficulties with the legal system.

15
Dr. Pasquale diagnosed Juniper with depression, alcohol, cocaine

and marijuana dependence, and antisocial personality disorder.

II. ANALYSIS

A. PRELIMINARY ISSUES

Juniper presents 33 assignments of error in this appeal.8

We will initially dispose of those assignments of error that

were not adequately preserved for appeal and therefore will not

be considered.

1. ASSIGNMENTS OF ERROR WAIVED, DEFAULTED, OR ABANDONED

a. Motion for Forensic Expert

Juniper contends "[t]he trial court erred in failing to

entertain and rule upon Juniper's filed Motion for a Forensic

Expert." The record contains no such motion, although Juniper

filed a document styled Memorandum in Support of Motion for

Appointment of Forensic Expert. Juniper cites only the

Memorandum in his argument on this assignment of error. The

trial court never ruled on Juniper's request for a forensics

expert, but the record reflects no request for a ruling or that

the trial court was ever alerted to the existence of the

Memorandum. Therefore, Juniper has waived any claim under this

assignment of error because he was required to request a ruling

from the trial court and he failed to do so. Lenz v.

16
Commonwealth, 261 Va. 451, 463, 544 S.E.2d 299, 306, cert.

denied, 534 U.S. 1003 (2001) (failure to request ruling on

pretrial motion waived issue on appeal); Riner v. Commonwealth,

268 Va. 296, 323-25, 601 S.E.2d 555, 571-72 (2004) (failure to

alert trial court to fact that it had ruled only on

admissibility of primary hearsay in statement waived defendant's

argument on appeal that the statement was inadmissible as second

level hearsay).

b. Motion for Change of Venue

Juniper assigns error to the trial court's "denying" his

motion for a change of venue and argues the trial court abused

its discretion in doing so. The Commonwealth responds that

Juniper waived this argument on appeal because he failed to

renew the motion prior to trial.

In a pretrial motion for a change of venue Juniper's

counsel stated, "We make [the motion] at this time anticipating

that the Court is going to take it under advisement. We will

continue to make it as we . . . believe that the potential juror

pool is tainted by [media] coverage." The trial court took the

motion under advisement, but Juniper never renewed the motion

before the jury was empanelled.

8
Juniper filed 34 separate assignments of error, but in his
brief to this Court he withdrew Assignment of Error No. 4.
Therefore, it will not be considered on appeal.

17
 [W]hen a change of venue motion is taken under
advisement or continued until the jury is empaneled,
it is incumbent on the party seeking a change of venue
to renew the motion or otherwise bring it to the
court's attention. Failure to do so implies
acquiescence in the jury panel and is tantamount to
waiver of the motion for change of venue.

Jackson v. Commonwealth, 266 Va. 423, 430-431, 587 S.E.2d 532,

539 (2003), cert. denied, 543 U.S. 842 (2004) (citation

omitted).

Accordingly, Juniper has waived any claim under this

assignment of error because he was required to timely renew the

motion or bring the matter to the attention of the trial court,

which he failed to do. See id.; Green v. Commonwealth, 266 Va.

81, 94-95, 580 S.E.2d 834, 842 (2003), cert. denied, 540 U.S.

1194 (2004).

c. Motions to Produce Files

In separate assignments of error, Juniper argues the trial

court erred in refusing to compel the Commonwealth to produce

its files from his prior criminal convictions and of

unadjudicated bad acts that would be referenced in the penalty

phase. He also claims an entitlement to the files related to a

prior prosecution of Rueben for rape.

On appeal, Juniper argues the prior criminal conviction and

unadjudicated bad acts files should have been produced because

"to thoroughly investigate and to essentially reconstruct those

35 . . . events was unduly burdensome, if not impossible." As

18
to Rueben’s files, Juniper's appellate argument is the "files

cannot be reasonably recreated . . . and . . . his

constitutional rights were violated by the failure to compel the

file." Neither argument was made to the trial court.

At trial, Juniper made the same argument as the basis to

grant both motions:

Although the Defendant has an investigator available
to him, the time to interview all the witnesses that
would be essential to reconstructing the information
contained in those files cannot [be] reasonably
ascertained by the Defendant without extensive costs
to the Commonwealth in the form of attorneys fees
and/or investigator fees.

This ground was reemphasized by defense counsel's oral argument

that "it would be more economical for the Commonwealth if they

would provide us with the files rather than having [defense

counsel or the court-appointed investigator] have to try to

reconstruct each of those separate 35 events." In other words,

Juniper's sole contention at trial for both motions is that

granting the motions would save the Commonwealth money.9 This is

obviously not the argument Juniper makes on appeal; therefore,

consideration of either assignment of error is barred under Rule

5:25. See Buck v. Commonwealth, 247 Va. 449, 452-53, 443 S.E.2d

414, 416 (1994). Furthermore, Juniper proffered no evidence or

9
Juniper has never contended that the Commonwealth failed
to disclose any exculpatory evidence contained in any of the
files that were the subject of the motions.

19
explanation as to any nexus between Rueben’s rape conviction and

any matter at issue in this case.

d. Using “Exceedingly Difficult” Instead of “Substantially
Impair” During Voir Dire

Juniper also claims the trial court erred “by changing the

standard death penalty voir dire partially through jury

selection by using the phrase ‘exceedingly difficult’ instead of

‘substantially impair.’

Part of the way through voir dire of the potential venire,

the trial judge stated, “When I ask these questions[,] instead

of using [‘substantially impair,’] I’m going to start [using the

term] [‘exceedingly difficult.’] I think substantially impaired

– I think it’s a legal term [and] I’m not sure the jurors

understand what I’m talking about when I say that.” Juniper’s

counsel responded, “We don’t quarrel with that but the case law

does use substantially impair.” The trial judge then noted, “If

you-all want to use it in your questions that’s fine, but I’ve

just noticed when I’m asking the question their eyes seem to

glaze over when I start saying things like that.” Juniper’s

counsel replied, “That’s fine.”

This exchange clearly shows that Juniper’s counsel not only

did not object to the trial court’s decision to alter the voir

dire language, but acquiesced to it. Consequently, Juniper has

waived any right to appeal on this issue under Rule 5:25.

20
 e. Grant of Immunity to Keon Murray

Juniper argues the trial court erred in "allowing the

Commonwealth to grant immunity to witness Keon Murray with no

notice, contrary to the law, and due process rights of

[Juniper]."

Keon Murray testified for the Commonwealth. At the

beginning of his testimony, he agreed that no "promises [had]

been made to [him] by the Commonwealth in exchange for [his

testimony]." Murray testified that he was close to Juniper and

his family and knew Keshia. When questioned about the events on

the day of the murders, Murray answered, "Your Honor, I plead

the Fifth." The trial court called a recess and outside of the

presence of the jury, the Commonwealth stated its intention to

offer Murray immunity.10 Defense counsel stated his objection as

follows:

I object to the procedure . . . on behalf of
defendant, Mr. Juniper.

. . . .

The question is whether or not this procedure
denies the defendant due process of the law.

. . . .

[T]hreatening [Murray] about his testimony is a
denial of due process to Mr. Juniper. That's the best
argument I can make.

10
The Commonwealth determined Murray could incriminate
himself as an accessory after the fact or give information that
could lead to a charge of misprision of a felony offense.

21
 On appeal, Juniper argues the grant of immunity was an

abuse of discretion because it prevented effective cross-

examination of Murray in violation of Juniper's due process

rights under the Sixth Amendment. Specifically, Juniper

contends that "since the grant of immunity was

contemporaneous with the witness's testimony," the defense

lacked "[t]he pre-trial preparation and reflection

required" to allow a full and fair examination of Murray.

In response, the Commonwealth essentially argues that

Juniper has waived this due process argument because he failed

to assert a violation of the Sixth Amendment Confrontation

Clause in the trial court. We agree with the Commonwealth

because the record reflects Juniper never argued to the trial

court the Confrontation Clause claims he now makes on appeal as

the basis of his due process argument.

As he acknowledges on appeal, Juniper's argument that the

trial court's decision undermined his ability to cross-examine

Murray, is actually a claim under the Sixth Amendment

Confrontation Clause. As such, a general assertion of a due

process violation in the trial court is insufficient to preserve

this argument for appeal. See Albright v. Oliver, 510 U.S. 266,

273 (1994). Therefore, Juniper has waived this assignment of

error under Rule 5:25.

f. Penalty phase jury instructions and verdict forms

22
 Juniper assigns error to the trial court “allowing

instructions and verdict forms in the penalty phase regarding

future dangerousness when the predicates were not proven and

that unanimity is required to prove an aggravating factor for

death.”

On brief, Juniper argues only that the trial court was

wrong in “refusing Instruction D-P8.”11 The Commonwealth

contends that Juniper waived the argument regarding instruction

D-P8 because the record does not indicate that Juniper ever

submitted the instruction to the trial court, nor does Juniper

mention the instruction during his arguments and objections

regarding other refused jury instructions.

The record supports the Commonwealth’s claims. The only

mention of instruction D-P8 in the record appears in the text of

11
Instruction No. D-P8 states:
Part A
If you can possibly reach a unanimous verdict, it is
your duty to do so. You should listen to the views and
opinions of your fellow jurors and give consideration to
what they say. However, you should reach an agreement only
if that can be done without sacrificing your individual
judgment. During your deliberations each of you should not
hesitate to re-examine your own views and change your
opinion if you are convinced it was wrong. No juror,
however, should give up his or her honest opinion solely
because of the opinions of other jurors or for the mere
purpose of returning a unanimous verdict.
Part B
In the event you cannot agree as to the sentence, the
court will dismiss you and impose a sentence of
imprisonment for life. That life sentence will be a life
sentence without the possibility of parole.

23
the instruction and Juniper’s Memorandum in Support of

Instruction No. D-P8, which is dated January 13, 2005. Because

the record does not show that the trial court ruled on

Instruction D-P8 or that Juniper requested a ruling or objected

to a ruling made, even if the assignment of error had

corresponded to Juniper’s arguments regarding Instruction No. D-

P8, this Court would not consider the merits of the claim. See

Lenz, 261 Va. at 463, 544 S.E.2d at 306.

2. ISSUES PREVIOUSLY DECIDED

Included in Juniper’s assignments of error are arguments

this Court has previously rejected on several occasions.

Finding no reason to modify or revisit our expressed views on

these issues, we adhere to our previous holdings and reject the

following contentions.

a. The Constitutionality of Virginia’s Capital Murder and
Death Penalty Statutes

Juniper challenges the constitutionality of Virginia’s

capital murder and death penalty statutes, but cites only Code

§ 19.2-264.4 and § 19.2-264.5. All of the arguments Juniper

posits in support of his assignment of error have been

previously considered and rejected by this Court:

(1) The terms “future dangerousness” and “vileness” are
unconstitutionally vague, failing to provide the
sentencer with meaningful instruction to avoid the
arbitrary and capricious infliction of a death
sentence. Rejected in Beck v. Commonwealth, 253 Va.
373, 387, 484 S.E.2d 898, 907, cert. denied, 522 U.S.

24
1018 (1997) (“vileness”); Mickens v. Commonwealth, 247
Va. 395, 403, 442 S.E.2d 678, 684, (“vileness” and
“future dangerousness”), vacated and remanded on other
grounds, 513 U.S. 922 (1994); see also Jackson v.
Commonwealth, 267 Va. 178, 205-06, 590 S.E.2d 520,
535-36, cert. denied, 543 U.S 891 (2004) (“future
dangerousness”); Wolfe v. Commonwealth, 265 Va. 193,
208, 576 S.E.2d 471, 480, cert. denied, 540 U.S. 1019
(2003) (“vileness” and “future dangerousness”).

(1) The statutes impose unconstitutional barriers to
a jury’s consideration of mitigation evidence.
Rejected in Watkins v. Commonwealth, 229 Va. 469,
490-91, 331 S.E.2d 422, 438 (1985), cert. denied,
475 U.S. 1099 (1986); see also Swann v.
Commonwealth, 247 Va. 222, 228, 441 S.E.2d 195,
200, cert. denied, 513 U.S. 889 (1994).

(2) The statutes are unconstitutional because they
permit a sentencer to find future dangerousness
based upon unadjudicated criminal conduct.
Rejected in Stockton v. Commonwealth, 241 Va.
192, 209-10, 402 S.E.2d 196, 206, cert. denied,
502 U.S. 902 (1991); see also Jackson, 267 Va. at
206, 590 S.E.2d at 536.

(3) The statutes permit consideration of a post-
sentence report that may infringe upon
defendant’s right to due process, to confront
accusers, to be free from cruel and unusual
punishment, and to effective assistance of
counsel because the report may contain hearsay
and permits the death sentence despite a showing
of good cause that a life sentence is just and
appropriate. 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); Breard v.
Commonwealth, 248 Va. 68, 76, 445 S.E.2d 670,
675-76, cert. denied, 513 U.S. 971 (1994) (“good
cause” for life sentence); see also Jackson, 267
Va. at 206, 590 S.E.2d at 536 (rejecting both
arguments).

(2) The statutes deny individuals sentenced to death
from meaningful appellate review. Rejected in
Smith v. Commonwealth, 239 Va. 243, 253, 389
S.E.2d 871, 876 (1990), cert. denied, 498 U.S.

25
 881 (1990); see also Stockton, 241 Va. at 215-16,
402 S.E.2d at 210.

b. Denial of Motion for a Bill of Particulars – Penalty Phase

Juniper assigns error to the trial court’s denial of his

Motion for a Bill of Particulars to require the Commonwealth to

describe the theory it intended to rely upon to prove the

“vileness” factor at sentencing under Code § 19.2-264.2 and

19.2-264.4(C). But we have repeatedly held that the

Commonwealth need only allege the elements of capital murder set

forth in Code § 18.2-31 without providing the accused with

notice of additional allegations or a bill of particulars

regarding aggravating factors. See, e.g., Muhammad v.

Commonwealth, 269 Va. 451, 493-94, 619 S.E.2d 16, 40 (2005)

(“[I]n Virginia, if the indictment gives a defendant sufficient

notice of the nature and character of the offense charged so he

can make his defense, no bill of particulars is required . . . .

[A]ggravating factors are not constitutionally required to be

recited in a capital murder indictment.” (citations omitted));

see also Swisher v. Commonwealth, 256 Va. 471, 480-81, 506

S.E.2d 763, 768 (1998), cert. denied, 528 U.S. 812 (1999).

The trial court thus did not abuse its discretion in

denying Juniper’s motion for a bill of particulars. See

Quesinberry v. Commonwealth, 241 Va. 364, 372, 402 S.E.2d 218,

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

26
 c. Conducting Voir Dire in Panels of Five

Juniper also contends the trial court erred “in conducting

voir dire of the potential jurors regarding questions of death

in panels of five.” His argument is based on the contention

that individual voir dire “is the best process for ensuring that

truly unbiased, unprejudiced jurors are chosen to sit in

judgment of the defendant.” We have previously ruled that the

manner of conducting voir dire rests “within the [trial] court’s

discretion.” Fisher v. Commonwealth, 236 Va. 403, 410-11, 374

S.E.2d 46, 50 (1988), cert. denied, 490 U.S 1028 (1989). In

Beavers v. Commonwealth, 245 Va. 268, 276-77, 427 S.E.2d 411,

417-18, cert. denied, 510 U.S. 859 (1993), we expressly upheld

the trial court’s discretion to question prospective jurors in

panels of five. Juniper makes no individualized claim of

impartiality or prejudice as a result of the trial court’s

manner of conducting voir dire. Consequently, we find no reason

to revisit our previous holdings on this issue.

B. PRE-TRIAL PROCEDURAL CHALLENGES

1. REFUSAL TO DISQUALIFY THE COMMONWEALTH’S ATTORNEY

Juniper contends the trial court erred in failing to

disqualify the Commonwealth's Attorney for the City of Norfolk,

John R. Doyle, III, because of his previous representation of

Juniper in a criminal case ten years earlier. In addition,

Juniper challenges the trial court's denial of his request to

27
cross-examine Doyle at the hearing on his disqualification

motion.

In 1994, Doyle represented Juniper on charges of escape

without force and trespass. Juniper pled guilty and entered

into a plea agreement with the Commonwealth. Juniper alleges

Doyle's former representation in this unrelated matter created a

conflict of interest in the case at bar which could be cured

only by Doyle's disqualification from prosecuting him. Juniper

also argues he should have been allowed to cross-examine Doyle

because Juniper carried the burden of proof on the

disqualification motion. See Powell v. Commonwealth, 267 Va.

107, 138, 590 S.E.2d 537, 556, cert. denied, 543 U.S 892 (2004).

At the hearing on the disqualification motion, Doyle

represented to the trial court that he gained no privileged

information from his prior representation of Juniper, harbored

no animosity towards him as a result of that representation, and

had no personal interest in the prosecution of the case at bar.

Juniper made no argument and presented no evidence to the

contrary. Neither Doyle nor Juniper had a personal recollection

of the prior representation. Furthermore, Doyle represented

that the Commonwealth would not use the record of that former

conviction as evidence. In response, Juniper agreed that this

concession by the Commonwealth benefited him, but then made the

argument that allowing Doyle to continue the prosecution did not

28
"[do] justice . . . to the community represented by the jury

which arguably should have that evidence." Juniper does not

repeat this argument on appeal, but simply contends Doyle's

status as Commonwealth Attorney creates an undefined conflict of

interest. All of Juniper's arguments are meritless.

The interest to be considered on a motion for

disqualification of a prosecutor is the protection of the

defendant's former attorney-client relationship and his right to

a fair trial in the matter at hand. See Powell, 267 Va. at 139,

590 S.E.2d at 557 (Commonwealth's attorney need not be

disqualified if defendant's antagonism had no "effect on his

professional judgment in seeking fairly and impartially to see

justice done"); Cantrell v. Commonwealth, 229 Va. 387, 394, 329

S.E.2d 22, 26-27 (1985) (due process rights of criminal

defendant violated when Commonwealth's Attorney who has conflict

of interest relevant to defendant's case prosecutes defendant).

Juniper has alleged no personal prejudice in the trial of

his case as a result of the former attorney-client relationship

with Doyle. The trial court argument that Doyle's offer not to

use his former conviction does an injustice to the jury and the

community at large is irrelevant, if not frivolous. The trial

court thus did not err in denying Juniper's motion for

disqualification nor in refusing his request to cross-examine

Doyle at the hearing on that motion.

29
 2. REFUSAL TO FUND EXPERT WITNESSES

Juniper separately assigns error to the trial court's

denial of his motions to fund a corrections expert and

mitigation expert in addition to those experts already appointed

by the court.12

Citing Skipper v. South Carolina, 476 U.S. 1 (1986), and

Eddings v. Oklahoma, 455 U.S. 104 (1982), Juniper contends that

failure to provide funds for his requested experts excluded

mitigation evidence in violation of his federal constitutional

rights. We disagree. The cases Juniper cites establish the

admissibility of specific mitigating evidence, not a

constitutional mandate that certain expert assistance be

provided an indigent defendant.13 See Skipper, 476 U.S. at 4-5

(defendant's behavior during incarceration relevant to

determination of future dangerousness); and Eddings, 455 U.S. at

116 (background and mental and emotional development of youthful

defendant must be considered a mitigating factor). These cases

provide no support for Juniper's argument that his

12
The trial court entered orders allowing Juniper to retain
Wayne Kennedy as a special investigator for the defense, and
appointing Dr. Thomas A. Pasquale, Ph.D., as a mental health
expert "to assist defense counsel in the preparation and
presentation of information concerning the defendant's history,
character, or mental condition."
13
Ake v. Oklahoma, 470 U.S. 68, 77 (1985), established a
three part test to determine when the Constitution requires that
certain expert assistance be provided an indigent defendant.

30
constitutional rights were violated by the trial court's denial

of his motion to fund mitigation and corrections experts.

Instead, we note that while the Commonwealth is required to

provide adequate expert assistance to indigent defendants in

certain circumstances, it is not required to provide them with

"all assistance that a non-indigent defendant may purchase."

Husske v. Commonwealth, 252 Va. 203, 211, 476 S.E.2d 920, 925

(1996), cert. denied, 519 U.S. 1154 (1997).

[A]n indigent defendant seeking the appointment of an
expert has the burden of showing a particularized need
therefor. The required showing must be determined on a
case-by-case basis, and a determination whether an
adequate showing has been made is a matter that rests
within a trial court's discretion. . . . A hope or
suspicion that favorable evidence may be procured from
an expert, however, is not sufficient to require the
appointment of an expert.

Barnabei v. Commonwealth, 252 Va. 161, 171, 477 S.E.2d 270, 276

(1996), cert. denied, 520 U.S. 1224 (1997) (citation omitted).

The Commonwealth maintains that Juniper failed to show a

particularized need for either of these experts. We agree.

With regard to the corrections expert, Juniper argued that

such a person was "necessary to examine the defendant's

background, behavior in the Norfolk City Jail and previous

incarcerations and provide testimony and documents." He

proffered no reason why examination of such records could not be

Juniper has made no argument under Ake that his requested
experts are "basic tools of an adequate defense." Id.

31
adequately conducted by his counsel, investigator or mental

health expert. As Juniper failed to show a particularized need

for a corrections expert, the trial court properly denied his

motion.

Juniper contended the mitigation expert could "locate

essential witnesses and data, examine and evaluate testimony and

documents." In denying this motion, the trial court noted that

the services of the requested mitigation expert were duplicative

of those of the court appointed private investigator, Wayne

Kennedy.

I can't think of anybody who's better qualified to
locate essential witnesses and data, examine and
evaluate testimony and documents than [Wayne Kennedy]
is. I don't know how much money the court authorized
for Mr. Kennedy when he was appointed, but [if there]
are other things that you all think he needs to do and
you need to come back, do so. Wayne Kennedy is
perfectly capable of doing these things, so that
motion is denied.

Although not receiving the particular expert he requested,

Juniper, in fact, received the services he requested. Thus, his

motion for a mitigation expert was properly denied. See Winston

v. Commonwealth, 268 Va. 564, 581, 604 S.E.2d 21, 30-31 (2004),

cert. denied, ___ U.S. ___, 126 S.Ct. 107 (2005).

3. REFUSAL TO PERMIT EXAMINATION OF INVESTIGATORS UNDER OATH

The trial court denied Juniper's discovery request in a

Motion to Examine Investigators Under Oath in which he sought to

“ensure that law enforcement officials have not concealed

32
exculpatory evidence . . . and that any and all such evidence

will be available prior to trial.” Juniper assigns error to

this ruling arguing that the trial court abused its discretion.

We find the trial court did not abuse its discretion because the

motion sought material beyond the scope to which Juniper is

entitled under Rule 3A:11 or any other provision of law.

There is no general constitutional right to discovery in a

criminal case, even where a capital offense is charged.

Strickler v. Commonwealth, 241 Va. 482, 490-91, 404 S.E.2d 227,

233, cert. denied, 502 U.S. 944 (1991). While a defendant has

the right to exculpatory evidence in the Commonwealth's

possession upon request, Stover v. Commonwealth, 211 Va. 789,

795, 180 S.E.2d 504, 509 (1971), Rule 3A:11 defines the other

discovery available to the accused in a felony case. See

Hackman v. Commonwealth, 220 Va. 710, 713, 261 S.E.2d 555, 558

(1980) (decided under previous Rule 3A:14). Under Rule 3A:11, a

felony defendant is entitled to his own "written or recorded

statements" made to law enforcement personnel, certain written

reports in the possession of the Commonwealth, and "tangible

objects . . . within the possession, custody, or control of the

Commonwealth" which "may be material to the preparation of [the]

defense." Rule 3A:11(b). The Rule specifically does not

authorize discovery of "statements made by Commonwealth

witnesses or prospective . . . witnesses to agents of the

33
Commonwealth . . . in connection with the investigation or

prosecution of the case." Rule 3A:11(b)(2).

Citing past instances in other cases when law enforcement

failed to provide prosecutors with all exculpatory evidence in

their possession, Juniper argues that he should be able to

examine the Commonwealth's investigators at a pretrial hearing

in order to determine independently if they have provided all

Brady material to the Commonwealth's Attorney. See Brady v.

Maryland, 373 U.S. 83, 87 (1963). Juniper offers no authority

to support this argument.

It is "the individual prosecutor [who] has a duty to learn

of any favorable evidence known to the others acting on the

government's behalf in the case, including the police." Burns

v. Commonwealth, 261 Va. 307, 328, 541 S.E.2d 872, 886, cert.

denied, 534 U.S. 1043 (2001) (quoting Kyles v. Whitley, 514 U.S.

419, 437 (1995)). Juniper admitted that "the Commonwealth's

Attorney has apparently disclosed all exculpatory evidence," and

he does not assert that any additional discoverable material

actually exists or that he has any reason to believe that there

is any which has not been disclosed.

We agree with the Commonwealth that Juniper's motion is "a

speculative search for evidence." No statute or rule of court

affords a defendant the right to use a pretrial hearing as a

discovery vehicle in this manner. Davis v. Commonwealth, 215

34
Va. 816, 821, 213 S.E.2d 785, 788-89 (1975); see also Williams

v. Commonwealth, 208 Va. 724, 729, 160 S.E.2d 781, 784-85

(1968). Because granting Juniper's motion to examine the

Commonwealth's investigators under oath would have allowed

Juniper discovery which is not authorized under Rule 3A:11 or

otherwise, the trial court did not abuse its discretion in

denying the motion.

4. JURY SELECTION ISSUES

a. Limitation of Questions During Voir Dire

In four separate assignments of error, Juniper contends the

trial court abused its discretion by limiting his voir dire

examination of prospective jurors. Specifically, Juniper argues

he should have been allowed to question potential jurors about

(1) the age and sex of their children and grandchildren; (2)

their educational coursework in psychology, psychiatry, or law;

(3) their military experience, including courts martial; and (4)

their “philosophical” beliefs. Although Juniper argues the

trial court abused its discretion, he also relies on the

statutory right to examine potential jurors on issues of

relationship, interest, opinion, or prejudice under Code § 8.01-

358.

The Commonwealth responds there was no abuse of discretion

and that parties only have a right to ask potential jurors

questions “relevant to the [Code § 8.01-358] factors of

35
relationship, interest, opinion or bias.” The Commonwealth

contends Juniper’s proposed questions were not relevant to any

of those factors.

The purpose of voir dire is to protect an accused’s

constitutional right to trial by an impartial jury. U.S. Const.

Amends. VI and XIV; Va. Const. Art. I, § 8. Code § 8.01-358

expands upon these principles by providing, in relevant part:

[t]he court and counsel for either party shall have
the right to examine under oath any person who is
called as a juror therein and shall have the right to
ask such person or juror directly any relevant
question to ascertain whether he is related to either
party, or has any interest in the cause, or has
expressed or formed any opinion, or is sensible of any
bias or prejudice therein . . . .

Even so, parties do not have “an unlimited constitutional

or statutory right to propound any question to a jury panel.

Rather, the questions propounded during voir dire must be

relevant to the factors prescribed in Code § 8.01-358.”

Commonwealth v. Hill, 264 Va. 315, 319, 568 S.E.2d 673, 675

(2002), cert. denied, 537 U.S. 1202 (2003). Thus, “[i]f an

answer to the question would necessarily disclose, or clearly

lead to the disclosure of the statutory factors of relationship,

interest, opinion, or prejudice, it must be permitted.

Questions which go beyond this standard are entirely within the

trial court’s discretion.” LeVasseur v. Commonwealth, 225 Va.

36
564, 581, 304 S.E.2d 644, 653 (1983), cert. denied, 464 U.S 1063

(1984). A party does not have a right to

propound any question he wishes, or to extend voir
dire questioning ad infinitum. The court must afford
a party a full and fair opportunity to ascertain
whether prospective jurors ‘stand indifferent in the
cause,’ but the trial judge retains the discretion to
determine when the parties have had sufficient
opportunity to do so.

Id.

i. Age and Gender of Juror’s Children and Grandchildren

Juniper contends the trial court abused its discretion in

restricting his voir dire of potential jurors by limiting

inquiry about the specific age and gender of their children or

grandchildren. This limitation, Juniper argues, had the

"potential for prejudice in contemplating punishment,” because

of “a parent’s protective instincts toward his or her own

children” in view of the young ages of Shearyia and Nykia.

The Commonwealth argues that the question requesting the

age and gender of a potential juror’s children and grandchildren

was unnecessarily intrusive. Furthermore, the Commonwealth

avers that the actual voir dire of potential jurors ascertained

whether they had children or grandchildren under the age of 14,

and, if so, whether those jurors could fairly try the case.

Although the trial court did not permit an open-ended

inquiry, it did permit the panels of potential jurors to be

asked: “[D]o [any of] you have children or grandchildren under

37
the age of 14?” and “Would the fact that those of you who have

answered this question in the affirmative have children or

grandchildren under the age of 14, given the statement of the

case that was read to you by the Court . . . prevent you from

giving both sides in this case a fair trial and . . . basing

your verdict on the evidence?” The trial court had informed the

potential venire that "I expect that the Commonwealth will

present evidence that the defendant shot and killed . . . Nykia

Stephens who was four years old and Shearyia Stephens who was

two years old."

Juniper conceded at trial that a juror would not be struck

for cause based solely upon the age or sex of that juror’s

children. He nonetheless contends the trial court abused its

discretion in not permitting his requested inquiry. We disagree

with Juniper that the trial court abused its discretion.

Juniper had the opportunity to ascertain from all potential

jurors if they had a child or grandchild under the age of 14.

He did not ask two of the ten panels this question at all, and

in two panels only asked one or two of the potential jurors.

All potential jurors in the remaining six panels were asked

these questions.

38
 Furthermore, Juniper had the opportunity, in addition to

the trial court’s examination on bias,14 to specifically inquire

as to bias on the basis of the age of a juror’s progeny. All

prospective jurors who responded that having young children or

grandchildren would affect their ability to be impartial were

struck for cause without objection. Juniper thus had full

knowledge of those potential jurors who had not indicated bias

or prejudice as a result of having young children or

grandchildren and could consider this factor in exercising

peremptory strikes if he so chose.

Nonetheless, he argues, without citation to authority, that

he should have been able to gather further information about the

age and gender of the potential jurors’ children and

grandchildren. As we noted in an analogous voir dire context in

LeVasseur, 225 Va. at 582, 304 S.E.2d at 653, “[s]uch attitudes

might well be interesting to counsel, but they have no

relationship to the juror’s ability to abide by the court’s

14
In addition to pursuing other specific areas of potential
bias or prejudice, the trial court asked the panels variations
of the following open-ended questions to determine the potential
jurors’ impartiality and fairness: “Do any of you know of any
reason . . . why you could not or would not be able to fairly
and impartially determine the facts of the case or abide by the
instructions of the Court on capital murder sentencing issues?”
“Do you know of any reason . . . even if I haven’t already asked
you . . . that would prevent you from giving a fair and
impartial trial to the Commonwealth and to Mr. Juniper based
solely on the law and the evidence?”

39
instructions, to find the facts impartially, and to apply the

law to the facts conscientiously.”

Our jurisprudence according deference to the trial court’s

discretion in consideration of juror voir dire matters is long-

standing. “Whether to permit a party to ask a question that

goes beyond what is permissible under Code § 8.01-358 is a

matter entirely within the trial court’s discretion.” Powell,

267 Va. at 143, 590 S.E.2d at 559; see also Green, 266 Va. at

96-97, 580 S.E.2d at 843 (“When, as here, a trial court affords

ample opportunity to counsel to ask relevant questions and where

the questions actually propounded by the trial court were

sufficient to preserve a defendant’s right to trial by a fair

and impartial jury, we will generally not reverse a trial

court’s decision to limit or disallow certain questions from

defense counsel.”); Goins v. Commonwealth, 251 Va. 442, 458, 470

S.E.2d 114, 125, cert. denied, 519 U.S. 887 (1996) (“[S]ince

[the accused] had ample opportunity to ask relevant questions,

and since the questions asked were sufficient to preserve [the

defendant’s] right to trial by a fair and impartial jury, the

trial court did not abuse its discretion in refusing to ask

additional questions.”); LeVasseur, 225 Va. at 581, 304 S.E.2d

at 653. We see no reason not to accord deference to the trial

court's ruling on this issue.

40
 In addition to our long-standing recognition of deference

to the trial court’s discretion on matters of voir dire, we find

instructive the decision of the Supreme Court of California,

which examined a similar issue in People v. Box, 5 P.3d 130,

146-47 (Cal. 2000), cert. denied, 484 U.S. 963 (2001).

Box involved a multiple homicide, one of the victims being

a three-year-old boy. Id. at 142. Defendant’s counsel sought

to ascertain in voir dire “whether the prospective jurors had

young children or grandchildren.” Id. at 147. The trial court

declined to permit that inquiry, but did make specific

examination of the potential venire as to any bias based on one

of the murder victims being a young child. Id. Finding that

“the bias these inquiries sought to uncover was adequately

addressed” by the trial court’s voir dire, the California

Supreme Court found no abuse of discretion. Id.; see also

United States v. Joe, 831 F.2d 218, 221 (10th Cir. 1987), cert.

denied, 484 U.S. 1072 (1988).

In the case at bar, Juniper’s counsel was permitted greater

latitude of inquiry than in Box, having the ability to ascertain

those potential jurors with children or grandchildren under the

age of 14. The trial court, and Juniper, made full inquiry as

to any bias or prejudice on the part of such potential jurors.

Accordingly, we find no abuse of discretion in the trial court’s

refusal of Juniper’s requested inquiry.

41
 ii. Other Questions

Juniper also contends he should have been able to inquire

as to a juror’s educational background in the fields of

psychology, psychiatry, or law because those studies could lead

to impermissible “preconceived notions” regarding the testimony

of Juniper’s expert witnesses or on matters of the law. The

Commonwealth responds that the specific questions Juniper

proposed did not inquire as to whether the potential jurors had

earned particular degrees, but whether they had "any education"

in the particular fields. The Commonwealth further questions

the relevance of determining that “somebody once took Psych 101”

to evaluate a juror’s potential bias.

Juniper’s concerns regarding the potential jurors’

educational background in psychology, psychiatry, and law were

adequately addressed by inquiring about the potential jurors’

occupations and, when necessary, for a description of their work

responsibilities. Little, if any, relevant information would

have emerged from learning the specific coursework of a

potential juror outside their particular career. The trial

court did not err in barring Juniper’s proposed questions.

Juniper also assigns error to his inability to question

potential jurors regarding their military experience,

particularly as to courts martial. He contends that such an

inquiry could reveal whether potential jurors had a background

42
in military law enforcement or the military justice system. The

Commonwealth argues that a juror’s generic military experience

is irrelevant because “members of the armed forces generally

have no role in the investigation or prosecution of crimes.”

Furthermore, the Commonwealth contends any relevant concern

regarding a background in military law enforcement was

adequately covered by the trial court’s direct inquiry about law

enforcement experience.15

Juniper’s concerns were adequately covered by the trial

court’s direct question to jurors about law enforcement service.

A potential juror’s military experience would have had little,

15
The transcript of the voir dire depicts the relevant
question and clarification asked of the entire panel of
potential jurors:
Have any of you or any member of your immediate
family ever been employed in law enforcement? I’ll
try to give you some definition.
Immediate family I would certainly think includes
your husband, your wife, your parents, your children,
any relative who lives with you. I know some families
are closer than others. Any family member you feel
especially close to, I’ll have to leave that up to
your judgment.
Law enforcement would include state, local
police, sheriff’s department, correctional officers,
FBI agents, ATF agents, military police, secret
service agents, naval investigators. I’m sure there
are other agencies I haven’t thought of.
Law enforcement officers don’t include lawyers
unless they are prosecuting attorneys, but anyway,
with those general definitions in mind I’ll restate
the question.
Have any of you or members of your immediate
family ever been employed in law enforcement?

43
if any, probative value, as the trial court confirmed that

Juniper was never a member of the armed services. To the extent

that requesting the potential jurors’ military service would

have shed light on their law enforcement experience, the trial

court’s explanation of “law enforcement” covered any law

enforcement experience while in military service.

Lastly, we find no merit in Juniper’s assertion that the

potential jurors should have been directly asked about their

“philosophical” beliefs, which might affect their judgment as

jurors. The trial court asked a series of questions designed to

alert jurors to possible bias from their opinions or beliefs

that could influence their function as impartial triers of fact.

Although “religious or moral” beliefs were specifically

addressed in voir dire, the trial court also inquired as to “any

opinion or belief” that would influence the potential jurors’

consideration of sentences of life or death and “any reason

whatsoever” that would prevent them from affording Juniper a

fair trial. (Emphasis added.) Juniper’s request is semantic

irrelevance.

The trial court did not abuse its discretion in refusing to

permit Juniper to ask potential jurors any of the aforementioned

questions.

b. Failure to Strike Certain Jurors for Cause

(Emphasis added.)

44
 Juniper assigns error to the trial court’s failure to

strike four potential jurors: Henry, Colander, Ashby, and

Molinaro. Code § 8.01-358 and Rule 3A:14 facilitate an

accused’s constitutional right to be tried by an impartial jury

by providing that members of the venire must “stand indifferent

in the cause.” A prospective juror

must be able to give [the accused] a fair and
impartial trial. Upon this point nothing should be
left to inference or doubt. All the tests applied by
the courts, all the enquiries made into the state of
the juror’s mind, are merely to ascertain whether [the
juror] comes to the trial free from partiality and
prejudice.

Wolfe, 265 Va. at 211, 576 S.E.2d at 482 (quoting Wright v.

Commonwealth, 73 Va. (32 Gratt.) 941, 943 (1879)).

On appeal, this Court generally gives deference to the

trial court’s decision whether to strike a potential juror for

cause. Vinson v. Commonwealth, 258 Va. 459, 467, 522 S.E.2d

170, 176 (1999), cert. denied, 530 U.S. 1218 (2000). We do so

“[b]ecause the trial judge has the opportunity, which we lack,

to observe and evaluate the apparent sincerity,

conscientiousness, intelligence, and demeanor of prospective

jurors first hand . . . .” Pope v. Commonwealth, 234 Va. 114,

123-24, 360 S.E.2d 352, 358 (1987), cert. denied, 485 U.S. 1015

(1988) (citing Calhoun v. Commonwealth, 226 Va. 256, 258-59, 307

S.E.2d 896, 898 (1983)). Consequently, unless “manifest error

45
appears in the record,” the trial court’s decision will not be

disturbed. Id.

In reviewing whether a potential juror should have been

removed from the venire, we consider “the prospective juror’s

entire voir dire, not just isolated portions.” Jackson, 267 Va.

at 191, 590 S.E.2d at 527. Guided by these principles, we

review the entire voir dire of the four prospective jurors

Juniper argues should have been stricken for cause.

i. Juror Henry

Juniper moved to strike prospective juror Henry for the

“bias and prejudice” shown in his responses to whether he would

consider life imprisonment without parole as an alternative to

the death penalty. Juniper asserts that prospective juror Henry

was not successfully rehabilitated from his statement that he

“would more likely favor the death penalty.” Juniper contends

Henry’s voir dire “demonstrated the type of preconceived opinion

that the process of voir dire is designed to ferret out.”

The Commonwealth submits that the totality of Henry’s voir

dire indicates an open mind to consideration of a sentence of

life imprisonment. In particular, the Commonwealth notes that

Henry stated that he did not know whether there were mitigating

factors that would affect his decision and agreed that he would

“consider all the alternative punishments prior to reaching a

decision.”

46
 The record contains the following exchange:

[DEFENSE COUNSEL]: [You] are able to consider life
imprisonment without parole as an alternative to the
death penalty in this case?

MR. HENRY: Yes sir. It’s possible, but I would more
likely favor the death penalty.

. . . .

THE COURT: You could consider life imprisonment
without parole?

MR. HENRY: It’s within the realm of possibility, but
not likely.

. . . .

[DEFENSE COUNSEL]: Dr. Henry, would you restate what
you said a moment ago?

DR. HENRY: I said it’s within the realm of
possibility that I would – could see a sentence of
life imprisonment, but most likely I would favor the
death penalty based on what you’ve told me so far. I
don’t know if there are other mitigating factors that
could come up, but in general, I would favor the death
penalty.

. . . .

[COMMONWEALTH’S ATTORNEY]: So, Dr. Henry . . . you
know at the end when it comes time for a jury to
deliberate the Court will give you instructions
setting out the law, giving you guidance as to [how
to] conduct your deliberations and you could follow
the Court’s instructions including if the Court
instructed the jury to consider all the alternative
punishments prior to reaching a decision? Is that
fair to say?

[DR. HENRY]: Yes.

In denying Juniper’s motion to strike Henry, the trial

court stated,

47
 I gleaned from his answer he said he would be
inclined to the death penalty if that is proven and
the defendant is guilty of capital murder, but he
could consider the other one. . . . I think Dr.
Henry’s voir dire in its entirety [reflects] he’d be
open to consider both penalties.

Henry’s overall responses to voir dire questions relevant

to this particular issue reveal that he could “stand indifferent

in the cause” and would consider both the prosecution and

defense’s evidence when determining the appropriate sentence for

Juniper. He unequivocally responded “yes” when asked if he

would conduct deliberations as a juror according to the trial

court’s instructions, and he mentioned that mitigating factors

would play a role in determining Juniper’s sentence.

As we have previously stated, “[t]he standard to be applied

by a trial court in deciding whether to exclude or retain a

prospective juror is whether the prospective juror’s views

‘would prevent or substantially impair the performance of his

duties as a juror in accordance with his instructions and his

oath.’ ” Breard, 248 Va. at 77, 445 S.E.2d at 676 (quoting

Eaton v. Commonwealth, 240 Va. 236, 246, 397 S.E.2d 385, 391

(1990), cert. denied, 502 U.S. 824 (1991)); see also Schmitt v.

Commonwealth, 262 Va. 127, 139-41, 547 S.E.2d 186, 195-96

(2001), cert. denied, 534 U.S. 1094 (2002). Henry satisfied

this test by indicating that he could consider sentences both of

life or death in accord with the evidence. We also afford

48
deference to the trial court’s observation that Henry’s

responses showed he would “be open to consider both penalties.”

Therefore, we find no manifest error in the trial court’s

decision refusing to strike this juror for cause.

ii. Juror Colander

Juniper claims the trial court abused its discretion in

refusing to strike prospective juror Colander from the venire

because she had stated that it would cause hardship to be away

from her position as a public school principal for the duration

of the trial. The Commonwealth counters Juniper’s assertion by

observing that difficulty finding a replacement at work is

“irrelevant to any disqualifier under §8.01-358.” When refusing

to strike Colander from the venire, the trial court expressed

confidence that the Norfolk public school system could

accommodate her absence.

Juniper has not cited, nor does the record reflect, any

basis for removing Colander for cause. Decisions of the trial

court regarding whether to retain or excuse potential jurors are

entitled to great deference on appeal. As such, we find no

manifest error in the trial court’s decision rejecting Juniper’s

motion to strike Colander as a juror.

iii. Juror Ashby

Juniper contends that prospective juror Ashby should have

been struck for cause because her answers “indicated that she

49
[could not] sit fairly and impartially as she [had] already

formed opinions regarding Juniper and the evidence before the

commencement of the trial.” Specifically, Juniper cites Ashby’s

statement that “it’s hard when kids are involved” and her

knowledge of the case through media coverage to support this

assertion.

The Commonwealth responds that Ashby’s statements plainly

show she had not formed an opinion and would fairly contemplate

the evidence and instructions presented at trial. The

Commonwealth also relies on the trial court’s observation that

although “[Ashby’s] answers at least regarding capital

punishment were somewhat inconsistent,” her responses did not

provide a “reason to strike.”

The following colloquy occurred after Ashby indicated she

had heard “something” about the case from media reports:

[COMMONWEALTH'S ATTORNEY]: Has what you heard about it
or the seriousness of the allegations made you to
[sic] form an opinion about the guilt or innocence of
the person who’s accused?

[MS. ASHBY]: No. It haven’t [sic] made me form an
opinion or nothing, but it’s hard when kids is
involved. I’ll put it that way. So I can’t say. I
can’t form an opinion until all evidence is heard or
what.

[COMMONWEALTH'S ATTORNEY]: So you would base your
decision on the evidence that you will hear in the
courtroom which may include the deaths of children and
– but make your decision on what you hear in the
courtroom? You’re nodding your head yes?

50
 [MS. ASHBY]: Yes.

. . . .

[DEFENSE COUNSEL]: Ms. Ashby, based upon what you
have heard or read, have you formed an opinion as to
the guilt or innocence of Mr. Juniper?

MS. ASHBY: No. No.

The totality of Ashby’s voir dire reflects that she would

not rely on any information she had read or heard about the case

and that she had not formed an opinion regarding Juniper’s guilt

or innocence. As such, she would be able to “stand indifferent

in the cause” and fairly and impartially perform the duties of a

juror.

Mere exposure to media coverage does not disqualify a

potential juror as long as that individual can still fairly and

impartially weigh the evidence presented at trial. See Mu’Min

v. Virginia, 500 U.S. 415, 430 (1991); see also Wolfe, 265 Va.

at 209-12, 576 S.E.2d at 480-82; Bell v. Commonwealth, 264 Va.

172, 192-94, 563 S.E.2d 695, 709-10 (2002), cert. denied, 537

U.S. 1123 (2003). Consequently, we find that the trial court

did not err in refusing to strike this potential juror.

iv. Juror Molinaro

Juniper’s final challenge is that prospective juror

Molinaro should have been struck for cause because she was an

acquaintance of the Commonwealth’s Attorney. Juniper asserts

that when asked if it “would affect her ability to sit fairly

51
and impartially[, Molinaro] responded, ‘[I]’ve been thinking

that since nine o’clock this morning, and I don’t think so.’ ”

This exchange, Juniper contends, reflects Molinaro’s clear

“inability to give an unequivocal answer in light of her

familiarity to the prosecutor” and “illustrated her inability to

be a qualified juror for Juniper.”

The Commonwealth initially notes that Juniper misquotes

Molinaro’s response to the question regarding her impartiality

in such a way that suggests equivocation on Molinaro’s part that

her actual response does not. The record demonstrates

Molinaro’s complete response was, “I’ve been thinking about that

since nine o’clock this morning, and I don’t think so.”

(Emphasis added). From Molinaro’s actual response, the

Commonwealth asserts that far from equivocation, her answers

show “conscientious introspection with respect to possible bias

before reaching the conclusion that she could be fair.” In

light of this showing of truthfulness and frankness, the

Commonwealth contends the trial court did not abuse its

discretion in refusing to strike Molinaro.

The record shows the following colloquy during Molinaro’s

voir dire:

THE COURT: [W]hat’s the nature of your acquaintance
with [the Commonwealth’s Attorney]?

. . . .

52
 MS. MOLINARO: I know his wife from my work at
Sentara. I did – am I allowed to say I did put some
signs up in yard[s] in the neighborhood when he was
running for Commonwealth[’s] Attorney.

THE COURT: Do you believe your acquaintance with Mr.
Doyle would in any way prejudice you in favor of the
prosecution or impair your ability to give a fair and
impartial trial to –

MS. MOLINARO: I’ve been thinking about that since
nine o’clock this morning, and I don’t think so.

. . . .

[COMMONWEALTH’S ATTORNEY]: . . . I just wanted to be
sure we brought that all out. In fact, you may be
acquainted with [Defense Counsel] as well.

[MS. MOLINARO]: I know of [Defense Counsel] through
soccer.

. . . .

[DEFENSE COUNSEL]: Can you be certain [that you would
not be inclined or partial to the Commonwealth in this
case]?

[MS. MOLINARO]: I feel certain that knowing him the
little that I do, that I would be an impartial juror
just because I have faith in myself, but the reason I
have been asking is because I don’t do this very often
and so I do not know, but I do not think.

[DEFENSE COUNSEL]: You threw me off.

[MS. MOLINARO]: Yeah. Okay. Well, you’re more
experienced with screening jurors, but I think that I
am an impartial juror.

In rejecting Juniper’s motion to strike Molinaro, the trial

court stated:

I think she said she’d been thinking about it all
morning. The impression I got from observing her
demeanor was I imagine she made up her mind she can be

53
 fair in this case. . . . If people who knew the
Commonwealth’s attorney were disqualified from being
on a jury, in most rural areas in this state you’d
never have a criminal trial.

Our previous decisions have generally held that

relationship does not automatically disqualify a potential juror

from being fair and impartial. Wise v. Commonwealth, 230 Va.

322, 325, 337 S.E.2d 715, 717 (1985), cert. denied, 475 U.S.

1112 (1986) (citing Calhoun, 226 Va. at 263, 307 S.E.2d at 900).

The overarching consideration is whether the trial court erred

in determining that the prospective juror would fairly and

impartially decide the accused’s case. See, e.g., Jackson, 255

Va. 625, 640-41, 499 S.E.2d 538, 548 (1998), cert. denied, 525

U.S. 1067 (1999) (upholding trial court’s refusal to strike a

juror for cause when the juror’s husband was a first cousin of

the Commonwealth’s attorney); Roach v. Commonwealth, 251 Va.

324, 343, 468 S.E.2d 98, 109, cert. denied, 519 U.S. 951 (1996),

overruled in part on other grounds by Morrisette v. Warden of

the Sussex I State Prison, 270 Va. 188, 202, 613 S.E.2d 551, 562

(2005) (upholding retention of juror when the Commonwealth’s

attorney in a capital case formerly represented prospective

juror in a matter and the prospective juror still regarded him

as his “personal attorney”); Wise, 230 Va. at 325, 337 S.E.2d at

717 (1985) (upholding retention of prospective juror who was the

54
Commonwealth’s attorney’s “golfing buddy” and “long standing”

friend).

The voir dire of Molinaro demonstrates that after carefully

considering her association with the Commonwealth’s Attorney,

she could be impartial as a juror. We do not find manifest

error in the trial court’s conclusion that Molinaro would “stand

indifferent in the cause” and act as an impartial and fair

juror.

c. Batson Challenges

Juniper contends the trial court “erred in denying

Juniper’s Batson challenge to jurors Mix, McClain, Bailey,

Boddie and Dawley.” “In Batson v. Kentucky, 476 U.S. 79, 89

(1986), the United States Supreme Court held that excluding a

potential juror solely on the basis of the juror’s race is

purposeful discrimination and a violation of the Equal

Protection Clause of the Fourteenth Amendment of the United

States Constitution.” Jackson, 266 Va. at 435, 587 S.E.2d at

542.

When a defendant makes a Batson challenge to the use of a

peremptory strike, he must show that the individual “is a member

of a cognizable racial group,” Yarbrough v. Commonwealth, 262

Va. 388, 394, 551 S.E.2d 306, 309 (2001), cert. denied, 535 U.S.

1060 (2002) (quoting Batson, 476 U.S. at 96), and “make a prima

facie showing that the peremptory strike was made on racial

55
grounds.” Jackson, 266 Va. at 436, 587 S.E.2d at 542. Mere

exclusion of members of a particular race by using peremptory

strikes “does not itself establish such a prima facie case under

Batson.” Yarbrough, 262 Va. at 394, 551 S.E.2d at 309. To

establish a prima facie case, the defendant must also “identify

facts and circumstances that raise an inference that potential

jurors were excluded based on their race.” Id.

Once a prima facie case is put before the court, the burden

shifts to the prosecution “to produce race-neutral explanations

for striking the juror.” The defendant can then argue that the

prosecution’s explanations were purely a pretext for

unconstitutional discrimination. Jackson, 266 Va. at 436, 587

S.E.2d at 542.

Juniper offered no basis for his challenge that the strikes

were racially motivated other than observing that the jurors

were African-American.16 Nonetheless, the Commonwealth offered

the following race-neutral explanations for exercising its

peremptory strikes against the five jurors:

16
Although Mix, McClain, Boddie, and Dawley were African-
American, Juniper did not establish Bailey’s race. He never
inquired as to Bailey’s race or offered any evidence in that
regard. The trial court refused Juniper’s request that it find
as a matter of fact that Bailey was African-American and found
“[i]t appears Ms. Bailey is white.” Juniper did not assign
error to that finding and under Rule 5:17(c) he cannot challenge
that finding on appeal.

56
 (1) India Mix was struck because she had been a
client of one of Juniper’s attorneys in a prior
criminal case.

(2) The Commonwealth stated that it was “concern[ed]”
by the fact that Charlotte McClain’s brother had
been prosecuted in Norfolk by the Commonwealth
Attorney’s Office the previous year resulting in
a conviction.

(3) Malia Bailey was struck due to “inconsistent”
answers to questions regarding the possible
imposition of the death penalty. The prosecutor
observed that at one point in the voir dire, Ms.
Bailey “was pretty close” to crying as a result
of the questioning regarding the death sentence
and “said at one point it makes her sick to think
about . . . the possible imposition of the death
penalty.” In addition, the Commonwealth cited
Ms. Bailey’s on-going medical appointments
related to breast cancer treatments.

(4) Richard Boddie was struck because of his
“affirmative [response] that it would be
difficult to impose the death penalty.” In
addition, the Commonwealth noted that Mr. Boddie
was the final potential alternate juror who had
indicated “any difficulty” with the death
penalty.

(5) Michelle Dawley was struck because her brother
had been convicted of murder 25 years ago, and
the prosecutor believed that the conviction would
affect her.

The trial court concluded that Juniper failed to satisfy

the threshold requirement of a prima facie showing that any of

the strikes was racially motivated. In making its decision, the

trial court noted, “over the seven strikes the Commonwealth

made, four were black, . . . three were white which is generally

in fairly good proportion from the total mix on which they had

57
to strike.”17 Even if a prima facie case had been made, however,

the trial court found that the Commonwealth had provided a

sufficient race-neutral reason to strike each prospective juror

at issue.

Our previous decisions recognize the “unique opportunity to

observe the demeanor and credibility of potential jurors during

voir dire,” and therefore afford the trial court’s determination

whether the Commonwealth’s explanation is race neutral “great

deference.” Jackson, 266 Va. at 437, 587 S.E.2d at 543. We

will not reverse the trial court’s decision “unless it is

clearly erroneous.” Id.

Even if we assume that Juniper made a prima facie showing,

we find nothing in the record to support a conclusion that the

trial court’s determination was clearly erroneous. Far from

being pretextual explanations, as Juniper contends, the

Commonwealth’s reasons for dismissing each of the potential

jurors directly related to valid race-neutral reasons.

Furthermore, “the record supports the Commonwealth’s

characterization of the statements made by the potential jurors

in question.” See Jackson, 266 Va. at 437, 587 S.E.2d at 543.

17
Even if Ms. Bailey were properly categorized as African-
American, using five of seven peremptory strikes to remove
potential African-American jurors would not necessarily
establish a prima facie case of discrimination or overcome the
prosecution’s race-neutral explanations for its strikes. See,

58
Finding no basis for Juniper’s contention that the juror strikes

were racially motivated, we will not disturb the trial court’s

findings that Juniper had not established a prima facie case of

racial discrimination and that the Commonwealth’s explanations

for striking these jurors were race neutral.

5. DENIAL OF SUBSTITUTE PSYCHOLOGICAL EXPERT AND FINDING OF
FAILURE TO COOPERATE

The trial court granted Juniper's motion under Code § 19.2-

264.3:1(A) for the appointment of a mental health expert, Dr.

Thomas A. Pasquale, to assist with his defense. Pursuant to

Code § 19.2-264.3:1(F), the trial court granted the

Commonwealth's request for a similar expert, Dr. David Keenan.

The trial court also advised Juniper that his refusal to

cooperate with the Commonwealth's expert could result in the

exclusion of testimony by his expert witness or notice to the

jury that Juniper refused to cooperate with the Commonwealth's

expert. Juniper acknowledged to the trial court that he

understood the requirements and the potential consequences for

noncompliance. Code § 19.2-264.3:1(F)(2).

On December 29, 2004, the Commonwealth's expert, Dr.

Keenan, met with Juniper. Ten minutes into the meeting,

"Juniper stood, turned around, banged on the glass, said a few

things, banged on the glass." Juniper became angry, cursed at

e.g., Chandler v. Commonwealth, 249 Va. 270, 276-77, 455 S.E.2d

59
Dr. Keenan and told a guard that Dr. Keenan was "trying to set

[him] up." Juniper demanded that the guard remove him from the

interview room. The interview was thus terminated, and Dr.

Keenan testified that he did not "believe [he could] get any

useful information from Mr. Juniper" should they arrange another

meeting.

The Commonwealth then filed a motion under the provisions

of Code § 19.2-264.3:1(F)(2) to bar Juniper from presenting

expert testimony from Dr. Pasquale at sentencing or to permit

the Commonwealth "to introduce evidence of the defendant's

refusal to cooperate." Juniper filed a motion to appoint a

substitute expert for Dr. Keenan. At the hearing on this

motion, Juniper again acknowledged that refusal to cooperate

with Dr. Keenan could result in either "tell[ing] the jury that

[he] refused to cooperate or . . . exclud[ing] Dr. Pasquale."

Though Dr. Keenan and Juniper's accounts of the interview

questions differ, Juniper did not dispute that he refused to

cooperate with Dr. Keenan or that he terminated the interview.

Rather than asking that Juniper be prohibited from

presenting his own expert testimony, the Commonwealth agreed to

allow Juniper to present testimony from Dr. Pasquale as long as

the jury was informed of his refusal to cooperate with Dr.

Keenan. The trial court found "as a matter of fact that Mr.

219, 223-24, cert. denied, 516 U.S. 889 (1995).

60
Juniper refused to cooperate with the evaluation requested by

the Commonwealth," and ordered the sanction recommended by the

Commonwealth.

Juniper assigns error to the trial court's finding of

failure to cooperate and the denial of his motion to appoint a

substitute expert in place of Dr. Keenan. Code § 19.2-

264.3:1(F)(2) explicitly provides that the choice of sanction is

within the trial court's discretion. Based on the record and

Juniper's own admission that he made the decision to end the

interview, the trial court's finding that Juniper refused to

cooperate with Dr. Keenan was not erroneous. Similarly, we find

the trial court did not abuse its discretion in denying

Juniper's motion to appoint a substitute expert. See Mackall v.

Commonwealth, 236 Va. 240, 247, 372 S.E.2d 759, 764 (1988),

cert. denied, 492 U.S. 925 (1989) (indigent defendant not

entitled to a second psychiatric examination at state expense

where the Commonwealth already had paid for his first

examination); Pruett v. Commonwealth, 232 Va. 266, 276-77, 351

S.E.2d 1, 7 (1986), cert. denied, 482 U.S. 931 (1987) (defendant

“has no right to 'shop around' at state expense until he finds a

doctor who will give him the opinion he wants”).

C. GUILT PHASE

1. EVIDENTIARY ISSUES

a. Fitzgerald Cross-Examination

61
 Juniper contends that the trial court erred by disallowing

cross-examination of Terence Fitzgerald regarding "foot traffic"

to and from Keshia's apartment.

Fitzgerald, a friend of Keshia's, testified that he

obtained and paid the rent for the apartment in which Keshia and

her children lived. On cross-examination, defense counsel

attempted to ask Fitzgerald if the landlord had ever complained

to him about "foot traffic" at Keshia's apartment. The

Commonwealth objected on hearsay and relevance grounds.

Juniper's counsel responded that the inquiry was "simply offered

to show why [Fitzgerald] . . . went and talked to Keshia[–]

because he received a complaint, not for the truth of [the 'foot

traffic' complaint]." Fitzgerald was then asked if he "ever

complained to Keshia about the traffic at the apartment" and the

Commonwealth again objected. Defense counsel then argued the

question was relevant "as to whether or not someone else was

there or had the opportunity to be involved in these crimes.

You have high traffic," and represented that she planned "to

introduce evidence that the [apartment] looked like it had been

searched." The trial court sustained the Commonwealth's

objections.

Juniper assigns error to these rulings because he alleges

the trial court disallowed questioning which "would lead to

62
relevant testimony tending to show [Juniper] did not commit the

crime for which he was charged." Juniper cites the following

statement of law in support of this assertion:

In Virginia, evidence that a crime was actually
committed by someone other than the accused is
admissible for the purpose of generating a reasonable
doubt of the guilt of the accused. However, the
evidence introduced must point directly to guilt of a
third party. Thus, where there is a trend of facts and
circumstances tending clearly to point out some other
person as the guilty party, the [defendant] may
introduce any legal evidence which is available
tending to prove that another person committed the
crime with which he is charged. The admissibility of
circumstantial evidence tending to prove the guilt of
a third person is left to the discretion of the trial
court. Although circumstantial evidence tending to
prove the guilt of a third party is to be liberally
received, the evidence must be legally admissible.
That is, the evidence must be relevant and material,
and may not be hearsay.

Weller v. Commonwealth, 16 Va. App. 886, 890, 434 S.E.2d 330,

333 (1993) (citations and internal quotations omitted) (emphasis

added), aff’d in rehearing en banc, 443 S.E.2d 171 (1994). In

Weller, the Court of Appeals affirmed the judgment of the trial

court disallowing testimony that the defendant proffered to

implicate a particular individual, on the grounds that such

testimony was inadmissible hearsay and irrelevant. Id. at 890-

91, 434 S.E.2d at 333-34.

In this case, Juniper's attempted questioning of Fitzgerald

did not implicate another particular individual in the murders.

Defense counsel merely alleged that there were other people who

63
came to the apartment at unknown times, but never proffered any

evidence to support this claim. As we have previously stated,

[p]roffered evidence that merely suggests a third
party may have committed the crime charged is
inadmissible; only when the proffered evidence tends
clearly to point to some other person as the guilty
party will such proof be admitted. . . . [A] large
discretion must and should remain vested in the trial
court as to the admission of this class of testimony.

Elliott v. Commonwealth, 267 Va. 396, 424, 593 S.E.2d 270, 287

(2004), cert. denied, 543 U.S. 1081 (2005) (quoting Johnson v.

Commonwealth, 259 Va. 654, 681, 529 S.E.2d 769, 784, cert.

denied, 531 U.S. 981 (2000)). Thus, we find the trial court

correctly excluded the "foot traffic" question because it did

not tend "clearly to point to some other person as the guilty

party." Id.

b. Admission of Exhibits

Juniper assigns error to the trial court admitting exhibits

130 and 136 into evidence on the grounds those exhibits were

"prejudicial, inflammatory, and/or irrelevant." He separately

assigns error to the admission of exhibits 163-165 on the

grounds those exhibits were also "prejudicial, inflammatory, and

irrelevant." In determining whether relevant evidence should be

admitted, the trial court must apply a balancing test to assess

the probative value of the evidence and any undue prejudicial

effect of that evidence. Dandridge v. Marshall, 267 Va. 591,

596, 594 S.E.2d 578, 581 (2004). The determination to admit

64
such relevant evidence rests within the trial court's sound

discretion and will be disturbed on appeal only upon a showing

of an abuse of that discretion. Id. The trial court did not

abuse its discretion in admitting the exhibits about which

Juniper complains.

Exhibits 130 and 136 are autopsy photographs of Shearyia

that were admitted during the guilt phase of the trial. Exhibit

130 showed her leg with steel rods inserted to demonstrate the

trajectory of the bullets. Juniper argues the Commonwealth

should have used a Styrofoam model to show bullet trajectory as

it did with the other victims, instead of an actual photograph

of the leg. While admitting that Exhibit 130 is relevant,

Juniper argues it is inflammatory and the prejudicial effect

outweighs its probative value.

Exhibit 136 depicts no injury to Shearyia, but shows magic

marker ink on the side of her face as Rashid described. Juniper

argues that this exhibit is irrelevant and cumulative of Exhibit

135, which also depicts no injury, but shows ink on Shearyia's

back.

Photographs of a victim are admissible to show motive,

intent, method, malice, premeditation, and the atrociousness of

the crime. Walton v. Commonwealth, 256 Va. 85, 92, 501 S.E.2d

134, 138, cert. denied, 525 U.S. 1046 (1998). The fact that the

65
photograph also relates to an undisputed issue does not render

it irrelevant. See Orbe v. Commonwealth, 258 Va. 390, 402, 519

S.E.2d 808, 815 (1999), cert. denied, 529 U.S. 1113 (2000)

(Commonwealth could introduce photograph of victim's fatal wound

even though defendant stipulated cause of death); see also

Goins, 251 Va. at 459, 470 S.E.2d at 126 (photographs of victims

at crime scene admissible over defendant's objection that they

were irrelevant as identities of victims were not in dispute.).

In Joseph v. Commonwealth, 249 Va. 78, 86, 452 S.E.2d 862,

867, cert. denied, 516 U.S. 876 (1995), this Court affirmed the

trial court's decision to admit into evidence photographs

showing bullet trajectory over the defendant's objection that

such evidence was cumulative of the medical examiner's

description and diagram of the wounds. We held that the

"photographs were admissible because they further illustrate the

location and nature of [the victim's] wounds and provide

additional support to the medical examiner's conclusion . . . ."

Id. In this case, the Commonwealth represented, without

contradiction, that the photograph was "the best evidence that

we have to explain" the findings of the examining physicians.

Furthermore, Exhibit 130 was "very important” because it

permitted the jury to “understand how the wounds in the child

correspond with the wounds on the mother." Just as the

Commonwealth in Joseph was not required to rely on a description

66
and diagram of the victim's wounds, the Commonwealth could

validly introduce a photograph of the victim showing bullet

trajectory or a model of the victim's body for the same purpose.

Thus, Exhibit 130 was properly admitted into evidence.

The trial court determined that Exhibit 136 was admissible

because it corroborated Rashid's testimony that Shearyia had

black marker on her face on the morning of the murders. A

photograph may be admissible merely because it is "part of the

facts of this particular case," Jackson, 267 Va. at 202, 590

S.E.2d at 534, or because it corroborates witness testimony.

See Brown v. Commonwealth, 212 Va. 515, 519, 184 S.E.2d 786, 789

(1971), vacated on other grounds, 408 U.S. 940 (1972). The

trial court therefore did not err in admitting Exhibit 136.

Exhibits 163 and 164 are photographs of firearms recovered

from Juniper's residence during the execution of a search

warrant by the Norfolk Police on April 27, 2001. Exhibit 165 is

a stipulation of the facts regarding items found in the search,

signed by Juniper and the Commonwealth's Attorney as part of

Juniper's plea agreement on charges of possession of cocaine and

possession of marijuana. Exhibits 163, 164, and 165 were

introduced during the penalty phase of the trial. While

admitting that this evidence was relevant, Juniper argued to the

trial court any relevance was outweighed by the prejudicial

67
effect especially because the possession of firearms charges

from that incident were nol prossed by the Commonwealth.

In argument on brief, Juniper names the exhibits relating

to this assignment of error as Exhibits 162-64.

We do not consider any argument relating to the

admissibility of Exhibit 162 as it was not included in any

assignment of error. Rule 5:17(c). Neither do we consider if

the trial court erred in admitting Exhibit 165 because that

exhibit was never discussed on brief. Powell, 267 Va. at 135,

590 S.E.2d at 554 (failure to adequately brief assignment of

error is considered a waiver.). We consider only Juniper's

argument that the trial court erred in admitting Exhibits 163

and 164 into evidence. We find the trial court did not abuse

its discretion in so doing.

Juniper argues that admitting these photographs resulted in

prejudice to him that outweighed their probative value. He

notes that the photographs depict weapons that were the subject

of prior nol prossed charges, and "the weapon found was not the

weapon used relating to the case at bar."

The trial court ruled the photographs of the guns

admissible and agreed with the Commonwealth that they were

"relevant to the issue of a propensity for violence . . .

association with a firearm [and] future dangerousness." We find

that the evidence supports the trial court's decision.

68
Therefore, the trial court did not abuse its discretion in

admitting the photographs that are Exhibits 163 and 164.

Furthermore, Juniper's argument that the photographs

prejudicially refer to a weapon not associated with the crimes

charged in the case at bar is made moot by his waiver of his

assignment of error as to Exhibit 165, the stipulation of facts,

which also mentions the weapons.

c. Sufficiency of the Evidence

Juniper assigns error to the trial court’s failure “to

strike the Commonwealth’s evidence as to guilt” on the ground

that “the witness testimony of Renee Rashid, Keon Murray and

Tyrone Mings was inherently incredible and not worthy of

belief.” To support this claim, Juniper cites the “substantial

gap” in time “from the criminal act to when [Mings and Murray]

notified the police of their alleged knowledge of the events.”

Juniper makes the same contention regarding Rashid’s delay of

ten days before contacting an attorney and the police regarding

her knowledge of the crimes.

In addition, Juniper notes that Mings gave different

versions of the events to the police and, if he had actually

come upon Juniper “with a gun in his hand, and cocaine on his

face with dead bodies in the room,” could have been Juniper’s

fifth victim. Lastly, Juniper claims that the Commonwealth’s

case “was circumstantial in that the record is void of

69
eyewitnesses to the shooting.” Thus, Juniper argues the

totality of the evidence “plac[ing] Juniper at the scene and the

time of the incident, is inherently incredible.” We disagree.

Our oft-repeated statement regarding appellate review of

witness testimony is, “[t]he trier of fact is the sole judge of

the credibility of the witnesses, unless, as a matter of law,

the testimony is inherently incredible.” Walker v.

Commonwealth, 258 Va. 54, 70-71, 515 S.E.2d 565, 575 (1999),

cert. denied, 528 U.S. 1125 (2000) (citations omitted). To be

“incredible,” testimony “must be either so manifestly false that

reasonable men ought not to believe it, or it must be shown to

be false by objects or things as to the existence and meaning of

which reasonable men should not differ.” Cardwell v.

Commonwealth, 209 Va. 412, 414, 164 S.E.2d 699, 701 (1968)

(quoting Burke v. Scott, 192 Va. 16, 23, 63 S.E.2d 740, 744

(1951)).

The mere fact that a witness may have delayed in reporting

knowledge of a case or given inconsistent statements during the

investigation of a crime does not necessarily render the

testimony unworthy of belief. This circumstance is

appropriately weighed as part of the entire issue of witness

credibility, which is left to the jury to determine. See

Shelton v. Mullins, 207 Va. 17, 22, 147 S.E.2d 754, 757-58

70
(1966); Bradley v. Commonwealth, 196 Va. 1126, 1136, 86 S.E.2d

828, 834 (1955).

Rashid testified that she drove Juniper to Keshia’s

apartment and left that location without him on the morning of

the crime. She also stated that she heard “booms” corresponding

to the sound of gunshots as she left. After returning with

Murray and Little John to pick up Juniper, Rashid observed that

Juniper was carrying a pistol that matched the description of

the gun that both Mings and Murray testified they saw Juniper

carrying in Keshia’s apartment.

Mings testified that he found the door to Keshia’s

apartment knocked in from the outside, which comports with the

police officer’s description of Keshia’s door at the scene.

Mings also testified that he saw Juniper inside the apartment

and that Juniper had a powdery substance on his face. This

testimony is consistent with Murray’s testimony that Juniper had

a powdery substance like cocaine on his face when Murray picked

up Juniper from Keshia’s apartment a short time after Mings saw

Juniper.

Mings also testified that he saw Rueben and a young girl on

the bed in the master bedroom. He further testified that

Juniper told him that Keshia was on the floor “between the bed

and the dresser.” The positions of these victims are consistent

71
with their locations when the police first entered Keshia’s

apartment.

As noted, Murray’s testimony contained several facts that

supported the testimony of both Rashid and Mings. In addition,

Murray’s testimony that Juniper confessed to him that “[t]hey

gone” and he “killed them,” is supported by a second confession

Juniper made to Ernest Smith while incarcerated at the Hampton

Roads Regional Jail.

Having reviewed the entire testimony of Renee Rashid, Keon

Murray, and Tyrone Mings, we conclude that their testimony is

not inherently incredible. We next address Juniper’s more

general challenge to the sufficiency of the evidence and the

jury’s reliance on circumstantial evidence to support its

verdict.

Circumstantial evidence of guilt presented to the jury “is

as competent, and entitled to the same weight, as direct

testimony if such evidence is sufficiently convincing.”

Chichester v. Commonwealth, 248 Va. 311, 329, 448 S.E.2d 638,

650 (1994), cert. denied, 513 U.S. 1166 (1995) (quoting Derr v.

Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662, 668 (1991)).

Thus, “[w]hile no single piece of evidence may be sufficient,

the ‘combined force of many concurrent and related

circumstances, each insufficient in itself, may lead a

reasonable mind irresistibly to a conclusion.’ ” Id., 448

72
S.E.2d at 650 (quoting Stamper v. Commonwealth, 220 Va. 260,

273, 257 S.E.2d 808, 818 (1979), cert. denied, 445 U.S. 972

(1980)).

In a challenge to the sufficiency of the evidence to

sustain a verdict, the proof must be viewed in the light most

favorable to the Commonwealth. Burns v. Commonwealth, 261 Va.

at 337, 541 S.E.2d at 892. Much of the evidence has already

been detailed above and was not limited to the testimony of

Rashid, Murray, and Mings. As noted, Ernest Smith testified

that Juniper confessed to him that he had killed the victims.

Smith also stated that Juniper told him he killed the children

because “he didn’t want to leave any witnesses at the scene of

the crime.” In addition, the Commonwealth presented evidence

that Juniper’s DNA matched DNA found on the knife that was used

to stab Keshia, and that Juniper’s fingerprint also matched a

print retrieved from the knife.

Considering all of this evidence, and the reasonable

inferences that can be drawn from it, we conclude that the

evidence is sufficient to support a verdict of guilt. We hold

that the trial court did not err in denying Juniper’s motion to

strike the evidence.

2. JURY INSTRUCTION ISSUES

Juniper contends the “trial court erred by instructing the

jury as to ‘armed' burglary and not burglary.” On brief, he

73
argues that the Commonwealth’s evidence failed to prove “[a]n

essential element of armed burglary,” namely, “that [Juniper

was] armed with a deadly weapon.” It is further argued that

“[e]ven if Juniper was the individual who kicked the door in,

there is no evidence that he was armed with a weapon.”

Juniper posits as the basis for his argument the

proposition that Rashid’s testimony was inherently incredible

and not worthy of belief. To support this claim, Juniper cites

Rashid’s admission on cross-examination that she “didn't notice

any bulges in [Juniper’s] pants [or his] jacket . . . that

suggested . . . that he had a gun . . . [o]r a box of bullets."

The Commonwealth responds by asserting that Juniper waived

his right to appeal the jury instruction on armed burglary

because he did not object to the instruction when it was given.

Furthermore, the Commonwealth contends that “[t]o the extent

that [Juniper] argues that the court should have granted his

motion to strike as to armed burglary, this argument is

redundant of the argument made in Assignment of Error 26.”

The record establishes that Juniper made a motion to strike

the indictment for armed burglary at the close of the

Commonwealth’s evidence, and he renewed the motion to strike at

the close of all the evidence. As such, Juniper preserved his

right to appeal the trial court’s giving of instructions on the

charge of armed burglary.

74
 The record reflects that the jury was instructed as

follows:

The defendant is charged with the crime of
burglary while armed. The Commonwealth must prove
[four elements, the fourth being] [t]hat at the time
of his entry he was armed with a deadly weapon.

If you find the Commonwealth has proved all 4
[elements], you shall find the defendant guilty of
burglary while armed.

If you find the Commonwealth has proved all
[elements] but #4, you shall find the defendant guilty
of burglary.

This instruction is consistent with the trial court’s statements

at the time it rejected Juniper’s motion to strike the charge of

armed burglary. The trial court explained its decision:

I don’t find that any of the testimony heard is
inherently incredible. I’ll overrule the motions. I
think certainly the jury would have to be instructed
on the burglary charge for armed burglary as well as
unarmed burglary. I think they could conclude from
the evidence that no weapon was present at the time of
entry, but they could also conclude that one was.
It’s a factual question they have to decide.

The armed burglary instruction properly set forth the legal

definition of both armed burglary and the lesser-included

offense of burglary. An instruction accurately stating the law

is nonetheless improperly given if it is “inapplicable to the

facts and circumstances of the case.” Hatcher v. Commonwealth,

218 Va. 811, 813-14, 241 S.E.2d 756, 758 (1978). “An

instruction must be supported by more than a scintilla of

evidence.” Id. at 814, 241 S.E.2d at 758.

75
 As previously addressed in our discussion of the

sufficiency of the evidence claim, admissible evidence was

before the jury from Rashid, Murray, and Mings as to Juniper’s

possession of an automatic pistol at Keshia’s apartment at the

time of the crimes. If so believed by the jury, this witness

testimony was “more than a scintilla of evidence” necessary to

support the armed burglary instruction. None of the testimony

was inherently incredible, and none of it reduced to a scintilla

the amount of evidence indicating Juniper was armed with a

deadly weapon upon entering Keshia’s apartment. The instruction

appropriately left the factual determination of whether the

Commonwealth had sufficiently proven the fourth element of the

crime – that at the time of his entry Juniper was armed with a

deadly weapon – to the jury. We thus find no error in the trial

court’s decision to instruct the jury on armed burglary.

D. PENALTY PHASE

1. WITNESS TESTIMONY

a. Notice of Unadjudicated Criminal Conduct

Juniper argues the trial court abused its discretion with

regard to certain testimony of Malika Barnes about instances of

his unadjudicated conduct because there was no specific notice

given by the Commonwealth. He assigns error to the admission of

that testimony.

76
 In accordance with Code § 19.2-264.3:2, the Commonwealth

provided written notice to Juniper describing his unadjudicated

acts of criminal conduct which the Commonwealth intended to

present at the sentencing phase. In accordance with the

statute, the notice described each incident and gave the time

and place such conduct was alleged to have occurred. Juniper

argues that the Commonwealth's notice was insufficient as to

"the specific criminal acts, separate and distinct criminal

acts" that allegedly occurred in two of the listed incidents.

First, Juniper contends that while Malika testified that in

the spring of 2003, Juniper entered the food store where Keshia

worked and pulled her by the arm, the corresponding notice

stated as follows:

16. At diverse times during the Spring of 2003 at the
Tinee Giant . . . the defendant did threaten to do
bodily harm to Keshia Stephens (indicating that he
would beat her ass).

Second, Juniper alleges that Malika's testimony that in the

Spring of 2003, at Juniper's mother's home, Juniper addressed

Keshia as "bitch" and pulled her up out of a chair by her arm,

did not correspond to the notice which stated as follows:

15. During the Spring of 2003 at 1051 Kittrell Street
in Norfolk, Virginia the defendant did assault and
batter Keshia Stephens by grabbing her arm and
forcefully pulling her out of a chair.

77
 At trial, Juniper argued that the notice was insufficient

because it did not allege Juniper physically assaulted Keshia at

the food store, nor did it charge Juniper verbally berated her

at his mother's home, as Malika testified. He contends:

[A] physical assault and curse and abuse are not the
same offenses. They are routinely charged as separate
offenses when they're in lower court. . . . And if
they are separate offenses [and] we are noticed as to
a verbal assault and [this witness] start[s] talking
about grabbing and kicking and hitting, then we have
not been given notice. . . . Notice I believe . . .
should tell us what the offense is.

The trial court addressed Juniper's argument as to only the

food store incident, determining that a separate noticed

incident18 which alleged Juniper slapped Keshia, gave the defense

sufficient notice of the assault allegation.

On appeal, the Commonwealth argues that because the noticed

incidents advised Juniper of "two separate assaults that Spring

at the Tinee Giant . . . [t]he trial court properly concluded

that [Juniper] had fair notice of the Commonwealth's intent to

prove . . . assault." Furthermore, the Commonwealth contends

that even if the notice was not sufficient to advise Juniper of

the alleged incidents to which Malika testified, such error is

18
The incident to which the trial court referred is as follows:

10. During February or March 2003 at the Tinee Giant
. . . the defendant did threaten Keshia Stephens by
indicating "wait until you get off work" and
physically assault Keshia Stephens by slapping her in
the face.

78
harmless as Malika’s testimony was merely cumulative of other

incidents of assault by Juniper. We agree with the

Commonwealth.

The notice advised Juniper of four separate incidents at

the food store, which together alleged one incident of verbal

abuse, three counts of threatening bodily harm, and two assaults

on Keshia. Altogether, the Commonwealth noticed at least 11

assaults, four incidents of verbal abuse, and at least eight

occasions of threatening bodily harm by Juniper against Keshia.

With regard to the discrepancy between Malika’s testimony and

the food store incident, we agree with the trial court that the

two other alleged assaults at the Tinee Giant were sufficient to

notify Juniper of the unadjudicated assault conduct to which

Malika testified. We also find that Malika’s testimony that

Juniper called Keshia a "bitch" at his mother's house is merely

cumulative of the other incidents of alleged verbal abuse.

b. Testimony of Rueben Harrison, Sr.

Juniper contends the trial court “erred in refusing to

allow Juniper to call witness Rueben Harrison, Sr. [the father

of one of the decedents] regarding the imposition of the death

penalty.” Juniper asked the trial court to permit Harrison, Sr.

to testify about remarks attributed to him by the news media to

the effect “that as a Christian he cannot hope that jurors

79
impose the death penalty.” The trial court denied Juniper’s

request.

Juniper argues that Harrison, Sr.’s testimony should have

been permitted because he was the father of one of the victims,

and thus a “victim” permitted to testify under Code § 19.2-264.4

and Code § 19.2-11.01. Furthermore, Juniper contends the

testimony Harrison, Sr. would have given was relevant under Code

§ 19.2-299.1(vi), which permits victim impact testimony that

“provide[s] such other information as the court may require

related to the impact of the offense upon the victim.”

The Commonwealth responds that Harrison, Sr.’s potential

testimony does not fall within the scope of victim impact

testimony authorized under Code § 19.2-299.1 and is not relevant

to the ultimate decision of sentence, which is the sole province

of the jury. We agree with the Commonwealth.

The opinion of Harrison, Sr. as to the appropriate sentence

for Juniper is not an item encompassed within Code § 19.2-

229.1(i) through (vi),19 which sets forth the only factors about

19
Code § 19.2-299.1 states, in relevant part:
A Victim Impact Statement . . . shall (i) identify the
victim, (ii) itemize any economic loss suffered by the
victim as a result of the offense, (iii) identify the
nature and extent of any physical or psychological
injury suffered by the victim as a result of the
offense, (iv) detail any change in the victim’s
personal welfare, lifestyle or familial relationships
as a result of the offense, (v) identify any request
for psychological or medical services initiated by the

80
which testimony by a victim are permitted. See Code § 19.2-

264.4(A1).

More importantly, witness opinion on what the jury should

decide as the appropriate sentence in a given case is not

admissible. It is irrelevant to the sentencing decision, which

is only for the jury to make. A victim called as a witness by

the Commonwealth would clearly not be permitted to opine as to

his or her preferred sentence for the defendant. Payne v.

Tennessee, 501 U.S. 808, 830 n.2 (1991) (“Booth [v. Maryland]

also held that the admission of a victim’s family members’

characterizations and opinions about the crime, the defendant,

and the appropriate sentence violates the Eighth Amendment.”);

Booth v. Maryland, 482 U.S. 496, 508-09 (1987) (“The admission

of these emotionally charged opinions as to what conclusions the

jury should draw from the evidence clearly is inconsistent with

the reasoned decisionmaking we require in capital cases.”); see

also Humphries v. Ozmint, 397 F.3d 206, 217 (4th Cir. 2005)

(“[T]he Payne Court did not alter Booth’s holding that admitting

evidence of the victims’ opinions of the crime and of the

appropriate sentence for the defendant violates the Eighth

Amendment . . . .”).

victim or the victim’s family as a result of the
offense, and (vi) provide such other information as
the court may require related to the impact of the
offense upon the victim.

81
 The trial court did not err in excluding the requested

testimony of Rueben Harrison, Sr.

c. Dr. Pasquale's Testimony

Juniper posits two assignments of error regarding the trial

court's refusal to permit certain testimony by Juniper's mental

health expert, Dr. Thomas Pasquale. Initially, Juniper contends

the trial court wrongfully excluded Dr. Pasquale's testimony as

to Juniper's impulsiveness. Second, he argues the trial court

erred in not permitting Dr. Pasquale to testify regarding

Juniper's risk assessment related to his future dangerousness in

the context of a prison environment.

i. Impulsiveness

Juniper first maintains that Dr. Pasquale's testimony about

impulsiveness did not, as the Commonwealth alleges, relate to

premeditation which had been decided at the guilt phase.

Rather, Juniper contends Dr. Pasquale testified to "his overall

opinion that Defendant is an impulsive person and is possessed

of an impulsive character." He argues that Dr. Pasquale did not

testify that Juniper's "actions with regard to the murder were

an impulsive act." We disagree.

Prior to the Commonwealth's objection, Dr. Pasquale made

references to impulsiveness, which he described as a trait of

the preadolescent stage of development, an indicator of

82
characterological disfunction, and a characteristic of anti-

social behavior, all of which he said applied to Juniper.

However, defense counsel, near the end of his examination of Dr.

Pasquale, moved from questions regarding a general evaluation of

Juniper to Dr. Pasquale's opinion as to influences upon Juniper

at the time of the offense.

Q: Now, I want to direct your attention more
specifically to the issues before us in this case.
Specifically, sir, and I'm referring you to page
ten of your report. Would you address the issue of
. . . whether you have an opinion as to whether or not
Mr. Juniper acted under extreme mental or emotional
disturbance at the time of the offense?

A: What I had stated [in my report] are three
questions that are being asked in reference to issues
relevant to mitigation and risk. The first one [was]
did this person have a lot of stress, mental,
emotional disturbance at the time of offense.
And I said [in my report] that . . . he was in a
highly emotional, abusive and troubling relationship
with Ms. Stephens over a period of many months; that
when you combine his attachment problems, his rage
reactions, his need to control with a person that he's
embroiled with, that a foundation for violence becomes
built.
Now, I went on to look at something else as
well. . . . [T]hat . . . the issue of premeditated
aggression may be questioned in contrast to an act of
impulsivity.

Q: Explain that if you would, Dr. Pasquale.

A: Well, it's the notion of how do I view Mr.
Juniper behaving violently, being aggressive. And
. . . my interpretation was that he was a very
impulsive person who might not put a lot of thought at
all into doing something.

(Emphasis added).

83
 The Commonwealth then objected, arguing that

"[premeditation] has already been resolved with the guilt

phase." Juniper responded that Dr. Pasquale was not "testifying

that [Juniper] lacked premeditation, but perhaps just putting it

in context of the impulsivity that Dr. Pasquale has already

testified to,20 not that there was an absence of [premeditation]

in context."

Dr. Pasquale testified that there was a difference between

"premeditated aggression" and an "act of impulsivity." However,

any contrast between Juniper's alleged mental state at the time

of the crime and the required element of premeditation is

applicable only as it relates to Juniper's culpability, not his

sentence. We agree with the Commonwealth that Dr. Pasquale's

testimony on this point would have been properly admissible only

if Juniper were advancing a defense based upon mental disease or

disorder in the guilt phase, which he did not. See generally,

Dandridge, 267 Va. at 596-97, 594 S.E.2d at 581-82; Bailey v.

20
On brief, Juniper argues that "Dr. Pasquale had already
testified as to Defendant's impulsivity, without objection from
the Commonwealth, when testifying with regard to Defendant's
anti-social thought and behavioral patterns." To the extent
Juniper intends the Commonwealth had waived its objections to
Dr. Pasquale's later testimony, he is incorrect. Pasquale's
prior testimony regarding impulsiveness as a general
characteristic is substantially different from his later
testimony that Juniper was affected by impulsivity at the time
of the offense. Thus, we find that the Commonwealth did not
waive its right to object to Dr. Pasquale's impulsiveness

84
Commonwealth, 259 Va. 723, 734, 529 S.E.2d 570, 576, cert.

denied, 531 U.S. 995 (2000).

The trial court ruled that Dr. Pasquale could not "render

opinions on premeditation during the commission of the

offenses." We agree. The trial court's exclusion of Dr.

Pasquale's impulsiveness testimony regarding Juniper's state of

mind at the time of the offense was not erroneous.

ii. Risk Assessment

Citing no case authority in the trial court or on appeal,

Juniper contends the trial court abused its discretion when it

refused to permit “Dr. Thomas Pasquale to testify regarding

Juniper’s risk assessment related to his future dangerousness.”

This claim of error goes to the trial court’s prohibition of

proffered testimony from Dr. Pasquale, Juniper’s court appointed

psychologist, that Juniper’s risk assessment for future

dangerousness was different in a prison setting from that in an

“open community.”

Juniper asked the trial court “to allow Dr. Pasquale to

give his opinion on [Juniper's] future dangerousness in the

penitentiary.” The Commonwealth had objected to this line of

questioning arguing that “the question is in general terms would

the defendant exhibit violent conduct in the future as opposed

testimony as it related to Juniper's mental state at the time of
the murders.

85
to the question of could.” (Emphasis added.) Counsel argued

the issue and Dr. Pasquale was examined by both parties and the

trial court outside the presence of the jury.

Juniper represented that Dr. Pasquale would testify “there

is a difference in risk assessment which is to say future

dangerousness or the prediction of future dangerousness in an

open community such as the one we live in and in a prison

environment such as the one Mr. Juniper will live in.” The

trial court responded by noting that “I would think the jurors

could determine that without the need of expert testimony. I

think common sense would tell people that.” The Commonwealth

argued that in the context of future dangerousness “whatever is

said by [the] expert has to refer to the character of the

defendant, not the character of the prison or anything else.”

In response to voir dire, Dr. Pasquale explained that his

assessment of a defendant to evaluate future dangerousness would

involve a number of factors. “[W]hen you do the actuarial for

the open community, you're asking about the person. Did they

live with their biological parents? How did they go to school?

Do they have a personality disorder?” However, Dr. Pasquale

then explained that “[t]here have only been two variables that I

have described that have been shown to demonstrate some issue

about workability in prison[:] age and past performance in

incarceration.”

86
 While Juniper agreed he could not offer evidence on general

prison conditions, he did not proffer from Dr. Pasquale or

otherwise that there would be any testimony about how Juniper’s

personal and specific characteristics would be reflected in his

ability to adapt in prison or whether there was any past

incarceration performance to evaluate. Instead, Dr. Pasquale

acknowledged his “ultimate testimony is that . . . there is less

risk of the defendant acting out violently in prison than it

would be the defendant acting out violently in the open

community.” Upon completion of counsels' arguments and the

examination of Dr. Pasquale, and still outside the presence of

the jury, Juniper made a proffer of Dr. Pasquale’s proposed

testimony.

[DEFENSE COUNSEL]: If I [were] to ask you the
question and if the Court were to allow it, your
opinion would be that his risk assessment in the open
community is high and his risk assessment in the
prison setting is low to moderate?

[DR. PASQUALE]: Yes.

The trial court then later permitted Juniper’s counsel to

ask Dr. Pasquale this question in the presence of the jury:

[DEFENSE COUNSEL]: In your opinion is the risk
assessment of Mr. Juniper’s future dangerousness
dependent on or related to the circumstances of his
environment?

[DR. PASQUALE]: Yes.

87
However, the trial court did not allow any broader testimony

from Dr. Pasquale on the subject of future dangerousness in a

prison environment including the proffered question. In

rejecting Juniper’s request, the trial court observed “a

determination of future dangerousness revolves around an

individual defendant and a specific crime.” We do not find

error in the trial court’s ruling.

We have held in our prior decisions that “what a person may

expect in the penal system is not relevant mitigation evidence.”

Cherrix v. Commonwealth, 257 Va. 292, 310, 513 S.E.2d 642, 653,

cert. denied, 528 U.S. 873 (1999) (internal quotation marks

omitted); see also Walker, 258 Va. at 70, 515 S.E.2d at 574. We

have also been plain in establishing threshold requirements of

relevance for the admission of evidence in mitigation

particularly as it relates to the statutory factor of future

dangerousness: such evidence should “concern the history or

experience of the defendant.” Cherrix, 257 Va. at 310, 513

S.E.2d at 653; see also Burns, 261 Va. at 340, 541 S.E.2d at

893-94.

In Burns, we further delineated this concept while

rejecting Burns’ claim seeking evidence on “daily inmate

routine, general prison conditions.” Id. at 338, 541 S.E.2d at

892.

88
 Burns wanted to show, in rebuttal to the
Commonwealth’s evidence of his future dangerousness,
that his opportunities to commit criminal acts of
violence in the future would be severely limited in a
maximum security prison. However, in Cherrix, we
reiterated the principle that the United States
Constitution “does not limit ‘the traditional
authority of a court to exclude, as irrelevant,
evidence not bearing on the defendant’s character,
prior record, or the circumstances of his offense.’ ”
Cherrix, 257 Va. at 309, 513 S.E.2d at 653 (quoting
Lockett v. Ohio, 438 U.S. 586, 605 n.12 (1978)).
Thus, the relevant inquiry is not whether Burns could
commit criminal acts of violence in the future but
whether he would. Indeed, Code §§ 19.2-264.2 and –
264.4(C) use the phrase “would commit criminal acts of
violence.” Accordingly, the focus must be on the
particular facts of Burns’ history and background, and
the circumstances of his offense. In other words, a
determination of future dangerousness revolves around
an individual defendant and a specific crime. . . .

Unlike the evidence proffered by Burns, the evidence
in Skipper [v. South Carolina, 476 U.S. 1, 4 (1986)]
was peculiar to that defendant’s history and
background.

Id. at 339-40, 541 S.E.2d 893-94.

In Bell, 264 Va. at 201, 563 S.E.2d at 714, we re-

emphasized the necessity that relevant mitigating evidence on

the issue of future dangerousness must be based on the specific

characteristics of the defendant. In that context, evidence

relating to a prison environment must connect the specific

characteristics of the particular defendant to his future

adaptability in that environment in order to be heard by the

jury. It must be "evidence peculiar to a defendant's character,

89
history and background" in order to be "relevant to the future

dangerousness inquiry . . ." Id. We further observed that

[t]he testimony that Bell sought to introduce through
the expert concerned the conditions of prison life and
the kind of security features utilized in a maximum
security facility. That is the same kind of evidence
that we have previously rejected as not relevant to
the future dangerousness inquiry. . . . Nor is such
general evidence, not specific to Bell, relevant to
his “future adaptability” or as a foundation for an
expert opinion on that issue.

Id.

The proffer of Dr. Pasquale’s testimony on future

dangerousness in a prison setting fails to meet the test of

relevance established in our prior cases. Neither the actual

proffer, counsel’s argument, nor Dr. Pasquale’s explanations on

voir dire tie his proposed opinion testimony on future

dangerousness in a prison environment to Juniper’s “history and

background, and the circumstances of his offense,” Burns, 261

Va. at 340, 541 S.E.2d at 893, to Juniper's "character, history

and background" or was “specific to [Juniper], relevant to his

'future adaptability.'” Bell, 264 Va. at 201, 563 S.E.2d at 714.

While Dr. Pasquale may not have sought to offer specific

evidence on a day in the life of a prisoner, as in Cherrix, he

offered nothing to the trial court to support his opinion as

being based on Juniper's individual characteristics that would

90
affect his future adaptability in prison and thus relate to a

defendant-specific assessment of future dangerousness.21

The burden rested upon Juniper, as the proponent of Dr.

Pasquale’s testimony, to make a threshold showing, in conformity

with Bell and Burns, that an assessment of future dangerousness

was grounded on Juniper's specific characteristics in the

context of his future adaptability in a prison setting. See

Commonwealth v. Sanchez, 268 Va. 161, 165, 597 S.E.2d 197, 199

(2004) (party offering expert testimony must make proper proffer

of testimony's admissibility). Juniper failed to carry that

burden. The trial court thus correctly barred Dr. Pasquale’s

generalized testimony and did not abuse its discretion in doing

so.

2. REJECTED PENALTY PHASE INSTRUCTIONS

Juniper contends the trial court erred “by disallowing

Juniper’s proposed instructions in the penalty phase regarding

depravity of mind, aggravated battery, and mitigating evidence.”

The three rejected instructions are:

(Def. A) In deciding whether the Commonwealth has proven
that the defendant’s conduct was outrageously or
wantonly vile, horrible or inhuman in that it
involved depravity of mind, you are instructed
that depravity of mind is not proven by proof of

21
There was no issue in the case at bar, as existed in
Skipper, 476 U.S. 1, as to evidence concerning Juniper’s actual
adaptation to confinement while awaiting trial. This subject
was never mentioned at trial, and no contention is made in that
regard by Juniper.

91
 an intentional killing. Rather, depravity of
mind means a degree of moral turpitude and
psychical debasement surpassing that inherent in
the definition of ordinary malic[e] and
premeditation. Ordinary malice is that state of
mind which results in the intentional doing of a
wrongful act to another without legal
justification or excuse, at a time when the mind
of the actor is under the control of reason.
Ordinary premeditation is a specific intent to
kill, adopted at some time before the killing,
but which need not exist for any particular
length of time.

(Def. B) In deciding whether the Commonwealth has proven
that the defendant’s conduct was outrageously
vile, horrible or inhuman in that it involved an
aggravated battery to the victim, you are
instructed that an aggravated battery is not
proven by proof of an intentional killing.
Rather, an aggravated battery is a battery which,
qualitatively and quantitatively, is more
culpable than the minimum necessary to accomplish
an act of murder. A battery is the actual
infliction of corporal hurt on another. A
battery which causes death is a murder, but that
fact, standing alone, does not make the battery
an aggravated battery.

(Def. C) If you unanimously find that the Commonwealth has
proved an aggravating circumstance beyond a
reasonable doubt, you must go on to consider
mitigating evidence. Mitigating evidence is any
fact or circumstance that, while it does not
excuse or justify the offense, nonetheless in
fairness and mercy may either extenuate or
explain it or reduce the degree of the
defendant’s moral culpability such that he should
not be sentenced to death.
Certain factors, if they exist, are made
mitigating by law. In this case, they are:

1. That the defendant has no significant history
of prior criminal activity.

92
 2. That the capital felony was committed while
the defendant was under the influence of
extreme mental or emotional disturbance.

3. At the time of the commission of the capital
felony, the capacity of the Defendant to
appreciate the criminality of his conduct or
to conform his conduct to the requirements of
law was significantly impaired.

You must consider the evidence bearing on
each of these factors. Each of you must then
decide, individually, whether you find that the
factor exists. If you, individually, find that
any of these factors does exist, that factor is
mitigating and you must consider it in deciding
upon sentence.
Other factors, if they exist, may be
mitigating. You must consider all of the
evidence offered in mitigation. Each of you must
then decide, individually, whether the evidence
establishes the existence of any other factor and
whether that factor is mitigating. If you,
individually, find that a factor exists and that
it is mitigating, you must consider it in
deciding sentence.

In refusing the proposed instructions, the trial court

stated, “I think other instructions that are being given

adequately cover the subject instructions.”

Juniper asserts that because each proposed instruction

accurately states the law and substantially tracks either model

jury instructions or instructions used in other cases, the trial

court should have given his proposed instructions. He also

contends that giving a jury instruction regarding aggravating

and mitigating circumstances without also instructing the jurors

93
that the mitigating circumstances need not be unanimously found

is unconstitutional.22

The Commonwealth responds by asserting that the proposed

instructions were “cumulative” and “redundant” of instructions

given to the jury. Specifically, the Commonwealth notes the

substantially similar, and in cases identical, text in the

following instructions given by the trial court:

(1) “Depravity of Mind” means a degree of moral turpitude
and psychical debasement surpassing that inherent in
the definition of ordinary legal malice and
premeditation.

(2) An “aggravated battery” is a battery which,
qualitatively and quantitatively, is more culpable
than the minimum necessary to accomplish an act of
murder.

(3) If you find that the Commonwealth has proved beyond a
reasonable doubt the existence of an aggravating
circumstance, in determining the appropriate
punishment, you should consider any evidence presented
of circumstances which do not justify or excuse the
offense but which in fairness or mercy may extenuate
or reduce the degree of moral culpability and
punishment.

To the degree that the proposed instructions differed from

those actually given, the Commonwealth argues that the proposed

instructions would have impermissibly confused or misled the

jury, suggested a particular response from the jury, or provided

an incorrect statement of the law. "Def. A," the proposed

22
Juniper apparently refers to Instruction CS-7 given by
the trial court, but he fails to identify the specific
instruction.

94
instruction on depravity of mind, for example, included

instructions on malice and premeditation, which are not relevant

for consideration in the sentencing phase of the trial.

Similarly, "Def. B," the proposed instruction on aggravated

battery, “suggest[ed] resolution of the question in [Juniper’s]

favor.” As to proposed instruction “Def. C,” the Commonwealth

argued this would mislead the jury because it suggested the

listed mitigating factors had been determined to exist by the

trial judge, which was not the case.

After comparing the proposed instructions to those actually

given, we find that the trial court did not abuse its discretion

in refusing Juniper’s proposed instructions. The language

relevant and appropriate to Juniper’s case was “fully and

fairly” covered by the instructions given to the jury.

Instruction “Def. A” regarding malice and premeditation was

superfluous and potentially confusing to the jury at the penalty

stage because those factors are only at issue during the guilt

phase of the trial. The depravity of mind instruction that was

given contained sufficient information for the jurors to

understand that term. Similarly, the jury was adequately

instructed on what constitutes aggravated battery. The

additional information contained in the proposed instruction

“Def. B” was unnecessary and suggestive.

95
 With regard to Juniper’s proposed instruction “Def. C,” we

agree with the Commonwealth that the wording of the instruction

would have misled the jury as to the existence of the listed

mitigating factors because it implied that such factors had been

established. That determination was the responsibility of the

jury. Furthermore, we have previously rejected “the argument

that the jury should have been instructed its finding of

mitigating factors need not be unanimous” as being “unnecessary”

and “confusing.” Clark v. Commonwealth, 220 Va. 201, 212, 257

S.E.2d 784, 791 (1979), cert. denied, 444 U.S. 1049 (1980).

“Since only by unanimous agreement can the death penalty be

inflicted, a disagreement by one or more of the jurors as to the

proper sentence would, by statute, result in life imprisonment.

Code § 19.2-264.4(E).” Id. The differences between aggravating

and mitigating factors, and their role in determining a sentence

of death versus imprisonment for life, were sufficiently covered

by the instructions given to the jurors by the trial court.

Our previous decisions reflect that even if jury

instructions contain accurate statements of law, a trial court

does not abuse its discretion by refusing the instruction if it

“is not applicable to the facts and circumstances of the case,”

Hatcher, 218 Va. at 813-14, 241 S.E.2d at 758, or if it “would

have created confusion and would have been misleading.” Hubbard

v. Commonwealth, 243 Va. 1, 15, 413 S.E.2d 875, 883 (1992). Nor

96
does a trial court abuse its discretion by refusing a relevant

instruction if the “granted instructions fully and fairly cover”

the same legal principle. Stockton, 227 Va. at 145, 314 S.E.2d

at 384. The trial court thus did not err in refusing Juniper’s

proposed instructions.

E. STATUTORY REVIEW UNDER CODE § 17.1-313

Juniper’s initial assignments of error are that the

sentence of death (1) “was imposed under the influence of

passion, prejudice or other arbitrary factor” and (2) “is

excessive or disproportionate to the penalty imposed in similar

cases, considering both the crime and the appellant.” These

assignments of error track nearly verbatim the mandatory review

of a sentence of death which this Court must undertake under

Code § 17.1-313(C)(1) and (2). Accordingly, we consider

Juniper’s assignments of error and our statutory review

together.

1. CODE § 17.1-313(C)(1): PASSION, PREJUDICE OR OTHER
ARBITRARY FACTOR

Juniper argues that the imposition of his death sentence

demonstrates that the jury and trial court “were swept away on a

tide of passion, prejudice and other arbitrary factors,” but

cites no evidence from the record to support his contention.

Juniper’s failure to make a “particularized argument that the

jury’s verdict was not the product of a reasoned and

97
dispassionate deliberation” is not dispositive because of our

statutory mandate to review his sentence. Elliott, 267 Va. at

429, 593 S.E.2d at 291. We have completed that review of the

record and find no basis to conclude that the jury or trial

court were influenced by passion, prejudice or other arbitrary

factor in sentencing Juniper to death.

2. CODE § 17.1-313(C)(2): EXCESSIVE OR DISPROPORTIONATE
SENTENCE

We must also determine whether the death sentence imposed

upon Juniper is “excessive or disproportionate to the penalty

imposed in similar cases.” Code § 17.1-313(C)(2). Juniper’s

argument on this issue is again conclusory and without reference

to any particular reason his sentence is excessive or

disproportionate. That failure on Juniper’s part does not

affect our own proportionality review required by statute.

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, 258 Va. at 405, 519

S.E.2d at 817). Nor do we seek to “understand why the trier of

fact imposed the sentence of life” rather than a sentence of

death. Lewis v. Commonwealth, 267 Va. 302, 312, 593 S.E.2d 220,

226, cert. denied, 543 U.S. 904 (2004). Our review is to

“identify and invalidate the aberrant death sentence.”

Muhammad, 269 Va. at 532, 619 S.E.2d at 63 (quoting Orbe, 258

98
Va. at 405, 519 S.E.2d at 817). We find no aberration in the

case at bar.

In conducting the proportionality review, we 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, 260 Va.

at 518, 537 S.E.2d at 880 (quoting Johnson, 259 Va. at 683, 529

S.E.2d at 786). We have taken into account the circumstances of

the crimes and of Juniper. We have compared the record in the

case at bar with the records of other capital murder cases,

including those in which a sentence of life imprisonment was

imposed, pursuant to Code § 17.1-313(E). In particular, we have

reviewed capital murder cases where a defendant killed more than

one person as part of the same act or transaction, Code § 18.2-

31(7), and cases where a person age twenty-one or older killed a

person under the age of 14, Code § 18.2-31(12), and where the

sentence of death was imposed based upon the aggravating factors

of vileness and future dangerousness. See, e.g., Zirkle v.

Commonwealth, 262 Va. 631, 553 S.E.2d 601 (2001) (capital murder

of two persons, one of whom was under age of 14 by person age 21

or older); Bramblett v. Commonwealth, 257 Va. 263, 513 S.E.2d

400, cert. denied, 528 U.S. 952 (1999) (capital murder of family

of four, including two children under age of 14); Stewart v.

Commonwealth, 245 Va. 222, 427 S.E.2d 394, cert. denied, 510

99
U.S. 848 (1993) (capital murder of more than one person,

including wife and infant son); Goins, 251 Va. 442, 470 S.E.2d

114 (capital murder of family of five, including three children

under age of 14). In each of those cases, this Court affirmed

the sentences of death.23 Upon review, we conclude that

Juniper’s sentence of death was not excessive or

disproportionate to the sentences imposed by other sentencing

bodies in the Commonwealth in comparable cases with comparable

defendants.

III. CONCLUSION

Upon review of the record and upon consideration of the

arguments presented, we find no reversible error in the judgment

of the trial court. Furthermore, we find no reason to commute

or set aside the sentences of death. We will affirm the

judgment of the trial court.

Affirmed.

23
These cases are cited as examples, but “our
proportionality analysis encompasses all capital murder cases
presented to this Court for review and is not limited to these
selected cases.” Burns, 261 Va. at 345, 541 S.E.2d at 896-97
(internal quotation mark omitted).

100