Present: All the Justices
JOHN ALLEN MUHAMMAD
v. Record Nos. 041050 & 041051
OPINION BY JUSTICE DONALD W. LEMONS
April 22, 2005
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
LeRoy F. Millette, Judge
In these appeals, we consider two capital murder
convictions and two death sentences imposed upon John Allen
Muhammad ("Muhammad"), along with his convictions for
conspiracy to commit capital murder and the illegal use of a
firearm in the commission of murder. This prosecution arose
from the investigation of a series of sixteen shootings,
including ten murders that occurred in Alabama, Louisiana,
Maryland, Washington, D.C., and Virginia over a 47-day period
from September 5 to October 22, 2002. For the reasons
discussed herein, the judgment of the trial court and the
sentences of death will be affirmed.
I. Facts and Proceedings Below
A. Facts
On the morning of Wednesday, October 9, 2002, Dean H.
Meyers ("Meyers") was shot and killed while fueling his car at
the Sunoco gas station on Sudley Road in Manassas, Virginia.
Meyers was shot in the head by a single bullet. The bullet
entered behind his left ear, where it fragmented into multiple
small pieces. The bullet fragments shattered the temporal
bone and the fragments of bullet and bone then traveled
through his brain and caused multiple fractures of his skull.
This gunshot wound was consistent with injuries from a bullet
fired from a high velocity rifle, 1 and was the cause of Meyers'
death. Evidence at trial established that the bullet came
from the .223 caliber Bushmaster rifle Muhammad possessed when
he was arrested. An eyewitness testified that she saw
Muhammad and Lee Boyd Malvo ("Malvo") in the vicinity of the
shooting approximately one hour beforehand. Police
interviewed Muhammad immediately after the shooting in a
parking lot across the street from where Meyers was shot. In
both encounters, Muhammad was driving a Chevrolet Caprice
("Caprice") in which he was later arrested. Muhammad's
fingerprints were on a map police found in the parking lot
where Muhammad had been interviewed.
Meyers was killed during a 47-day period, from September
5 to October 22, 2002, in which ten others were murdered and
six more suffered gunshot wounds as a result of the acts of
1
Throughout the trial, various witnesses and counsel made
references to a high velocity rifle, high velocity weapon, and
high velocity bullet, cartridge, or load. The technical
distinctions between these terms are insignificant to the
analysis in this opinion.
2
Muhammad and Malvo in concert. The murder of Meyers was the
twelfth of these sixteen shootings.
The first shooting occurred in Clinton, Maryland on
September 5, 2002. Paul J. LaRuffa ("LaRuffa"), the owner of
Margellina's Restaurant, left the restaurant at closing and
proceeded to his car with his briefcase and Sony portable
computer. Inside the briefcase were bank deposit bags that
contained $3,500 in cash and credit card receipts from that
evening. LaRuffa placed the briefcase and laptop on the
backseat of his car, and then sat behind the steering wheel.
He testified that, almost immediately after he sat down, he
saw a figure to his left and a flash of light. He heard
gunshots and the driver's side window shattered. When he
stepped out of his car, he realized he had been shot. The
trauma surgeon who treated him testified that LaRuffa was shot
six times: once in the back left side of his neck, three
times in the left side of his chest, and twice in his left
arm.
An employee who left the restaurant with LaRuffa, Paul B.
Hammer ("Hammer"), witnessed the shooting and called "911."
Hammer testified that he saw a "kid" run up to LaRuffa's car,
fire shots into it, and then open the rear door and take the
briefcase and portable computer. He was unable to provide a
detailed description because of lighting conditions, but
3
testified that the shooter was a male in his late teens or
early twenties. The briefcase and empty bank deposit bags,
along with a pair of pants and a shirt, were found six weeks
later in a wooded area about a mile from the shooting. Hair
on the clothing yielded DNA that was consistent with Malvo's
DNA.
Four days later, on September 9, Muhammad purchased a
1990 Caprice automobile from Christopher M. O'Kupski
("O'Kupski") in Trenton, New Jersey. O'Kupski testified that
before the purchase, Muhammad got into the trunk and lay down.
O'Kupski also testified that, when Muhammad purchased it, the
Caprice did not have a hole in the trunk or a passageway from
the backseat to the trunk; the trunk was not spray-painted
blue; and the windows were not tinted.
The second shooting occurred in Clinton, Maryland on
September 15, 2002. Muhammad Rashid ("Rashid") was closing
the Three Roads Liquor Store. Rashid testified that he
noticed the Caprice outside the store shortly before closing.
He testified that he was in the process of locking the front
door from the outside when he heard gunshots from behind him.
At the same time, a young man with a handgun rushed towards
Rashid and shot Rashid in the stomach. At trial, Rashid
identified Malvo as the person who shot him. Two bullets were
removed from inside the store. The bullets had been shot
4
through the front door and the trajectory of the bullets
placed the shooter in a field across the street from the
store.
The third and fourth shootings occurred in Montgomery,
Alabama on September 21, 2002. Claudine Parker ("Parker") and
Kelly Adams ("Adams") closed the Zelda Road ABC Liquor Store
and walked out. They were shot immediately. Parker died as a
result of a single gunshot wound that entered her back,
transected her spinal cord, and passed through her lung.
Adams was shot once through her neck, but lived. The bullet
exited through her chin, breaking her jaw in half, shattering
her face and teeth, paralyzing her left vocal cord, and
severing major nerves to her left shoulder. Both gunshot
wounds were consistent with injuries caused by a high velocity
rifle. Testing revealed that the bullet fragments recovered
from the Parker shooting were fired from a Bushmaster rifle
possessed by Muhammad when he was arrested.
As the rifle shots were fired, a young man, later
identified as Malvo, ran up to Parker and Adams. A police car
happened to pass the scene immediately after the shots were
fired. A police officer observed Malvo with a handgun. He
was going through the women's purses. The officer and another
eyewitness chased Malvo. Although he escaped, Malvo dropped
an "ArmorLite" gun catalogue during the chase. At trial, both
5
the officer and the other eyewitness identified Malvo as the
young man with the handgun who fled the scene. Additionally,
Malvo's fingerprints were on the "ArmorLite" gun catalogue he
dropped during the chase. The handgun Malvo carried that
evening, a .22 caliber stainless steel revolver, was found in
the stairwell of an apartment building that Malvo ran through
during the chase. Forensic tests determined that this .22
caliber revolver was the same gun used to shoot both LaRuffa
and Rashid.
The fifth shooting occurred in Baton Rouge, Louisiana on
September 23. Hong Im Ballenger ("Ballenger"), the manager of
the Beauty Depot store, closed the store for the evening. As
she was walking to her car, she was shot once in the head with
a bullet fired from a high velocity rifle. Ballenger died as
the result of the single shot. The bullet entered the back of
her head and exited through her jawbone. The wound caused
massive bleeding and compromised her airway. Ballistic tests
determined that the bullet fragments recovered from Ballenger
were fired from the Bushmaster rifle possessed by Muhammad
when he was arrested. An eyewitness saw a young man leave the
scene with Ballenger's purse. At trial, this young man was
identified as Malvo. Another eyewitness saw Malvo flee the
scene with Ballenger's purse and get into the Caprice.
6
The sixth shooting occurred in Silver Spring, Maryland on
October 3, 2002. At approximately 8:15 a.m., Premkumar A.
Walekar ("Walekar") was fueling his taxicab. He was shot once
with a bullet from a high velocity rifle. The bullet passed
through his left arm and then entered his chest, where it
broke two ribs, shredded portions of his lungs, and damaged
his heart. A physician, who was fueling her car next to
Walekar, attempted CPR but was unsuccessful. Ballistic tests
established that bullet fragments recovered from the Walekar
shooting were fired from the Bushmaster rifle possessed by
Muhammad when he was arrested.
The seventh shooting occurred in Silver Spring, Maryland
on October 3, 2002. At approximately 8:30 a.m., Sarah Ramos
("Ramos") was sitting on a bench in front of the Crisp & Juicy
Restaurant in the Leisure World Shopping Center. She was shot
once with a bullet from a high velocity rifle. The bullet
entered the front of her head and exited through her spinal
cord at the top of her neck. An eyewitness identified the
Caprice at the scene prior to the shooting. Bullet fragments
recovered from the Ramos shooting were fired from the
Bushmaster rifle possessed by Muhammad when he was arrested.
The eighth shooting occurred in Kensington, Maryland on
October 3, 2002. At approximately 10:00 a.m., Lori Lewis-
Rivera ("Lewis-Rivera") was vacuuming her car at the Shell gas
7
station on the corner of Connecticut Avenue and Knowles
Avenue. She was shot once in the back by a bullet from a high
velocity rifle as she vacuumed her car. An eyewitness
testified that he saw the Caprice in the vicinity of the gas
station approximately 20 minutes before the shooting. Bullet
fragments recovered from the Lewis-Rivera shooting were fired
from the Bushmaster rifle possessed by Muhammad when he was
arrested.
The ninth shooting occurred in Washington, D.C. on
October 3, 2002. At approximately 7:00 p.m., a police officer
stopped Muhammad for "running" two stop signs. The police
officer testified that the windows of the Caprice were heavily
tinted and that he could not see anyone else in the car. The
police officer gave Muhammad a verbal warning and let him go.
At approximately 9:15 p.m. on that day, Paschal Charlot
("Charlot") was shot in the chest as he crossed the
intersection of Georgia Avenue and Kalmia Road. This
intersection was about 30 blocks from where the police officer
stopped Muhammad. The bullet entered Charlot's chest and
shattered his collarbone and three ribs before lacerating his
lungs. Charlot died before emergency personnel arrived.
Eyewitnesses testified that they saw the Caprice at the scene
at the time of the shooting, and that the driver drove away
without its headlights on immediately after the shooting. It
8
had been parked in a space on the street with its trunk
positioned toward Georgia Avenue. One eyewitness testified
that he saw a flash of light from the Caprice at the time the
shot was fired. Ballistics tests determined that the bullet
fragments recovered from the Charlot shooting were fired from
the Bushmaster rifle possessed by Muhammad when he was
arrested.
The tenth shooting occurred in Fredericksburg, Virginia
on October 4, 2002. Caroline Seawell ("Seawell") had finished
shopping at a Michael's Craft Store, and was putting her bags
in her minivan, when she was shot once in the back by a bullet
from a high velocity rifle. The bullet severely damaged her
liver and exited through her right breast. Seawell survived
the shooting. An eyewitness testified that he saw the Caprice
in the parking lot at the time of the shooting. Ballistics
tests determined that the bullet fragments recovered from the
Seawell shooting were fired from the Bushmaster rifle
possessed by Muhammad when he was arrested.
The eleventh shooting occurred in Bowie, Maryland on
October 6, 2002. Tanya Brown ("Tanya") took Iran Brown
("Brown") to Tasker Middle School. As Brown was walking on
the sidewalk to the school, he was shot once in the chest by a
bullet from a high velocity rifle. Tanya decided not to wait
for emergency personnel and drove Brown to a health care
9
center. Brown's lungs were damaged, there was a large hole in
his diaphragm, the left lobe of his liver was damaged, and his
stomach, pancreas, and spleen were lacerated by bullet
fragments. Surgeons were able to save Brown's life and he
spent eight weeks recovering in the hospital.
Two eyewitnesses testified that they saw the Caprice in
the vicinity of Tasker Middle School the day before the
shooting and the morning of the shooting. One of these
eyewitnesses positively identified both Muhammad and Malvo in
the Caprice the morning of the shooting. They were seen in
the Caprice which was parked at an intersection with a line of
sight to the school. Following the shooting, police searched
the surrounding area and found a ballpoint pen and a shell
casing in the woods next to the school. The pen and shell
casing were located in an area that had been patted down like
a hunting blind. This blind offered a clear line of sight to
the scene of the shooting. Tissue samples from the pen
matched Muhammad's DNA. The shell casing had been fired by
the Bushmaster rifle possessed by Muhammad when he was
arrested, and tests determined that the bullet fragments
recovered from Brown were fired from that rifle.
In the woods, police also found the first communication
from Muhammad and Malvo. A tarot card, the one for death, was
found with handwriting that stated, "Call me God." On the
10
back of the card was handwriting that stated, "For you, Mr.
Police. Code: Call me God. Do not release to the Press."
The twelfth shooting, discussed above, was the murder of
Dean Meyers in Manassas, Virginia on October 9, 2002.
The thirteenth shooting occurred in Massaponax, Virginia
on October 11, 2002. Kenneth Bridges ("Bridges") was at an
Exxon gas station on Jefferson Davis Highway. He was shot
once in the chest by a bullet from a high velocity rifle. The
bullet damaged his lungs and heart, causing fatal internal
injuries. Two eyewitnesses testified that they saw the
Caprice at or near the Exxon station on the morning of the
shooting. Ballistics tests determined that the bullet
fragments recovered from the Bridges shooting were fired from
the Bushmaster rifle possessed by Muhammad when he was
arrested.
The fourteenth shooting occurred in Falls Church,
Virginia on October 14, 2002. Linda Franklin ("Franklin") and
her husband were shopping at a Home Depot store. As they
loaded their purchases in their car, Franklin was shot and
killed by a single bullet from a high velocity rifle. The
bullet entered the left side of her head, passed through her
brain and skull, and exited from the right side of her head.
An off-duty police officer testified that she saw Malvo
driving the Caprice in the vicinity of the shooting
11
immediately after it occurred. Tests determined that bullet
fragments recovered from the Franklin shooting were fired from
the Bushmaster rifle possessed by Muhammad when he was
arrested.
On October 15, the day after Franklin was murdered, a
Rockville, Maryland police dispatcher received a telephone
call in which the caller stated:
Don't say anything, just listen, we're the
people who are causing the killings in
your area. Look on the tarot card, it
says, "call me God, do not release to
press." We've called you three times
before trying to set up negotiations.
We've gotten no response. People have
died.
The dispatcher attempted to transfer the call to the Sniper
Task Force, but the caller hung up.
Three days later, on October 18, Officer Derek Baliles
("Officer Baliles"), a Montgomery County, Maryland Police
Information Officer, received a telephone call. The caller
told Officer Baliles to "shut up" and stated that he knew who
was doing the shootings, but wanted the police officer to
verify some information before he talked further. The caller
told Officer Baliles to verify information concerning a
shooting at a liquor store near "Ann Street." The caller gave
Officer Baliles the name and telephone number of a police
officer in Alabama. Officer Baliles confirmed the shootings
12
of Parker and Adams. The caller called Officer Baliles again.
Officer Baliles told him that he had verified the information
concerning the shootings of Parker and Adams. The caller then
said that he had to find more coins for the call and had to
find a telephone without surveillance and then hung up.
On the same day, William Sullivan ("Sullivan"), a priest
in Ashland, Virginia, received a telephone call from two
people. The first voice, a male, told him someone wanted to
speak with him. Sullivan testified that a second male voice,
told him that "the lady didn't have to die," and "it was at
the Home Depot." The second voice also told him about a
shooting at a liquor store in Alabama and then said, "Mr.
Policeman, I am God. Do not tell the press." The second
voice concluded by telling Sullivan to give this information
to the police.
The fifteenth shooting occurred in Ashland, Virginia on
October 19, 2002. Jeffrey Hopper ("Hopper") and his wife
stopped in Ashland to fuel their car and eat dinner. They
left the restaurant and were walking to their car when Hopper
was shot in the abdomen. Hopper survived the shooting, but
underwent five surgeries to repair his pancreas, stomach,
kidneys, liver, diaphragm, and intestines. In the woods near
the shooting, police found a hunting-type blind similar to the
one found at the Brown shooting. At the blind, police found a
13
shell casing, a plastic sandwich bag attached to a tree with a
thumbtack at eye level that was decorated with Halloween
characters and self-adhesive stars, and a candy wrapper.
Tests determined that the shell casing and bullet fragments
recovered from the Hopper shooting came from the Bushmaster
rifle possessed by Muhammad when he was arrested.
Surveillance videotapes identified Muhammad in a Big Lots
Store on October 19, 2002 near the shooting from which the
plastic sandwich bag and decorations were likely obtained.
The candy wrapper contained both Malvo's and Muhammad's DNA.
Police also found a handwritten message in the plastic
sandwich bag that read:
For you Mr. Police. "Call me God."
Do not release to the Press.
We have tried to contact you to start
negotiation . . . These people took our
call for a Hoax or Joke, so your failure
to respond has cost you five lives.
If stopping the killing is more
important than catching us now, then you
will accept our demand which are non-
negotiable.
(i) You will place ten million
dollar in Bank of america account . . .
We will have unlimited withdrawl at any
atm worldwide. You will activate the bank
account, credit card, and pin number. We
will contact you at Ponderosa Buffet,
Ashland, Virginia, tel. # . . . 6:00 am
Sunday Morning. You have until 9:00 a.m.
Monday morning to complete transaction.
"Try to catch us withdrawing at least you
will have less body bags."
(ii) If trying to catch us now more
important then prepare you body bags.
14
If we give you our word that is what
takes place.
"Word is Bond."
P.S. Your children are not safe
anywhere at anytime.
The note was not found until after the deadline had passed.
The day after Hopper was shot at the Ponderosa, an FBI agent
operating the "Sniper Tip Line" received a call from a young
male who said, "Don't talk. Just listen. Call me God. I
left a message for you at the Ponderosa. I am trying to reach
you at the Ponderosa. Be there to take a call in ten
minutes."
On October 21, 2002, an FBI agent received a call to the
FBI negotiations team which had been re-routed from the
Ponderosa telephone number referenced in the note left after
the Hopper shooting. A recorded voice stated:
Don't say anything. Just listen. Dearest
police, Call me God. Do not release to the
press. Five red stars. You have our terms.
They are non-negotiable. If you choose Option
1, you will hold a press conference stating to
the media that you believe you have caught the
sniper like a duck in a noose. Repeat every
word exactly as you heard it. If you choose
Option 2, be sure to remember we will not
deviate. P.S. – Your children are not safe.
The sixteenth shooting occurred in Aspen Hill, Maryland
on October 22, 2002. At approximately 6:00 a.m., Conrad
Johnson ("Johnson"), a bus driver for the Montgomery County
Transit Authority, was shot in the chest at the entrance to
15
his bus. Johnson remained conscious until rescue workers
arrived, but died at the hospital. A single high velocity
rifle bullet killed Johnson. The bullet entered his right
chest, and caused massive damage to his diaphragm, liver,
pancreas, kidneys, and intestines. Tests determined that the
bullet fragments recovered from the Johnson shooting were
fired from the Bushmaster rifle possessed by Muhammad when he
was arrested. A hunting-type blind, similar to those found at
the Brown and Hopper shootings, was found in the woods near
where Johnson was shot. A black duffle bag and a left-handed
glove were found. A hair from the duffle bag yielded DNA that
matched Muhammad's DNA. The police also found another plastic
sandwich bag which contained a note and self-adhesive stars.
Muhammad and Malvo were captured and arrested on October
24, 2002, by agents of the FBI at a rest area in Frederick
County, Maryland. They were asleep in the Caprice at the time
of their capture. Inside the Caprice, police found a loaded
.223 caliber Bushmaster rifle behind the rear seat. Tests
determined that the DNA on the Bushmaster rifle matched the
DNA of both Malvo and Muhammad. The only fingerprints found
on the Bushmaster rifle were those of Malvo.
The Caprice had been modified after Muhammad purchased it
from O'Kupski. The windows were heavily tinted. The rear
seat was hinged, providing easy access to the trunk from the
16
passenger compartment. The trunk was spray-painted blue. A
hole had been cut into the trunk lid, just above the license
plate. The hole was blocked by a right-handed brown glove
that matched the left-handed glove found in the woods near the
Johnson shooting. The trunk also had a rubber seal that
crossed over the hole.
Inside the Caprice, police found a global positioning
system (GPS) receiver, a magazine about rifles, an AT&T
telephone charge card, ear plugs, maps, plastic sandwich bags,
a rifle scope, .223 caliber ammunition, "walkie-talkies," a
digital voice recorder, a receipt from a Baton Rouge,
Louisiana grocery store dated September 27, 2002, an
electronic organizer, a plastic bag from a Big Lots Store, a
slip of paper containing the Sniper Task Force phone number,
and a list of schools in the Baltimore area.
Police also found LaRuffa's portable computer in the
Caprice. Muhammad had loaded software entitled "Microsoft
Streets and Trips 2002" onto this computer on September 29,
2002. In this program, there were various maps showing
particular routes and places marked with icons, some with a
skull and crossbones. Icons had been added to mark the places
where Walekar, Lewis-Rivera, Seawell, Brown, Meyers and
Franklin were shot. There was also a Microsoft Word file
17
titled "Allah8.rtf" that contained portions of the text
communicated to police in the extortion demands.
B. Proceedings Below
Subsequent to his arrest on October 24, 2002, Muhammad
was indicted by a grand jury on October 28, 2002, for the
capital murder of Meyers in the commission of an act of
terrorism, Code §§ 18.2-31(13) and 18.2-46.4; capital murder
of Meyers and at least one other person within a three-year
period, Code § 18.2-31(8); conspiracy to commit capital
murder, Code §§ 18.2-22 and 18.2-32; and illegal use of a
firearm in the commission of capital murder, Code § 18.2-53.1.
Muhammad waived his right to a speedy trial on November
13, 2002. Upon motion by Muhammad, and without objection by
the Commonwealth, venue was changed from the Circuit Court of
Prince William County to the Circuit Court of the City of
Virginia Beach.
From October 20 through November 17, 2003, Muhammad was
tried before a jury in the Circuit Court of the City of
Virginia Beach. The jury convicted Muhammad of all charges in
the grand jury indictments. In a separate sentencing
proceeding from November 17 through November 24, 2003, the
jury sentenced Muhammad to two death sentences for the capital
murder convictions, finding both the future dangerousness and
vileness aggravating factors. The jury also sentenced
18
Muhammad to 13 years in prison upon the remaining convictions.
At the conclusion of the sentencing proceeding, venue was
transferred back to the Circuit Court of Prince William
County.
On March 9, 2004, the trial court imposed the two death
sentences and the sentences of imprisonment as fixed by the
jury. A final sentencing order was entered on March 29, 2004.
Muhammad noted appeals of his convictions. On May 7,
2004, this Court certified Muhammad's appeals of his non-
capital convictions under Code § 17.1-409 for consolidation
with the appeals of his capital murder convictions and the
review mandated by Code § 17.1-313.
We will recite additional facts and incidents of trial as
necessary in context as specific assignments of error are
considered.
II. Preliminary Issues
A. Issues Abandoned or Waived
Muhammad advances 102 assignments of error in his appeal.
The Commonwealth maintains that Muhammad failed to
sufficiently argue in his brief assignments of error 33, 34,
43, 45, 47, 52, 53, 68, 70, 78, 79, 80, 82, 83, 88, and 96.
Rules 5:17(c)(4) and 5:27 require that a brief contain "[t]he
principles of law, the argument, and the authorities relating
to each assignment of error," and further require that "[w]ith
19
respect to each assignment of error, the principles, the
argument, and the authorities shall be stated in one place and
not scattered through the petition." In his reply brief,
Muhammad contests the Commonwealth's assertion only as to
assignments of error 43, 52, 78, 79, 80, 81, and 83. 2
Accordingly, assignments of error 33, 34, 45, 47, 53, 68, 70,
82, 88, and 96 are waived. Consequently, we will consider
only assignments of error 43, 52, 78, 79, 80 and 83 as being
in controversy.
Assignment of error 43 pertains to the admission of crime
scene and autopsy photographs. Assignment of error 52 refers
to testimony of Officer Cindy Martin concerning her
observations of "brain matter" at the scene of the Ramos
shooting. With respect to both of these assignments, there is
insufficient argument in the brief. Having been directed by
Muhammad to particular page citations where he claims to have
presented these arguments, we agree with the Commonwealth's
observation that Muhammad merely restates his assignment of
error and makes reference to pages in the appendix where his
trial court arguments can be found. We have previously held
that such a practice is improper and is insufficient to meet
the requirements of our Rules. Schmitt v. Commonwealth, 262
2
The Commonwealth did not claim that Muhammad waived
assignment of error 81.
20
Va. 127, 138, 547 S.E.2d 186, 194 (2001), cert. denied, 534
U.S. 1094 (2002). Failure to adequately brief an assignment
of error is considered a waiver. Powell v. Commonwealth, 267
Va. 107, 135, 590 S.E.2d 537, 554, cert. denied, ___ U.S. ___,
125 S.Ct. 86 (2004). Therefore, assignments 43 and 52 are
deemed waived.
The remaining assignments of error claimed by the
Commonwealth to be waived by lack of argument pertain to
unadjudicated criminal conduct evidence presented at the
bifurcated sentencing proceeding. Assignment of error 78
refers to evidence of the killing of Kenya Cook in Tacoma,
Washington. Assignment of error 79 refers to a shooting into
Temple Beth El Synagogue in Tacoma, Washington. Assignment of
error 80 refers to testimony about the presence of a .308
caliber rifle found pointing to a particular apartment in
Tacoma, Washington. Assignment of error 83 refers to evidence
of a sharpened spoon handle in Muhammad's cell in the Prince
William County jail.
For each of these assignments of error related to
unadjudicated criminal conduct, Muhammad cites pages in the
section of his brief entitled "Statement of Facts" and one
page in the "Argument" section of his brief. The references
in the "Statement of Facts" are to arguments made in the trial
proceeding. Even giving Muhammad the benefit of examining
21
additional pages of his brief not referred to as the location
of his argument, Muhammad does not make particularized
arguments in his brief concerning each of the categories of
evidence he finds objectionable, except for evidence of the
alleged escape attempt contained in assignment of error 81,
which the Commonwealth agrees was not waived. Assignments of
error 80 and 83 raise issues of lack of notice of presentation
of unadjudicated criminal conduct; however, there is no
argument of the question in the brief itself. Assignments of
error 78, 79, 80, and 83 are not sufficiently argued in the
brief. We will not consider them. Rule 5:17(c)(4); Rule
5:27; Elliott v. Commonwealth, 267 Va. 396, 422, 593 S.E.2d
270, 286 (2004), cert. denied, ___ U.S. ___, 125 S.Ct. 875
(2005); Williams v. Commonwealth, 248 Va. 528, 537, 450 S.E.2d
365, 372 (1994), cert. denied, 515 U.S. 1161 (1995).
B. Sufficiency of the Commonwealth's Capital Murder
Theories and of the Evidence to Support These Theories
We first address the dominant issue presented in this
case, namely the legal viability of the Commonwealth's
theories of capital murder and the sufficiency of the evidence
to support its theories. Muhammad's assignments of error 63–
69, 71-74, 97, and 102, present these issues. We review
questions of law, and mixed questions of law and fact,
utilizing a de novo standard of review. Quatannens v.
22
Tyrrell, 268 Va. 360, 365, 601 S.E.2d 616, 618 (2004), McCain
v. Commonwealth, 261 Va. 483, 489-90, 545 S.E.2d 541, 545
(2001).
In accordance with established principles of appellate
review, we state the facts in the light most favorable to the
Commonwealth, the prevailing party in the trial court. We
also accord the Commonwealth the benefit of all inferences
fairly deducible from the evidence. Riner v. Commonwealth,
268 Va. 296, 303-04, 601 S.E.2d 555, 558-59 (2004), Armstrong
v. Commonwealth, 263 Va. 573, 576, 562 S.E.2d 139, 140 (2002);
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d
534, 537 (1975).
There is no distinction in the law between the weight or
value to be given to either direct or circumstantial evidence.
The finder of fact is entitled to consider all the evidence,
without distinction, in reaching its determination.
Commonwealth v. Hudson, 265 Va. 505, 512-13, 578 S.E.2d 781,
785, cert. denied, 540 U.S. 972 (2003). Circumstantial
evidence is not viewed in isolation. While 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. at 514, 578 S.E.2d at 786. We will set aside
the judgment only if it is clearly wrong or unsupported by the
23
evidence. Powell v. Commonwealth, 268 Va. 233, 236, 602
S.E.2d 119, 120-21 (2004).
The jury found Muhammad guilty of capital murder under
two separate provisions of Virginia law: Code § 18.2-31(8) for
the "willful, deliberate, and premeditated killing of more
than one person within a three-year period;" and Code § 18.2-
31(13) for the "willful, deliberate and premeditated killing
of any person by another in the commission of or attempted
commission of an act of terrorism." Among the challenges
made, Muhammad argues that the trial court erred in permitting
a legally flawed "triggerman" theory to be presented to the
jury as a result of various rulings and instructions.
Muhammad further argues that, even under the Commonwealth's
theory, the evidence was insufficient to prove that he was the
so-called "triggerman." Also, Muhammad challenges the
sufficiency of the evidence to support his capital murder
conviction based upon acts of terrorism. His constitutional
challenges to the capital murder statute based upon terrorism
are addressed elsewhere in this opinion.
1. Capital Murder Conviction Based Upon
Murder of More Than One Person in Three Years
(a) Sniper Team Theory
The Commonwealth introduced the testimony of Sergeant
Major Mark Spicer ("Spicer") of the British Armed Forces as an
24
expert in sniper methodology. His testimony and the direct
and circumstantial evidence presented to the jury are more
than sufficient to support, beyond a reasonable doubt,
Muhammad's conviction for the capital murder of Dean Meyers
and others within three years.
Spicer testified that "sniping is the ability of two men
to go out and inflict injuries or kill people and more
importantly spread terror across a much larger force." While
acknowledging that a sniper can act alone or in a team of
three, he stated, "the basic unit for a sniper team . . . is
. . . a two-man unit." Spicer testified at length about the
distinct responsibilities of each member of a two-man sniper
unit. Essentially, one member of the team is the long-range
shooter occupying an obscured position with the opportunity to
shoot a particular victim. Because of the intensity and
discipline required to take advantage of the narrow window of
opportunity to take the long-range shot, the other member of
the team, the "spotter," informs the long-range shooter by
radio that the victim is coming within the zone of potential
fire and that other circumstances are ripe for the shot. The
"spotter" may ultimately give the order to shoot.
Spicer connected the evidence found by police
investigators in this case to the tools and methods ordinarily
used by a sniper team. The .223 caliber Bushmaster rifle used
25
in at least ten of the shootings, including Dean Meyers, is
equivalent to the M4 rifle used by military snipers.
Additionally, sniper teams use tools such as those found in
the Caprice: a bipod support system for support of the rifle;
holographic and telescopic scopes to aid sighting; GPS
equipment to locate and relocate a vantage point for the long-
range shot; "walkie-talkie" handheld radio sets for
communication; pocket recording equipment for recording data
in the dark, bungee cords for easy "break down" of the rifle
for transportation; maps; silencers.
Spicer also testified about the methodology of a sniper
team which was supported by the evidence in this case. Spicer
emphasized the constant training with the rifle to maintain
skills, the creation of a camouflaged location for firing, the
use of existing traffic to facilitate escape, and the "team"
approach with a "spotter" who is armed with a handgun and may
additionally participate in the assault by firing from close
range.
With regard to the Caprice, Spicer testified about the
alterations made to it to facilitate the methodology of the
sniper team. The rear firewall had been removed from the
Caprice to provide entry into the trunk from the passenger
compartment. The trunk compartment had been spray-painted a
26
dark color to minimize contrast and shadow to avoid detection
in the event the trunk was opened.
Finally, Spicer gave particular significance to the
peculiar hole placed in the back of the trunk lid that
enlarged the field of vision while minimizing the ability to
see the person in the trunk. He referred to this special
process as implementing the "castle principle" making
reference to ancient methods of protecting the castle while
minimizing danger to the shooter and maximizing the range of
fire.
The Commonwealth presented compelling evidence that such
a sniper team methodology was used by Muhammad and Malvo in
multiple shootings prior to and after the murder of Dean
Myers. Perhaps no one or two incidents could reasonably
confirm the use of this methodology by the two perpetrators of
this unique criminal enterprise. But in its entirety, the
weight of the direct and circumstantial evidence in the case
is sufficient to prove that Muhammad and Malvo acted together
as a sniper team.
(b) Jury Instructions on Multiple Homicide
Theory of Capital Murder
Muhammad was convicted under Code § 18.2-31(8), of the
willful, deliberate, and premeditated killing of Dean Meyers
and others within a three-year period. He maintains, "Only
27
the immediate perpetrator of a homicide, the one who fired the
fatal shot, and not an accessory before the fact or a
principal in the second degree, may be convicted of capital
murder." He claims that under the Commonwealth's theory of
the case, Muhammad could never be the "triggerman" as defined
in our cases.
It is well-established that in felony cases:
A principal in the first degree is the actual
perpetrator of the crime. A principal in the
second degree, or an aider or abettor as he is
sometimes termed, is one who is present,
actually or constructively, assisting the
perpetrator in the commission of the crime.
In order to make a person a principal in the
second degree actual participation in the
commission of the crime is not necessary. The
test is whether or not he was encouraging,
inciting, or in some manner offering aid in
the commission of the crime. If he was
present lending countenance, or otherwise
aiding while another did the act, he is an
aider and abettor or principal in the second
degree.
Jones v. Commonwealth, 208 Va. 370, 372-73, 157 S.E.2d 907,
909 (1967). A principal in the second degree "must share the
criminal intent of the actual perpetrator or be guilty of some
overt act." Hall v. Commonwealth, 225 Va. 533, 536, 303
S.E.2d 903, 904 (1983). That there may be more than one
principal in the first degree for a particular offense is
beyond dispute:
Where two people engage in criminal conduct
together, as where they participate in
28
striking and killing another, each participant
is a principal in the first degree in the
homicide. Likewise, where part of a crime is
committed in one place and another part is
committed in a different place, the author of
each part is a principal in the first degree.
1 Wharton's Criminal Law § 30 (15th ed. 1993).
Generally in Virginia, a principal in the second degree
is subject to the same punishment as the principal in the
first degree. Taylor v. Commonwealth, 260 Va. 683, 687-88,
537 S.E.2d 592, 594 (2000). However, with the exception of
capital murder prosecutions for a killing for hire, or a
killing pursuant to the direction or order of one who is
engaged in a continuing criminal enterprise, or a killing
pursuant to the direction or order of one who is engaged in
the commission of or attempted commission of an act of
terrorism, "an accessory before the fact or principal in the
second degree to a capital murder shall be indicted, tried,
convicted and punished as though the offense were murder in
the first degree." Code § 18.2-18. Accordingly, pursuant to
the charge of capital murder based upon killing of two or more
persons within a three-year period, the Commonwealth must
prove that Muhammad was a principal in the first degree.
The euphemism, "triggerman," is inadequate to describe
the breadth of criminal responsibility subject to the death
penalty in Virginia. Immediately and obviously, capital
29
murder cases are not confined to murders completed by the
instrumentality of a firearm. Recognizing this inadequacy,
our capital murder cases routinely use the term "immediate
perpetrator" as the appropriate descriptive term. The term is
not new, having been used as early as 1880 in our case law.
Mitchell v. Commonwealth, 74 Va. (33 Gratt.) 845, 868 (1880).
Muhammad argues in assignments of error 66 and 69 that
the trial court erred in giving instructions 4 (capital murder
finding instruction) and 9 (defining principals in the first
and second degree), and further argues in assignments of error
71 and 73 that the trial court erred in refusing to give his
proffered instruction J (concerning multiple killings) and L
(concerning the definition of a principal in the first and
principal in the second degree). Muhammad's quarrel with the
instructions is a function of his disagreement over the scope
of the concept of "immediate perpetrator" for the purposes of
the capital murder statutes. He further argues that the
instructions at issue confuse the concept of principal in the
first degree with the requirements of principal in the second
degree and undermine the concept of "aiding and abetting."
Instruction 4 required Muhammad to be a "princip[al] in
the first degree, as defined in Instruction No. 9" for the
jury to convict for capital murder. The pertinent part of
Instruction 9 states:
30
A principal in the first degree is the
immediate perpetrator of the offense.
Where two or more persons take a direct
part in inflicting fatal injuries, each joint
participant is an immediate perpetrator for
the purpose of proving capital murder.
The principal in the second degree is a
person who is present, aiding and abetting, by
helping in some way in the commission of the
crime. Presence and consent alone are not
sufficient to constitute aiding and abetting.
It must be shown the Defendant, John Allen
Muhammad, intended his word, gestures, signals
or actions to in some way, encourage, advise
or urge, or in some way help the person
committing the crime commit it . . . .
In Strickler v. Commonwealth, 241 Va. 482, 404 S.E.2d
227, cert. denied, 502 U.S. 944 (1991), we reviewed a capital
murder conviction wherein the "Commonwealth's theory of the
case was that Strickler and Henderson had acted jointly to
accomplish the actual killing" of the victim by crushing her
skull with a 69-pound rock. Id. at 494, 404 S.E.2d at 235.
The evidence was consistent with the Commonwealth's argument
that one of the two men held the victim immobile while the
other dropped or threw the rock on her head. Citing Coppola
v. Commonwealth, 220 Va. 243, 256-57, 257 S.E.2d 797, 806
(1979), cert. denied, 444 U.S. 1103 (1980), where we held that
a defendant who "jointly participated in [a] fatal beating"
was subject to conviction and punishment for capital murder,
we restated the rule of culpability for capital murder as
follows:
31
We adhere to the view that where two or more
persons take a direct part in inflicting fatal
injuries, each joint participant is an
"immediate perpetrator" for the purposes of
the capital murder statutes.
Strickler, 241 Va. at 495, 404 S.E.2d at 235. This rule has
been reaffirmed in several cases since Strickler. See Lenz v.
Warden, 265 Va. 373, 381, 579 S.E.2d 194, 199 (2003);
Remington v. Commonwealth, 262 Va. 333, 349-50, 551 S.E.2d
620, 630 (2001), cert. denied, 535 U.S. 1062 (2002); Williams,
248 Va. at 545, 450 S.E.2d at 376; Hancock v. Commonwealth, 12
Va. App. 774, 779-81, 407 S.E.2d 301, 304-05 (1991).
In Lenz and Remington, two criminal actors were immediate
perpetrators because they "jointly participated in the fatal
stabbing." Remington, 262 Va. at 350, 551 S.E.2d at 630.
Another category of multiple actors who may be immediate
perpetrators was established in Strickler. The Court held
that the evidence supported the Commonwealth's theory that one
actor held the victim while the other actor dropped a large
rock on her head. We observed that "it would have been
necessary that she be held down by one assailant while the
other lifted the rock and dropped it on her head." Strickler,
241 Va. at 494, 404 S.E.2d at 235. As established in
Strickler, conduct of two criminal actors may be such that
they jointly complete the criminal act. It is not a matter of
encouraging, advising, urging, or facilitating another in the
32
commission of the crime. It is the actual participation
together in a unified act that permits two or more persons to
be immediate perpetrators. In Strickler, the Commonwealth
advanced its theory concerning how the murder was
accomplished. Our review on appeal considered whether the
evidence supported the theory.
Similarly, we must consider the evidence in support of
the Commonwealth's theory of how Muhammad and Malvo acted
together in the murder of Dean Meyers. Spicer's expert
testimony, the evidence recovered from the Caprice, the
evidence from the 16 shootings, and the additional evidence
concerning Malvo and Muhammad's relationship and activities
support the Commonwealth's theory of the case. Muhammad and
Malvo and the Caprice were identified in the immediate
vicinity of Dean Meyers' murder approximately one hour before
it occurred. Immediately after the murder, Muhammad was
identified in the parking lot across the street from where
Meyers was shot. Muhammad was driving the Caprice in which he
and Malvo were later arrested. Ballistics tests determined
that the bullet that killed Meyers was shot from the .223
caliber Bushmaster rifle found in the Caprice with Muhammad
and Malvo when they were arrested. The Caprice was located in
a position providing a direct line of fire to accomplish the
murder. Significantly, the shot from the parking lot had to
33
cross nine lanes of traffic on a heavily traveled highway at
approximately 8:15 p.m. on a weekday evening. With the
relatively small portal offered by the hole in the trunk of
the Caprice and the obstacle presented by nine traffic lanes,
the evidence supports the Commonwealth's theory of a "shooter"
and a "spotter" and the direction by the spotter to shoot at
the opportune time. As in Strickler, we review the evidence
in the light most favorable to the Commonwealth to determine
if it is sufficient to support the Commonwealth's theory. 241
Va. at 485, 404 S.E.2d at 230. Upon review of that evidence,
we cannot say that the trial court was plainly wrong or
without evidence to support its judgment.
The jury instructions given by the trial court accurately
conveyed applicable law without confusion to the jury.
Furthermore, Instructions J and L offered by Muhammad did not
embrace a correct definition of immediate perpetrator and were
properly refused by the trial court.
The theory of the Commonwealth concerning multiple
immediate perpetrators acting as principals in the first
degree accurately encompasses Virginia law. The jury
instructions in question properly instructed the jury on the
law and the facts of the case.
2. Capital Murder in the Commission
of an Act of Terrorism
34
(a) Sufficiency of Evidence
Muhammad was also convicted of capital murder pursuant to
Code § 18.2-31(13) for the willful, deliberate, and
premeditated killing of Dean Meyers in the commission of an
act of terrorism as defined in Code § 18.2-46.4. Code § 18.2-
46.4 defines an "act of terrorism" as
an act of violence as defined in clause (i) of
subdivision A of § 19.2-297.1 committed with
the intent to (i) intimidate the civilian
population at large; or (ii) influence the
conduct or activities of the government of the
United States, a state or locality through
intimidation.
Code § 19.2-297.1 includes, among the acts of violence the
offenses of first and second degree murder, voluntary
manslaughter, malicious wounding, and robbery. Additionally,
Code § 18.2-18 provides that a person convicted of capital
murder under Code § 18.2-31(13) is not required to be a
principal in the first degree to the murder if the killing was
"pursuant to the direction or order of the one who is engaged
in the commission of . . . an act of terrorism."
Significantly, Muhammad does not contest the sufficiency
of evidence to support the charge that acts of violence
committed by him and Malvo were done with the intent to
"intimidate the civilian population at large" or to "influence
the conduct or activities of the government of the United
States, a state or locality through intimidation." Rather, he
35
challenges his conviction for capital murder based upon the
terrorism predicate by attacking the validity of the statute,
constitutionally and otherwise, and by challenging the
sufficiency of the evidence that he "directed" or "ordered"
Malvo with respect to the killing of Dean Meyers. We will
consider Muhammad's challenge to the validity of the statute
elsewhere in this opinion.
The Commonwealth argues that the evidence is sufficient
to support two separate evidentiary theories upon which
Muhammad's conviction for capital murder in the commission of
an act of terrorism is based. One theory is based upon
Muhammad committing the murder of Dean Meyers as a principal
in the first degree because he is an immediate perpetrator of
the crime. The second evidentiary theory is based upon
Muhammad giving a direction or order to Malvo to kill Dean
Meyers. Either or both theories are sufficient to sustain the
proof necessary to affirm Muhammad's conviction for capital
murder in the commission of an act of terrorism.
As stated above, the proof is sufficient to establish
beyond a reasonable doubt that Muhammad acted as a principal
in the first degree, as an immediate perpetrator, in the death
of Dean Meyers. The "sniper theory" advanced by the
Commonwealth is supported through Spicer's expert testimony,
the ample evidence of such a methodology, and our prior
36
decisions. As an immediate perpetrator of the death of Dean
Meyers in a murder that qualifies as an act of violence under
Code § 19.2-297.1, Muhammad was a principal in the first
degree in the "willful, deliberate, and premeditated killing
of [a] person . . . in the commission . . . of an act of
terrorism." Code § 18.2-31(13).
Additionally, the combined weight of direct and
circumstantial evidence is sufficient to sustain Muhammad's
conviction even if he is considered to have been a criminal
actor in the second degree who gave an order or direction to
Malvo to kill Dean Meyers. Malvo and Muhammad were seen in
the Caprice in the vicinity of Meyers' shooting approximately
one hour beforehand. The Caprice was the same vehicle in
which Muhammad and Malvo were arrested. It was altered to
provide access to the trunk from the inside and a portal for
firing a rifle through the trunk lid. Muhammad was
interviewed by police immediately after the shooting in a
parking lot across the street from where Meyers was shot.
Malvo was not seen at the parking lot. There was a direct
line of fire between the parking lot and the Sunoco station
where Meyers was shot. Between the parking lot and the site
where Meyers was shot were nine traffic lanes. The evidence
shows that Malvo and Muhammad possessed the .223 caliber
Bushmaster rifle, mittens with open fingers, a GPS receiver,
37
earplugs, maps, rifle scopes, "walkie-talkies," a voice
recorder, an electronic organizer, and other evidence
previously described. The evidence proves that the bullet
that killed Dean Meyers came from the .223 caliber Bushmaster
rifle in the possession of Muhammad and Malvo when they were
arrested. The evidence also contains direct or circumstantial
proof of instances where the two men committed similar crimes
together.
Muhammad and Malvo were seen nearby in the Caprice
immediately before the murder of Dean Meyers. Only Muhammad
was seen immediately afterward. The weight of the evidence
supports the conclusion that either Muhammad or Malvo fired
the fatal shot that killed Dean Meyers. If it was Muhammad,
he is a principal in the first degree, with or without the
sniper theory advanced by the Commonwealth. The evidence more
reasonably proves that Malvo was the shooter and was in the
converted trunk when Muhammad was interviewed in the parking
lot immediately after the murder.
The circumstances of this murder are consistent with the
expert testimony concerning a two-man sniper team. As Spicer
testified, the "spotter" sets up the shot at a position safe
from view yet within range of the target. In this case, the
relatively limited range of the shooter in the trunk of the
car requires split-second timing to successfully hit a target
38
that quickly comes into range and just as quickly moves out of
range. This abbreviated window of opportunity is made all the
more difficult by nine lanes of traffic passing between the
shooter and the target. According to Spicer, the job of the
spotter is to communicate with the shooter, give the order or
direction, and then to provide an undetected getaway.
Furthermore, the record is replete with evidence that
Muhammad directed and ordered Malvo in the entire criminal
enterprise. As the Commonwealth argued based upon evidence
presented:
It was Muhammad who brought Malvo to this
country from Jamaica. It was Muhammad who had
the military background in shooting and
snipering skills and who trained Malvo. It
was Muhammad who provided the weapons. It was
Muhammad who was determined to terrorize his
ex-wife's area of the country. It was Muhammad
who was the "father" and Malvo who was the
"son." All the evidence about their
relationship – from the Lighthouse Mission and
friends in Washington state to Muhammad's
cousin in Baton Rouge and the YMCA personnel
in Maryland – consistently showed Muhammad
directing and ordering Malvo's conduct.
Everyone who saw them together observed that
Malvo was extremely obedient to Muhammad, not
the other way around.
On this issue, the trial court held that there was
"overwhelming circumstantial evidence regarding [Muhammad's]
direction and ordering of Mr. Malvo." Upon review of the
evidence, we cannot say that the trial court was clearly wrong
39
or without evidence to support this conclusion. Powell, 268
Va. at 236, 602 S.E.2d at 120-21.
We hold that Muhammad was an immediate perpetrator and as
such was a principal in the first degree in the commission of
capital murder during the commission of an act of terrorism.
We further hold that the evidence proves that Muhammad gave a
direction or order sufficient to satisfy the requirements of
Code § 18.2-18 such that even if he were a criminal actor
ordinarily demonstrating culpability as a principal in the
second degree, he is nonetheless guilty of capital murder
under Code §§ 18.2-31(13) and 18.2-18.
(b) Jury Instructions on the
Terrorism Capital Offense
Muhammad maintains that it was error for the trial court
to give Instructions 5 and 6 and to refuse his Instructions K
and M. (Assignments of Error 67, 68, 72, 74). Assignment of
error 68 regarding instruction 6 has been waived for failure
to brief the issue. Upon review of the evidence and the
instruction, we hold that the trial court did not err in
granting instruction 5. With respect to Muhammad's proffered
instructions K and M, he states in his brief only that they
properly addressed the terrorism issues. There is no argument
concerning why it would be error to refuse them in light of
40
the other instructions given. We will not consider this
argument. Rule 5:17(c).
C. Alleged Inconsistent Prosecution Theories
The independently elected Commonwealth's Attorneys of
Prince William County and Fairfax County maintained
contemporaneous prosecutions of Muhammad and Malvo. In
Fairfax County, Malvo was prosecuted for the murder of Linda
Franklin wherein Malvo interposed an insanity defense. In
Prince William County, Muhammad was prosecuted for the murder
of Dean Meyers. Much of the same evidence was utilized in
each prosecution. In assignments of error 8, 100, and 101,
Muhammad argues that the Commonwealth violated principles of
due process "by simultaneously taking materially inconsistent
positions in the Muhammad case, where it claimed Muhammad
directed and controlled Malvo, and in the Malvo case where it
claimed that Malvo was a free agent." Muhammad further argues
that the Commonwealth should be judicially estopped from
maintaining prosecution theories in two cases based upon the
same evidence because the theories of prosecution are
"inconsistent" and "irreconcilable." We need not address the
legal arguments advanced by Muhammad because we hold that the
theories of prosecution by the two independent prosecutors
were not inconsistent.
41
Malvo sought to prove in his case in Fairfax County that
he was insane or "brainwashed" by Muhammad. Evidence was
successfully offered to rebut such claims. In the Fairfax
County prosecution, the Commonwealth offered expert testimony
that Malvo was "fully cognizant, conscious, deliberate, [and]
purposeful." The Commonwealth argued in Malvo's case that he
was a "bright, clever human being" who knew what he was doing
when he acted in concert with Muhammad. In the Prince William
County case against Muhammad, the Commonwealth presented
evidence that Muhammad was the "leader" and "teacher" who
trained and directed Malvo to perfect his sniper skills. A
successful rebuttal of Malvo's affirmative defense of insanity
is not inconsistent with a theory of prosecution that includes
Muhammad engaged in training and directing Malvo in their
sniper team activity. It is beyond peradventure that
businesses, sports teams, and military operations involve
training and direction without insanity of the participants as
an issue. The trial court did not err in rejecting Muhammad's
claim of inconsistent theories of prosecution.
III. Indictment and Grand Jury Process
Muhammad asserts in multiple assignments of error that
often overlap that there were fatal flaws in the indictment
process. (Assignments of Error 4, 6, 7, 9, 10, 14, 15, 17,
18, 19, 27). We will consider them topically.
42
A. Alleged Failure to Accuse Muhammad
as the "Triggerman"
Muhammad argues the Commonwealth failed to allege facts
necessary for a death sentence in the indictment because it
did not allege that he actually fired the shot that killed
Dean Meyers. He further alleges that it was error to deny his
motion for a bill of particulars to accomplish this end.
Also, he argues that the Commonwealth's notice of intent to
seek the death penalty does not cure this alleged legal flaw
in the indictment. Finally, he argues that the trial court
should have dismissed the indictment for its failure to indict
Muhammad for murder in the second degree rather than capital
murder because of lack of allegations that he was the
"triggerman."
These related allegations simply advance Muhammad's
argument that upon the facts of this case, only the person who
"pulls the trigger" is eligible for the death sentence under
Virginia law. As we have set forth, an immediate perpetrator
of the act is eligible for the death sentence. The trial
court did not err in recognizing this principle of law in its
rulings on these motions.
B. Failure to State Aggravating
Factors in the Indictment
Muhammad alleges that the capital murder indictments are
defective because they failed to recite aggravating factors
43
that would support a death sentence. He argues that pursuant
to Ring v. Arizona, 536 U.S. 584 (2002), aggravating factors
in support of the death penalty are the functional equivalent
of elements of the offense of capital murder. He further
alleges that it was error to refuse his request for a bill of
particulars specifying the aggravating factors upon which the
Commonwealth would rely. Finally, despite the fact that the
Commonwealth filed a notice of intent to seek the death
penalty based upon both aggravating factors of vileness and
future dangerousness, he argues that the Commonwealth's notice
did not cure the defect in the indictments.
Ring involved the statutory sentencing scheme in Arizona
where a death sentence may not legally be imposed unless at
least one aggravating factor is found to exist beyond a
reasonable doubt. Ring, 536 U.S. at 596. Additionally, the
Arizona statutes provided that the judge, without a jury, was
to make this determination. Id. at 592-93. The issue before
the Supreme Court of the United States was stated as follows,
"The question presented is whether that aggravating factor may
be found by the judge, as Arizona law specifies, or whether
the Sixth Amendment's jury trial guarantee, made applicable to
the States by the Fourteenth Amendment, requires that the
aggravating factor determination be entrusted to the jury."
Id. at 597. Citing the Court's prior opinion in Apprendi v.
44
New Jersey, 530 U.S. 466 (2000), the precise answer was
provided: "Because Arizona's enumerated aggravating factors
operate as 'the functional equivalent of an element of a
greater offense,' Apprendi, 530 U.S. at 494, n.19, the Sixth
Amendment requires that they be found by a jury." Ring, 536
U.S. at 609.
The Virginia statutory scheme does not suffer from the
infirmities found in Apprendi and Ring. In Virginia, if the
defendant elects a jury trial, the existence of one or both
aggravating factors of vileness or future dangerousness is
submitted to a jury. Muhammad recognizes that Virginia's
statutory scheme provides for jury determination of
aggravating factors; however, he argues that the indictments
in his case were defective for failure to set out the
aggravating factors upon which the Commonwealth would seek the
death penalty.
In Jones v. United States, 526 U.S. 227 (1999), the
Supreme Court reviewed a conviction under a federal statute
prosecuted in federal court. The Court stated, "under the Due
Process Clause of the Fifth Amendment and the notice and jury
trial guarantees of the Sixth Amendment, any fact (other than
prior conviction) that increases the maximum penalty for a
crime must be charged in an indictment, submitted to a jury,
and proven beyond a reasonable doubt." Id. at 243, n.6. The
45
Court in Apprendi quoted this statement and added, "The
Fourteenth Amendment commands the same answer in this case
involving a state statute." Apprendi, 530 U.S. at 476.
However, in a footnote to the opinion, the Court stated,
Apprendi has not here asserted a
constitutional claim based on the omission of
any reference to sentence enhancement or
racial bias in the indictment. He relies
entirely on the fact that the "due process of
law" that the Fourteenth Amendment requires
the States to provide to persons accused of
crime encompasses the right to a trial by jury
. . . and the right to have every element of
the offense proved beyond a reasonable doubt
. . . . That Amendment has not, however, been
construed to include the Fifth Amendment right
to "presentment or indictment of a Grand Jury"
that was implicated in our recent decision in
Almendarez-Torres v. United States, 523 U.S.
224 (1998). We thus do not address the
indictment question separately today.
Apprendi, 530 at 477, n.3. As if to emphasize the point, the
Court stated in a footnote to Ring,
Ring does not contend that his indictment was
constitutionally defective. See Apprendi, 530
U.S. at 477, n.3 (Fourteenth Amendment "has
not . . . been construed to include the Fifth
Amendment right to 'presentment or indictment
of a Grand Jury' ").
Ring, 536 U.S. at 597, n.4.
Muhammad concedes in his brief, "[w]e have acknowledged
that states are currently not bound by the federal
constitution to proceed in felony cases by way of indictment."
He then makes the argument that is now before this Court:
46
"Nevertheless, having chosen to establish a grand jury system
in Virginia, there is a federal due process right that demands
the state properly follow that scheme." We disagree with
Muhammad. A similar argument was made and rejected in
Pennsylvania v. Finley, 481 U.S. 551 (1987). In Finley,
Pennsylvania provided court appointed counsel for collateral
attacks upon conviction, a right not required by the
Constitution of the United States. The Court held that Finley
could not sustain a federal constitutional claim for deficient
performance of counsel in such collateral proceedings where
there was no federal constitutional right to counsel in the
first place. Id. at 558-59. Similarly, Muhammad has no
constitutional claim for failure to include aggravating
factors in the two capital murder indictments because
proceeding by indictment is not constitutionally required of
the states.
Additionally, in 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. Roach v. Commonwealth, 251 Va. 324,
340, 468 S.E.2d 98, 107, cert. denied, 519 U.S. 951 (1996),
Wilder v. Commonwealth, 217 Va. 145, 147, 225 S.E.2d 411, 413
(1976). In Goins v. Commonwealth, 251 Va. 442, 454, 470
S.E.2d 114, 123, cert. denied, 519 U.S. 887 (1996), we held
47
that an indictment reciting an offense under Code § 18.2-31
was sufficient to place the defendant on notice of the nature
and character of the offense charged. We noted that:
The capital murder indictment alleged that "on
or about October 14, 1994, in the City of
Richmond, Christopher Cornelius Goins did
feloniously and unlawfully commit capital
murder in that he did kill and murder Robert
Jones in a willful, deliberate and
premeditated killing of more than one person
as part of the same act or transaction."
Id. at 454 n.1, 470 S.E.2d at 123 n.1. We held that the
indictment in Goins was sufficient. Muhammad's indictments
were sufficient as well.
A defendant is not entitled to a bill of particulars as a
matter of right. Code § 19.2-230 provides that a trial court
"may direct the filing of a bill of particulars." The trial
court's decision whether to require the Commonwealth to file a
bill of particulars is a matter committed to its sound
discretion. Quesinberry v. Commonwealth, 241 Va. 364, 372,
402 S.E.2d 218, 223, cert. denied, 502 U.S. 834 (1991). Here,
the trial court denied Muhammad's motion for a bill of
particulars identifying the aggravating factors upon which the
Commonwealth would rely. After the trial court denied the
bill of particulars, the Commonwealth nonetheless filed a
notice of intent to seek the death penalty which fully placed
48
Muhammad on notice that the Commonwealth intended to prove
both future dangerousness and vileness as aggravating factors.
We hold that aggravating factors are not constitutionally
required to be recited in a capital murder indictment. We
hold that the indictments in this case were sufficient under
Virginia law. We hold that the purported violation of
Virginia's indictment provisions in this case does not rise to
the level of a federal constitutional claim. We hold that it
was not an abuse of discretion to refuse Muhammad's motion for
a bill of particulars. Finally, we hold that any error that
could have been committed by the failure to order a bill of
particulars was rendered harmless by the provision of the
information Muhammad sought in the Commonwealth's notice of
intent to seek the death penalty.
C. Alleged Defect in Indictment
Because of Disjunctive Language
In assignment of error 15, Muhammad asserts that the
indictment charging capital murder under the terrorism
predicate is defective because of the use of disjunctive
terms. The indictment in question follows the language of
Code § 18.2-46.4 which states in pertinent part:
"Act of terrorism" means an act of violence as
defined in clause (i) of subdivision A of
§ 19.2-297.1 committed with the intent to (i)
intimidate the civilian population at large;
or (ii) influence the conduct or activities of
49
the government of the United States, a state
or locality through intimidation.
Code § 18.2-46.4 (emphasis added). Muhammad claims that the
indictment is defective because it did not specify which of
the two intents Muhammad had at the time of the killing. His
argument is not based upon any constitutional claims; rather,
his argument is confined to state law issues.
The indictment charges a single offense and not two
separate offenses. The single offense can be satisfied upon
proof of either or both of two mens rea conditions. A
reasonable construction of the indictment as rendered by the
grand jury includes both. Here, the trial court permitted the
amendment of the indictment to more particularly express what
was already a reasonable construction of the meaning of the
indictment as delivered. The indictment was amended from "or"
to "and/or."
Previously, we considered a similar claim of defective
indictment based upon the use of the disjunctive, "or." In
Buchanan v. Commonwealth, 238 Va. 389, 398, 384 S.E.2d 757,
763 (1989), cert. denied, 493 U.S. 1063 (1990), the defendant
was charged with capital murder based upon the killing of more
than one person as a part of the same act or transaction.
Buchanan killed four people. We observed that:
The first indictment charged, in essence, that
Buchanan killed Buchanan, Sr. as part of the
50
same act or transaction in which he killed
J.J., Donnie, or, Mrs. Buchanan.
238 Va. at 396, 384 S.E.2d at 762. We held that this
indictment reasonably placed Buchanan on notice in the
following manner:
Under the first indictment, Buchanan was on
notice that he had to defend against a claim
that he killed Buchanan, Sr. and all three of
the other victims as part of the same act or
transaction; that he killed Buchanan, Sr. and
any two of the other victims as part of the
same act or transaction; or that he killed
Buchanan, Sr. and any one of the other victims
as part of the same act or transaction.
Id. at 397, 384 S.E.2d at 762.
Muhammad had notice in the indictment, as originally
found by the grand jury and as amended, that he was charged
with a single offense that could be proved by showing: (1) his
intent to intimidate the civilian population at large, or (2)
his intent to influence the conduct or activities of the
government of the United States, a state or locality through
intimidation; or (3) his intent to do both 1 and 2 above. The
trial court did not err in refusing to dismiss the terrorism
indictment.
D. Alleged Deficiencies in the
Composition of the Grand Jury
Muhammad argues that the process utilized in his
indictment was fatally flawed because the grand jury that
indicted him was "improperly constituted in violation of
51
Virginia Law and [his] rights to due process and equal
protection." Other than this conclusory statement and the
further statement that the process is "arbitrary and vague,"
Muhammad makes no constitutional argument in his brief in
support of his contentions. His argument is insufficient.
Rule 5:17(c). Furthermore, no constitutional argument was
raised in the trial court. Rule 5:25. We will not consider
this vague and uncertain constitutional challenge to the
composition of the grand jury.
Additionally, his statutory challenge is without merit.
Code §§ 19.2-191 through -205 govern the selection of regular
grand jurors. The record reveals that the grand jurors who
returned indictments against Muhammad were selected pursuant
to the following routine process. The clerk of the court
creates a list of individuals who have been called to serve as
petit jurors at least three times, but not in the immediately
preceding three years. From that list, a smaller list of 120
names is created. The list of 120 names is reviewed by all
the judges of the circuit. Questionnaires are sent to the
persons on the list. At each term of court, seven jurors are
randomly selected to serve as regular grand jurors. The chief
judge of the circuit reviews the questionnaires prior to the
first meeting of the grand jury. During his first meeting
52
with the grand jurors, the chief judge discusses their duties
with them and selects one of them to be the foreperson.
The procedure employed in this case complies with the
requirements outlined by statute that the grand jury be
composed of "persons 18 years of age or over, of honesty,
intelligence and good demeanor and suitable in all respects to
serve as grand jurors," Code § 19.2-194, and "a citizen of
this Commonwealth, eighteen years of age or over, and shall
have been a resident of this Commonwealth one year and of the
county or corporation in which the court is to be held six
months, and is in other respects a qualified juror." Code
§ 19.2-195.
Finally, Muhammad claims that the grand jurors "were not
properly rotated as required by Section 19.2-194." There is
no evidence to support his claim. The evidence does establish
that this grand jury was sworn to sit for a two month term in
October and November 2002. We hold that the evidence does not
sustain a claim that there were infirmities in the process,
selection, or make-up of the grand jury that indicted
Muhammad.
IV. Constitutional Challenge
to the Terrorism Statute
53
In assignment of error 17, Muhammad maintains that the
terrorism statutes, Code §§ 18.2-31(13) and 18.2-46.4 are
unconstitutionally overbroad and vague. We disagree.
As the Supreme Court stated in Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982):
In a facial challenge to the overbreadth and
vagueness of a law, a court's first task is to
determine whether the enactment reaches a
substantial amount of constitutionally
protected conduct. If it does not, then the
overbreadth challenge must fail. The court
should then examine the facial vagueness
challenge and, assuming the enactment
implicates no constitutionally protected
conduct, should uphold the challenge only if
the enactment is impermissibly vague in all of
its applications. A plaintiff who engages in
some conduct that is clearly proscribed cannot
complain of the vagueness of the law as
applied to the conduct of others. A court
should therefore examine the complainant's
conduct before analyzing other hypothetical
applications of the law.
Id. at 494-95. See Chicago v. Morales, 527 U.S. 41, 52
(1999). The First Amendment doctrine of overbreadth requires
proof that a law "punishes a 'substantial' amount of protected
free speech, 'judged in relation to the statute's plainly
legitimate sweep.' " Virginia v. Hicks, 539 U.S. 113, 118
(2003) (citing Broadrick v. Oklahoma, 413 U.S. 601, 615
(1973)). While Muhammad utilizes the term "overbroad," he
offers no evidence or argument in support of the requirements
54
of this doctrine. Instead, Muhammad confines his argument to
vagueness.
A successful challenge to the facial validity of a
criminal statute based upon vagueness requires proof that the
statute fails to provide notice sufficient for ordinary people
to understand what conduct it prohibits, or proof that the
statute "may authorize and even encourage arbitrary and
discriminatory enforcement." Morales, 527 U.S. at 56;
Kolender v. Lawson, 461 U.S. 352, 357 (1983). But "[o]ne to
whose conduct a statute clearly applies may not successfully
challenge it for vagueness." Parker v. Levy, 417 U.S. 733,
756 (1974); Commonwealth v. Hicks, 267 Va. 573, 580–81, 596
S.E.2d 74, 78 (2004); accord Gibson v. Mayor of Wilmington,
355 F.3d 215, 225 (3d Cir. 2004); Fuller v. Decatur Public
School Board of Education School District 61, 251 F.3d 662,
667 (7th Cir. 2001); Joel v. City of Orlando, 232 F.3d 1353,
1359-60 (11th Cir. 2000); United States v. Tidwell, 191 F.3d
976, 979 (9th Cir. 1999); United States v. Hill, 167 F.3d
1055, 1063-64 (6th Cir.), cert. denied, 528 U.S. 872 (1999);
Woodis v. Westark Community College, 160 F.3d 435, 438-39 (8th
Cir. 1998); United States v. Corrow, 119 F.3d 796, 803 (10th
Cir. 1997), cert. denied, 522 U.S. 1133 (1998); Love v.
Butler, 952 F.2d 10, 14 (1st Cir. 1991); Hastings v. Judicial
Conference of the United States, 829 F.2d 91, 107 (D.C. Cir.
55
1987), cert. denied, 485 U.S. 1014 (1988); Hill v. City of
Houston, 789 F.2d 1103, 1127 (5th Cir. 1986), aff'd, 482 U.S.
451 (1987); Gallaher v. City of Huntington, 759 F.2d 1155,
1160 (4th Cir. 1985).
Capital murder pursuant to Code § 18.2-31(13) is defined
as the "willful, deliberate and premeditated killing of any
person by another in the commission of or attempted commission
of an act of terrorism as defined in Code § 18.2-46.4."
"Act of terrorism" means an act of violence as
defined in clause (i) of subdivision A of
§ 19.2-297.1 committed with the intent to (i)
intimidate the civilian population at large;
or (ii) influence the conduct or activities of
the government of the United States, a state
or locality through intimidation.
Code § 18.2-46.4. The "act of violence" reference to Code
§ 19.2-297.1 includes a list of certain specific aggravated
felonies including murder, voluntary manslaughter, mob-related
felonies, malicious assault or bodily wounding, robbery,
carjacking, sexual assault and arson. The combination of
these statutes defines criminal conduct that constitutes a
willful, deliberate and premeditated killing in the
commission, or attempted commission, of one of the designated
felonies with the intent to intimidate the civilian population
or influence the conduct of government through intimidation.
Additionally, under Code § 18.2-18 the General Assembly
extended the reach of criminal conduct subject to the death
56
penalty to include "a killing pursuant to the direction or
order of one who is engaged in the commission of or attempted
commission of an act of terrorism under the provisions of
subdivision 13 of § 18.2-31."
Muhammad raises questions about the definition of
"intimidation," "civilian population at large," and "influence
the conduct or activities of government." He suggests that
failure to statutorily define these phrases renders the
statutes unconstitutional. He further complains that "no
distinction can be drawn between the newly defined crime and
any 'base offense' which carries with it the same hallmarks of
intimidation and influence," and that this allows "unguided
and unbridled law enforcement discretion." Muhammad further
maintains that extending the scope of the statute to reach
those who order or direct a killing in the commission of or
attempted commission of an act of terrorism somehow violates
what he calls the "triggerman rule." In a particularly
exaggerated statement, Muhammad claims that extending the
scope of the statute "allows almost any violent criminal act
to be classified as terrorism and thereby rendering any
individual charged eligible for the death penalty." We
disagree with each of Muhammad's contentions.
By referencing established criminal offenses as acts of
violence subject to the statutory scheme, the legislature
57
included offenses with previously defined elements and mens
rea requirements. Additionally, the term "intimidate" has
been defined by case law. See Sutton v. Commonwealth, 228 Va.
654, 663, 324 S.E.2d 665, 669 (1985) (defining intimidation as
unlawful coercion; extortion; duress; putting in fear).
We have no difficulty understanding that "population at
large" is a term that is intended to require a more pervasive
intimidation of the community rather than a narrowly defined
group of people. Examples are illustrative. When used in a
descriptive sense referring to a prison, the prison
"population at large" consists of everyone in the prison
rather than a small subset of prisoners. Lewis v. Casey, 518
U.S. 343, 358 (1996); Cleavinger v. Saxner, 474 U.S. 193, 210
(1985). In a case involving the exclusion of certain people
from capital juries, the term "population at large" meant the
community from which the jury pool could be chosen. Lockhart
v. McCree, 476 U.S. 162, 179 (1986). It is significant to
note that Muhammad offered a similar understanding of the term
when he argued below that all potential jurors in his case
were victims. We do not believe that a person of ordinary
intelligence would fail to understand this phrase.
Similarly, we do not believe that a person of ordinary
intelligence needs further definition of the phrase "influence
the conduct or activities of government." Muhammad's argument
58
on this point is essentially a strained "legislative history"
argument. Quoting former Attorney General Jerry Kilgore's
press releases, Muhammad claims that the statutes are designed
"to address al-Qaeda type attacks – attacks motivated by a
greater political purpose." Even if a press release could
qualify as legislative history, it is quite a leap to impute,
from the press releases of an Attorney General, the intent of
the General Assembly. We find the intent of the General
Assembly primarily in the words it employs in enacting
legislation. Nothing in the words of these statutes evinces
an intent to limit its application to criminal actors with
political motives.
Muhammad maintains that there is no distinction between
the "base offense" and the capital offense based upon
terrorism. What he appears to be arguing is that the
terrorism statute is unnecessary on the one hand because a
killing in the commission of one of the enumerated violent
acts could result in the death penalty anyway, and on the
other hand, its reach is extended too far by including those
who order or direct such killings. Clearly, the General
Assembly has the power to define criminal conduct even if
statutes overlap in coverage. Whether a defendant can be
simultaneously or successively charged with overlapping
offenses implicates other questions not presented here.
59
Muhammad's quarrel with the expansion of the potential
imposition of the death penalty to those who order or direct
another in a killing in the commission of or attempted
commission of an act of terrorism is a policy question well
within the purview of legislative power so long as it is not
otherwise unconstitutional. In that respect, Muhammad argues
in assignment of error 18 that the provisions of Code § 18.2-
18 allow the death penalty for a defendant with no
demonstrated intent to kill the victim. Muhammad incorrectly
characterizes the extension of the scope of the statute to
reach traditional "aiders and abettors." The provisions of
Code § 18.2-18 do not extend to "aiders and abettors;" rather,
it extends only to those who "direct" or "order" the killing.
The criminal actor who "orders" or "directs" the killing is
not unlike the criminal actor who hires another to kill and is
potentially subject to the death penalty under Code § 18.2-
31(2). The criminal actor who "orders" or "directs" the
killing shares the intent to kill with the one who carries out
the murder. The provisions of Code § 18.2-18 do not have the
effect imagined by Muhammad.
Muhammad's argument concerning vagueness does not focus
on his conduct. Indeed, Muhammad does not claim in his brief
that his actions and those of Malvo were not acts of terrorism
under the statutory provisions. Rather, Muhammad
60
hypothetically poses questions about the applicability of the
statute in other circumstances. As discussed above, the
statutes provide notice sufficient for ordinary people to
understand what conduct they prohibit, and do not authorize
and/or encourage arbitrary and discriminatory enforcement.
More importantly, Muhammad cannot and does not maintain that
the statutes do not give him notice that his conduct and
Malvo's conduct was prohibited. Nor does Muhammad allege that
he has been subject to arbitrary or discriminatory enforcement
of the statutes. One who engages in conduct that is clearly
proscribed and not constitutionally protected may not
successfully attack a statute as void for vagueness based upon
hypothetical conduct of others. Hoffman Estates, 455 U.S. at
494-95.
V. Alleged Conflict Between Sentencing Provisions
Muhammad argues in assignment of error 27 that he may not
be sentenced to death because of an "absolute and un-
rectifiable conflict" between the capital murder statute (Code
§ 18.2-31(13)), and the terrorism statute (Code § 18.2-46.4,
et seq.). Capital murder is a Class 1 felony punished by life
imprisonment or death. The terrorism statute provides for a
penalty as a Class 2 felony "if the base offense of such act
of terrorism may be punished by life imprisonment, or a term
of imprisonment of not less than twenty years." Code § 18.2-
61
46.5. Muhammad argues that there is "no discernable
distinction whatsoever between murder committed under the
terrorism provision and murder committed under the capital
murder provision." He maintains that he may not be subject to
the greater punishment.
The Supreme Court of the United States resolved this same
issue in a case involving sentencing provisions under two
statutes that encompassed the same criminal act. Holding that
the prosecutor had discretion to choose which statute to base
the prosecution upon, the Court stated:
The provisions in issue here, however,
unambiguously specify the activity proscribed
and the penalties available upon conviction.
That this particular conduct may violate both
Titles does not detract from the notice
afforded by each. Although the statutes
create uncertainty as to which crime may be
charged and therefore what penalties may be
imposed, they do so to no greater extent than
would a single statute authorizing various
alternative punishments. So long as
overlapping criminal provisions clearly define
the conduct prohibited and the punishment
authorized, the notice requirements of the Due
Process Clause are satisfied.
This Court has long recognized that when
an act violates more than one criminal
statute, the Government may prosecute under
either so long as it does not discriminate
against any class of defendants.
United States v. Batchelder, 442 U.S. 114, 123-24 (1979).
Muhammad makes no constitutional argument in his brief on this
issue. He merely recites that there is a conflict. He does
62
not argue that there is ambiguity in either statute nor does
he argue that application of the statute discriminates against
any class of defendants. The trial court did not err in
denying Muhammad's motion to preclude a death sentence on this
basis.
VI. Right to Self-Representation
Muhammad alleges in briefing assignment of error 35 that
the trial court violated Muhammad's "Sixth Amendment right to
self-representation by unduly interfering with his ability to
consult with standby counsel."
The right of a criminal defendant to represent himself is
found in the Sixth Amendment to the Constitution of the United
States. Faretta v. California, 422 U.S. 806, 807, 836 (1975).
The right is not without limitations and conditions. Only
after the jury panel had been sworn, did Muhammad request
permission to represent himself. At that time, Muhammad did
not have a constitutional right to proceed pro se. As the
United States Court of Appeals for the Fourth Circuit has
held,
we think it is reasonable, and entirely
compatible with the defendant's constitutional
rights, to require that the right of self-
representation be asserted at some time
"before meaningful trial proceedings have
commenced," and that thereafter its exercise
rests within the sound discretion of the trial
court.
63
United States v. Lawrence, 605 F.2d 1321, 1325 (4th Cir.
1979), cert. denied, 444 U.S. 1084 (1980). Nonetheless, after
extensive questioning of Muhammad concerning his decision and
appropriate admonition concerning the risks involved and the
manner in which it would be permitted, the trial court
exercised its discretion and allowed Muhammad to represent
himself. The trial court directed his lawyers to be "standby
counsel." The trial court informed Muhammad that "standby
counsel" could sit at counsel table with him, and "you can
perhaps upon occasion ask them questions, but I don't expect
you to ask them every question that's being formulated. That
would, I think, unduly hinder the trial process."
After two days of self-representation, Muhammad changed
his mind and requested that his "standby counsel" resume their
previously assigned role. Now Muhammad complains about the
limitations and restrictions placed upon him during those two
days. The only issue presented in this assignment of error is
stated by Muhammad as follows: "whether the court improperly
prohibited Muhammad from consulting with his standby counsel."
Soon after Muhammad began representing himself, the
Commonwealth objected to the extensive interaction between
Muhammad and standby counsel. The Commonwealth complained
that standby counsel was actually acting as co-counsel in
contravention of the trial court's instructions. An exchange
64
between the trial court and standby counsel appears to confirm
the Commonwealth's concern. Standby counsel stated:
Mr. Muhammad has asked about things such as
objections – what is hearsay? What is a
leading question? and so on. And so he's
inquired about that and the timing of
objections and so on, which as the court knows
is obviously crucial or else it's waived.
That's the context of it. We'd say hearsay,
and he knew the argument to make to Your Honor
and same thing as far as leading questions.
It is apparent from this exchange that standby counsel was
doing far more than responding to inquiries made by Muhammad.
Rather, as they admit, they were prompting him to make
objections during the course of testimony.
The trial court indicated that Muhammad would not be
permitted to have "hybrid" representation where standby
counsel becomes co-counsel by extensive participation and
direction of the defense. "Faretta does not require a trial
judge to permit 'hybrid' representation." McKaskle v.
Wiggins, 465 U.S. 168, 183 (1984). As Muhammad acknowledges
in his brief, "[t]he court's solution to the perceived problem
was to move standby counsel down the table, away from Mr.
Muhammad, something that Mr. Muhammad had suggested."
Muhammad does not now complain that he could not have taken an
extra step or two to consult with counsel. He cannot be heard
to complain of a solution he proposed. There is no specific
ruling of the trial court that Muhammad identifies as error.
65
Muhammad points to no objection made by him concerning the
trial court's direction or handling of the issue. The record
reveals that Muhammad expressly agreed with the trial court's
instructions to standby counsel. Upon review of the specific
arguments made by Muhammad and the relevant portions of the
record he identifies, we hold that the trial court did not
abridge his rights under the Sixth Amendment to properly
consult with standby counsel.
VII. Refusal to Permit Expert Healthcare
Testimony at Sentencing
The trial court granted Muhammad's motion under the
provisions of Code § 19.2-264.3:1 for the appointment of
mental health experts to assist him in his defense.
Thereafter, Muhammad gave notice of his intent to use expert
psychiatric testimony at the sentencing phase to prove
mitigating factors. In response, the Commonwealth moved the
trial court for an order appointing an expert for the
Commonwealth pursuant to Code § 19.2-264.3:1(F).
At the hearing on the Commonwealth's motion for the
appointment of an expert, the trial court granted Muhammad's
request that the Commonwealth's expert be prohibited from
inquiring into circumstances of the crimes alleged or
Muhammad's relationship with Malvo. This restriction was
based upon Muhammad's declaration that he did not intend to
66
present evidence that he acted under extreme mental
disturbance or failed to appreciate the criminality of his
conduct. At that time, the trial court advised Muhammad that
if he refused to cooperate with the Commonwealth's expert, it
could result in the exclusion of Muhammad's expert's
testimony. Muhammad acknowledged to the trial court that he
understood the requirements and the potential consequences for
noncompliance.
Nonetheless, on October 8, 2003, Muhammad refused to be
interviewed by the Commonwealth's expert without his counsel
present. Also, he objected to the expert's use of a video
camera during the interview. After a hearing on the matter,
the trial court permitted counsel to be present at the
interview by the Commonwealth's expert and further ruled that
the interview could be recorded by video camera. Nonetheless,
the following day, Muhammad refused to meet with the
Commonwealth's expert under any circumstances.
In response, the Commonwealth moved the trial court under
the provisions of Code § 19.2-264.3:1 to prohibit Muhammad
from presenting expert testimony from his court appointed
experts at sentencing. At the hearing, the trial court again
directly addressed Muhammad concerning the potential effect of
his refusal to cooperate with the Commonwealth's expert.
Muhammad indicated that he understood and that he had made the
67
choice not to cooperate. The trial court exercised its
discretion under the statute and barred Muhammad from
presenting expert testimony from his court appointed experts
regarding mitigating factors at the sentencing proceeding.
Despite the trial court's ruling, at the conclusion of
the evidence in the guilt phase of the trial, Muhammad moved
the trial court to permit him to present expert testimony from
one of his court appointed mental health experts, Dr.
Cunningham, in the sentencing phase. Muhammad represented
that Dr. Cunningham would not testify based upon anything he
learned from his examination; rather, he would testify based
upon statistical analyses about prison populations.
Apparently, this testimony would be offered as relevant to the
question of Muhammad's future dangerousness. The Commonwealth
objected, but the trial court overruled the Commonwealth's
objection at that time and invited Muhammad to present Dr.
Cunningham's testimony outside the presence of the jury for a
determination of its admissibility. Muhammad did not do so.
After all of the evidence had been presented to the jury
in the sentencing phase and after both sides rested their
case, Muhammad announced that he would present a proffer from
Dr. Cunningham. An affidavit from Dr. Cunningham was
thereafter submitted to the trial court.
68
In assignments of error 29, 75, and 76, Muhammad attacks
various rulings of the trial court on this matter. Muhammad
argues that it was an abuse of discretion for the trial court
to deny him the opportunity to present expert testimony. He
further states, in conclusory fashion, that the denial
violated his constitutional rights under the Fifth, Sixth,
Eighth, and Fourteenth Amendments. He further complains that
he was not able to present lay testimony in mitigation.
Finally, he argues that, because of the notice of intent to
use expert testimony in a limited fashion, the Commonwealth
was not entitled to an expert evaluation of Muhammad.
Considering the Commonwealth's right to an evaluation of
Muhammad, the trial court found, and Muhammad agreed, that the
issue of notice of use of evidence in a limited fashion was
not raised before the trial court ruled on the matter. It was
raised for the first time in post trial proceedings. The
trial court ruled that it was waived. Objections must be
stated with reasonable certainty at the time of the trial
court's ruling in order to be preserved for appellate review.
This objection will not be considered on appeal. Rule 5:25.
Consideration of Muhammad's arguments on these matters
requires a clear understanding of what the trial court ruled
concerning these issues. The trial court ruled that Muhammad
could not present expert testimony on mitigation factors at
69
sentencing because of his refusal to abide by the trial
court's order to submit to an evaluation by the Commonwealth.
The trial court did not bar the presentation of non-expert
testimony on this issue. Thereafter, Muhammad sought the
ability to present limited expert testimony purporting not to
be based upon expert interviews. The Commonwealth objected.
The trial court overruled the Commonwealth's objection and
gave Muhammad the opportunity to present evidence out of the
presence of the jury that would allow the trial court to rule
on its admissibility. Muhammad did not take advantage of this
invitation. Only after all the evidence was presented at the
sentencing phase and both parties rested their case did
Muhammad offer an affidavit as a proffer of Dr. Cunningham's
testimony. He may not be heard to complain about the
exclusion of Dr. Cunningham's limited testimony when he did
not give the trial court the contemporaneous opportunity to
evaluate its admissibility. Rule 5:25.
Nothing in the trial court's ruling prohibited non-expert
testimony on mitigating factors in the sentencing proceeding.
Muhammad cites Lovitt v. Warden, 266 Va. 216, 257, 585 S.E.2d
801, 825-26 (2003), cert. denied, 541 U.S. 1006 (2004), and
suggests that somehow that case further prohibits such
testimony in the absence of expert testimony. Nothing in
Lovitt suggests such a bar.
70
Considering the main thrust of Muhammad's argument, we
turn our attention to the claim that the trial court abused
its discretion, and that its decision barring expert testimony
on mitigation factors and the statutes that permit such a
decision are unconstitutional. Muhammad makes no argument on
brief that the statutes are overbroad or vague. His only
argument is that their application to him under these
circumstances violated various constitutional rights.
The trial court provided Muhammad with the experts he
requested at state expense. The trial court granted
Muhammad's request that his counsel be present during any
evaluation by the Commonwealth. The trial court engaged
Muhammad directly in court on multiple occasions concerning
the potential consequences of his failure to cooperate with
the evaluation. On these occasions, Muhammad affirmatively
expressed his understanding and further acknowledged that he
freely decided not to cooperate. After the trial court made
its ruling, it even considered permitting expert mitigation
testimony not based upon his own expert's interview with him.
Muhammad did not avail himself of the opportunity.
Muhammad is correct that limiting the evidence that a
criminal defendant may present in his defense implicates
numerous constitutional rights. What Muhammad fails to
appreciate is that he may, by his knowing and informed
71
decisions, waive such rights. These rights may be as
venerated as the right to a jury, the right to counsel, the
right against self-incrimination, and the right to exclusion
of evidence seized in an unconstitutional manner. As the
Supreme Court recently noted, "Waiver of the right to counsel,
as of constitutional rights in the criminal process generally,
must be a 'knowing, intelligent ac[t] done with sufficient
awareness of the relevant circumstances.' " Iowa v. Tovar,
541 U.S. 77, 80 (2004) (quoting Brady v. United States, 397
U.S. 742, 748 (1970)). We have no difficulty including the
right to present mitigating testimony within the panoply of
constitutional rights that may be waived by the accused.
Upon review of the record, we agree with the trial court
that Muhammad's decision not to cooperate was knowingly and
intelligently made. The real issue presented is whether the
trial court's exercise of discretion was reasonable under the
circumstances.
The detailed and balanced statutory scheme provided by
Code § 19.2-264.3:1 anticipates decisions made by the accused
and the Commonwealth regarding expert mental health
evaluations and testimony regarding sentencing issues in a
capital murder trial. One of those circumstances arises when
the defendant gives notice of intent to present certain types
of testimony at sentencing. In response, the Commonwealth may
72
request an evaluation of the defendant. The statute
explicitly provides that the trial court must "advise the
defendant on the record in court that a refusal to cooperate
with the Commonwealth's expert could result in exclusion of
the defendant's expert evidence." Code § 19.2-264.3:1(F)(1).
The statute explicitly provides the remedy for lack of
cooperation: "the court may admit evidence of such refusal or,
in the discretion of the court, bar the defendant from
presenting his expert evidence." Code § 19.2-264.3:1(F)(2).
The Supreme Court has recognized that the prosecution has
the right to a fair rebuttal of mental health evidence
presented by the defendant. In Buchanan v. Kentucky, 483 U.S.
402 (1987), the defendant challenged the introduction of
evidence from a psychiatric report prepared upon joint motion
of the defendant and the prosecution. The Court stated, "if a
defendant requests such an evaluation or presents psychiatric
evidence, then, at the very least, the prosecution may rebut
this presentation with evidence from the reports of the
examination that the defendant requested." Id. at 422-23.
We agree with the Commonwealth's characterization of the
circumstances presented on this question. "By his own
deliberate conduct, the defendant sought to gain an unfair
benefit by obtaining an evaluation that the Commonwealth would
be powerless to contest at trial either by meaningful cross-
73
examination or by presenting its own expert testimony. The
trial court's remedy thus was protective of the interests of
all parties in a fair trial and was not punitive." The trial
court's ruling was not unreasonable, especially considering
that it was willing to consider expert testimony from Dr.
Cunningham not based upon interviews with Muhammad, but
Muhammad did not avail himself of the opportunity. We hold
that the trial court did not abuse its discretion by excluding
Muhammad's expert witness testimony concerning mitigation
factors at sentencing.
VIII. Discovery Issues
In assignments of error 1, 2, 3, 22, 98, and 99, Muhammad
attacks the constitutionality of criminal discovery rules in
Virginia, specific rulings of the trial court regarding
discovery, the refusal of the trial court to permit ex parte
application for expert witness assistance, and the refusal to
grant a new trial upon "after-discovered" evidence of an
alleged exculpatory nature. There is no merit to any of
Muhammad's contentions.
Muhammad's claim that criminal discovery rules in
Virginia are unconstitutional because they provide for limited
discovery, has been previously decided. Bailey v.
Commonwealth, 259 Va. 723, 736, 529 S.E.2d 570, 577, cert.
denied, 531 U.S. 995 (2000); Walker v. Commonwealth, 258 Va.
74
54, 63, 515 S.E.2d 565, 570-71 (1999), cert. denied, 528 U.S.
1125 (2000). We see no reason to revisit this issue.
Additionally, the trial court did not err in denying
certain specific requests for discovery:
a. The trial court was correct in denying Muhammad's
request 1(b) seeking "the specific questions, comments
or statements of any person involved in the
conversation with, or interrogation of, John Allen
Muhammad, which brought about any response." Rule
3A:11 requires production of the substance of the
defendant's statements but does not require production
of the statements sought by Muhammad in this request.
Nonetheless, the trial court did order that if a video,
audio, or otherwise transcribed interrogation existed,
the entirety of such material would be provided to the
defendant.
b. The trial court was correct in denying Muhammad's
request for "any contemporaneously made notes of
statements attributed to the defendant." Except for
specifically designated items, subsection (b) of the
Rule 3A:11 excludes the production of such notes.
c. The trial court did not err in denying Muhammad's
discovery request seeking "charged offenses,
investigation or [items] which allege unadjudicated
conduct." Such items are not discoverable under Rule
3A:11; rather such information and items may be
provided by motion under Code § 19.2-264.3:2.
Similarly, Muhammad's request for evidence of
unadjudicated criminal conduct in request 8 was
properly denied under Rule 3A:11.
Muhammad alleges that it was error for the trial court to
refuse to permit him to make ex parte application to the court
"in order to seek funds and authorization to retain expert
evaluations." We have previously rejected this argument and
find no reason to revisit the issue. Weeks v. Commonwealth,
248 Va. 460, 473, 450 S.E.2d 379, 388 (1994), cert. denied,
75
516 U.S. 829 (1995); Ramdass v. Commonwealth, 246 Va. 413,
422, 437 S.E.2d 566, 571 (1993), vacated on other grounds, 512
U.S. 1217 (1994).
The final issue related to discovery questions involves
Muhammad's assertion that the trial court erred in failing to
grant him a new trial because the Commonwealth allegedly
failed to provide exculpatory evidence to him pursuant to
Brady v. Maryland, 373 U.S. 83, 87 (1963). Malvo wrote
certain letters from jail addressed to "Pacman," a person who
remains unidentified. Counsel for Muhammad state that they
first became aware of the existence of these letters when they
were the subject of testimony in Malvo's trial. The
Commonwealth represented to the trial court that prosecutors
in Muhammad's case were unaware of the letters before the
post-trial motion for a new trial was filed.
Muhammad claims that the so-called "Pacman letters" are
exculpatory in nature because of the issue raised by Code
§ 18.2-18, previously discussed herein, extending the
potential applicability of the death sentence in a capital
murder prosecution under the terrorism statute where there is
proof that the accused "directed" or "ordered" the killing.
Muhammad maintains that the letters show the independence of
Malvo from him and demonstrate that Malvo could not have acted
under Muhammad's "direction" or "order."
76
We have previously stated:
In Brady v. Maryland, 373 U.S. 83 (1963),
the United States Supreme Court held that "the
suppression by the prosecution of evidence
favorable to an accused upon request violates
due process where the evidence is material
either to guilt or to punishment, irrespective
of the good faith or bad faith of the
prosecution." Id. at 87. Whether evidence is
material and exculpatory and, therefore,
subject to disclosure under Brady is a
decision left to the prosecution.
Pennsylvania v. Ritchie, 480 U.S. 39, 59
(1987). Inherent in making this decision is
the possibility that the prosecution will
mischaracterize evidence, albeit in good
faith, and withhold material exculpatory
evidence which the defendant is entitled to
have under the dictates of Brady. If the
defendant does not receive such evidence, or
if the defendant learns of the evidence at a
point in the proceedings when he cannot
effectively use it, his due process rights as
enunciated in Brady are violated. United
States v. Russell, 971 F.2d 1098 (4th Cir.
1992); United States v. Shifflett, 798 F.
Supp. 354 (1992); Read v. Virginia State Bar,
233 Va. 560, 564-65, 357 S.E.2d 544, 546-47
(1987).
. . . .
Exculpatory evidence is material if there
is a reasonable probability that the outcome
of the proceeding would have been different
had the evidence been disclosed to the
defense. "A reasonable probability" is one
which is sufficient to undermine confidence in
the outcome of the proceeding. United States
v. Bagley, 473 U.S. 667, 682 (1985); Robinson
v. Commonwealth, 231 Va. 142, 151, 341 S.E.2d
159, 164 (1986).
Bowman v. Commonwealth, 248 Va. 130, 133, 445 S.E.2d 110, 111-
12 (1994).
77
We need not resolve questions related to when the
Commonwealth knew of the letters or whether the knowledge of
Fairfax prosecutors should be imputed to Prince William
prosecutors because, upon review of the record, we hold that
the letters were not exculpatory in nature, were not likely to
be admissible in Muhammad's case, were cumulative of other
testimony, and the admission of such letters would not result
in a "reasonable probability that the outcome of the
proceeding would have been different had the evidence been
disclosed to the defense."
The letters do not significantly address the relationship
between Malvo and Muhammad. They do suggest the ability of
Malvo to think and act independently, a subject squarely at
issue in Malvo's case because Malvo maintained that he was
"brainwashed" by Muhammad. As previously discussed herein,
Malvo's claim of insanity was demonstrably different than the
issue of his action under "direction" or "order" of Muhammad.
Also, the ability of Malvo to think and act independently
was amply revealed in other discovery given to Muhammad, such
as transcripts of Malvo's confessions to police and drawings
and writings Malvo made while in custody. In this respect the
"Pacman letters" are merely cumulative in nature.
Muhammad argues that the result of the trial would have
been different had the jury received the letters in evidence.
78
The admissibility of the letters in Muhammad's case is far
from established. Muhammad only states that they were
admissible in Malvo's case, so they must be admissible in
Muhammad's. However, in Malvo's case the letters may have
satisfied an exception to the hearsay rule as statements of
the defendant. Muhammad offers no theory of admissibility of
this evidence in his trial that would overcome a hearsay
objection.
In ruling on the motion for a new trial, the trial court
stated:
And I do not believe that the Pacman
letters are such as to require the granting of
a new trial.
I believe that they are cumulative,
corroborative and collateral . . . they are
not material, such that they would not produce
an opposite result on the merits at another
trial, or, in the other analysis, that they
are not favorable evidence that could
reasonably be taken to put the whole case in
such a different light as to undermine
confidence in the verdict.
Upon review of the record, we agree with the trial court. The
trial court did not err in denying Muhammad's motion for a new
trial based upon the "Pacman letters."
IX. Jury Selection Issues
In assignments of error 16, 20, 30, and 31, Muhammad
complains of error in the jury selection process. As a
preliminary matter, he asserts that he cannot be tried by any
79
jury in the United States for capital murder under the
terrorism statute. He asserts that this unique charge
alleging "intent to . . . intimidate the civilian population
at large" results in the "legal impossibility to impanel an
impartial jury." His logic is simply stated: because victims
of the crime charged cannot be jurors in the case, no one from
the "civilian population at large" can serve on his jury.
Taking this tautology to its extreme application, Muhammad
concludes, "The entire civilian population of Prince William
County, and indeed, of the entire state and the United States,
was alleged to be the victim."
We need not address Muhammad's extensive citation of
cases concerning prohibition of victims of a particular crime
serving on the jury trying the crime at issue. The entirety
of his argument is premised upon the status of jurors in this
case as victims. They are not victims. The victim in the
capital murder charge based upon terrorism is Dean Meyers.
Arguably, Muhammad's victims under the facts of the case and
the evidence presented also included Keenya Cook, Muhammad
Rashid, Paul LaRuffa, Claudine Parker, Keely Adams, Hong Im
Ballenger, Premkumar Walekar, Sara Ramos, Lori Lewis-Rivera,
Paschal Charlot, Caroline Seawell, Iran Brown, Kenneth
Bridges, Linda Franklin, Jeffrey Hopper, and Conrad Johnson.
80
The trial court's task was to empanel an impartial jury.
This task was accomplished by the application of the
requirements of carefully drafted statutes in Virginia and the
use of voir dire in the selection of the panel. The trial
court did not err in denying Muhammad's motion to dismiss the
indictment because of a "legal impossibility" of empanelling a
jury on the capital murder charge based upon terrorism.
With regard to the voir dire process itself, Muhammad
maintains that the trial Court erred in precluding counsel
from propounding certain questions and "limiting voir dire
. . . regarding capital punishment attitudes, pre-trial
publicity and other issues." Additionally, Muhammad makes
general arguments attacking the process of "death
qualification" of jurors.
In his brief, Muhammad does not argue that the trial
court abused its discretion in refusing any question he
proposed. In fact, Muhammad does not identify any voir dire
question he was not permitted to ask. In this respect, his
assignments of error on these issues are inadequately
supported by argument on brief and are waived. Rule 5:17(c);
Powell, 267 Va. at 135, 590 S.E.2d at 554. Muhammad does
specifically complain in assignment of error 32 that the court
erred in permitting the Commonwealth to question jurors during
voir dire concerning the "concept of direction or order of a
81
42 year old over a 17 year old regarding the terrorism
theory." His argument consists of one sentence: "the
Commonwealth should not have been able to telegraph its theory
of direction or order." This single sentence does not
constitute sufficient argument. The remainder of the specific
complaints in assignment of error 32 are not mentioned at all
in the argument. Consequently, they are deemed waived. Rule
5:17(c); Powell, 267 Va. at 135, 590 S.E.2d at 554.
Finally, with regard to the qualification of the jury,
Muhammad argues that the "death qualification" process itself
is unconstitutional. There is no assignment of error
concerning this issue; consequently, it is not properly before
us. Rule 5:17(c); Powell, 267 Va. at 135, 590 S.E.2d at 554.
X. Evidentiary Issues
A. Sergeant Major Mark Spicer
In assignments of error 36, 37, and 62, Muhammad alleges
that it was error for the trial court to permit the testimony
of Sergeant Major Mark Spicer concerning the Commonwealth's
sniper theory. Spicer's testimony came at a time in the trial
proceedings when Muhammad was representing himself with the
aid of standby counsel.
Muhammad maintains that the Commonwealth did not identify
Spicer as an expert witness pursuant to the requirements of a
pretrial order. He further argues that the "slides" used as
82
demonstrative aids in his presentation constituted "reports"
subject to disclosure under the pretrial order. The pertinent
part of the pretrial order required the Commonwealth's
production of "written reports of autopsies, ballistic tests,
fingerprint analysis, handwriting analysis, blood, urine and
breath tests and other written scientific reports and . . .
oral scientific reports that the Commonwealth intends to offer
in its case in chief or that are exculpatory." In
consideration of Muhammad's motion for a new trial, the trial
court held that the pretrial order did not require disclosure
of all experts. It only required the disclosure of scientific
tests and results. Spicer's slides were not in the nature of
scientific tests and results.
Next, Muhammad asserts that Spicer's testimony was
irrelevant and that he should not have been permitted to
testify about "Mr. Muhammad's background, military career, and
other factors not in evidence." Upon review of the record, we
hold that Muhammad did not make contemporaneous objections
concerning these matters; consequently, they are not preserved
for appeal and may not be considered. Rule 5:25. The trial
court did not err in refusing to exclude Spicer from
testifying or in refusing to grant Muhammad's motion for a new
trial on these grounds.
B. Jeffrey Miller
83
Muhammad alleges in assignment of error 44 that the trial
court erred in permitting Fairfax Police Officer Jeffrey
Miller to "testify as to his opinion." In argument, Muhammad
maintains that Miller's testimony was expert opinion testimony
and that it was based upon conjecture and surmise and facts
not in evidence. Muhammad appears to complain in his brief,
although not in the assignment of error, that he was not given
notice of Miller's testimony in violation of the pretrial
discovery order.
Muhammad did not object at trial on the basis that he had
no notice of Miller's testimony. He did not object at trial
that Miller's testimony was based upon conjecture or surmise
or not supported by facts in evidence. He did not object at
trial that Miller's testimony was expert in nature. We will
not consider these arguments for the first time on appeal.
Rule 5:25.
C. Edward Bender
In assignment of error 54, Muhammad argues that the trial
court erred in admitting certain laboratory reports of the
Virginia Department of Forensic Science through Edward Bender,
a chemist at the Federal Bureau of Alcohol, Tobacco and
Firearms. His assignment of error asserts that admission of
the report constituted a "violation of a right to confront the
84
person who undertook that analysis pursuant to Crawford v.
Washington," 541 U.S. 36 (2004).
Crawford had not been decided at the time of Muhammad's
trial. No objection was made at trial based upon Sixth
Amendment rights. Muhammad's objections were based upon
compliance with Code § 19.2-187 not constitutional concerns.
The objections on appeal based upon the Sixth Amendment and
Crawford were not preserved at trial. We will not consider
them. Rule 5:25.
D. Professor Steven Fuller
George Mason University Professor Steven Fuller testified
over the defendant's objection about the economic impact of
the 47 days of turmoil caused by the criminal conduct of
Muhammad and Malvo. Assignment of error 60 complains that his
testimony was permitted without notice required by the
pretrial discovery order, "and further was without proper
foundation or a basis in the record for such expert testimony
to be admitted."
The trial court found that Fuller did not generate any
reports which were required to be produced by the pretrial
discovery order. Although Muhammad claims in his brief that
"the testimony was wholly irrelevant," he also answers his own
objection by stating, "[t]his witness was crucial to the
Commonwealth theory that the October, [2002] shooting
85
influenced the government." Other than relevance, an issue he
concedes, Muhammad does not offer any specific basis upon
which this testimony was admitted without proper foundation.
Upon review of the record, we cannot say that the trial court
abused its discretion in permitting Fuller to testify.
E. Alleged Victim Impact Evidence
Admitted During Guilt Phase
In assignments of error 38, 39, 40, 41, and 42, Muhammad
makes various objections to the introduction of biographical
information and backgrounds of various victims. Specifically,
Muhammad objects to the trial court's admission of "so-called
'photographs in life'" of various shooting victims and the
admission of certain "911" calls, particularly that of Ted
Franklin, husband of Linda Franklin.
At trial, Muhammad did not object to the admission of the
"photographs in life" of various victims. He did raise an
objection to the Commonwealth's use of the photographs during
opening statement, but did not object to the photographs when
admitted. Also Muhammad did not object to the admission of
the first three "911" tapes received in evidence regarding the
shooting of Meyers and LaRuffa. These objections are not
preserved. Rule 5:25.
Three other "911" tapes were admitted into evidence.
Muhammad objected to the tape related to Rashid's shooting as
86
"irrelevant." With regard to the tapes involving the
shootings of Brown and Franklin, Muhammad objected that the
tapes were irrelevant and cumulative. The trial court ruled
that the tapes were "very relevant . . . and material
evidence." Muhammad objected to the "911" tape of Franklin's
husband as prejudicial. Upon consideration of the objection,
the trial court ruled that the prejudicial impact was
outweighed by its probative value. The trial court
specifically noted that the tape was relevant to the issue of
terror in the community.
Muhammad objected to a question asked of Meyers' brother
regarding Meyers' military service. The trial court sustained
the objection. Every objection made by Muhammad to the
testimony of Parker's sister was sustained. Muhammad did not
make a contemporaneous objection to the testimony of
Ballenger's sister; rather, he waited until her testimony was
concluded. Any objection not raised contemporaneously is
waived. Rule 5:25. To the extent that a continuing or
renewed objection was made to the introduction of a photograph
of Ballenger, the trial court did not err in admitting Exhibit
137A. Similarly, Muhammad's objection to the testimony of
Ballenger's widower was not timely. An objection during the
testimony of Walekar's daughter resulted in a direction from
the trial court to limit the testimony to biographical
87
information. The objection made by Muhammad to the testimony
of Ramos' widower was sustained. Before Lewis-Rivera's
widower testified, Muhammad objected to what he expected to be
"victim-impact" testimony. The court instructed the
Commonwealth concerning proper limitations upon the testimony
and, when it was offered, there was no objection. Every
objection to the testimony of Charlot's daughter, Franklin's
daughter, and Johnson's widow was sustained.
The record reveals that the trial court carefully limited
the Commonwealth in the guilt phase to short biographical
information about the victim and the manner in which the
particular family member found out about the shooting. The
testimony was not "victim-impact" testimony allowed in the
penalty phase. It did not consist of evidence of economic or
psychological loss, or grief. The trial court did not abuse
its discretion in the admission of such evidence.
F. The Rashid Shooting
Muhammad alleges in assignment of error 46 that evidence
of the robbery and shooting of Muhammad Rashid was immaterial
and irrelevant to the Commonwealth's theories of the case. He
also argues that the probative value of the evidence was
outweighed by the prejudicial impact upon the jury.
At trial the Commonwealth explained the relevance of the
evidence. Rashid was shot and wounded at the Three Roads
88
Liquor Store. Rashid saw the Caprice outside the store before
the shooting. He identified Malvo as the person who shot him
with a handgun. At the same time that Malvo shot him, he was
shot at with a rifle from a distance. The rifle shot missed
its target. The handgun was the same weapon used to shoot and
wound LaRuffa and the same weapon found at the scene in
Montgomery, Alabama where Malvo dropped it after Parker and
Adams had been shot with a high-powered rifle. The rifle used
to wound and kill Parker and Adams at the same time that Malvo
held the handgun during their robberies was the .223 caliber
Bushmaster rifle recovered from the Caprice with Muhammad and
Malvo.
The trial court did not abuse its discretion in the
admission of this evidence because it demonstrated a "singular
strong resemblance to the pattern of the offense charged,"
Johnson v. Commonwealth, 259 Va. 654, 677, 529 S.E.2d 769,
782, cert. denied, 531 U.S. 981 (2000), and it provided
significant links connecting Muhammad and Malvo to each other,
to the weapons used, and supported the theories of the
Commonwealth concerning the methodology of their cooperative
criminal efforts.
G. Documents Related to the Caprice
During the testimony of Christopher O'Kupski, a used car
salesman from New Jersey, the trial court admitted certain
89
"paperwork" related to the ownership and transfer of title for
the Caprice. In assignment of error 48, Muhammad argues that
the trial court erred in admitting these documents because
they were "not properly authenticated" and "were hearsay."
Exhibit 65 consisted of four documents: the temporary car tag,
a registration application, a reassignment form, and the
original title to the Caprice. Upon questioning by the trial
court, the witness stated that he had "filled out" the
documents, with the exception of the registration application
which is a form regularly used by the New Jersey Division of
Motor Vehicles. Assuming, without deciding that the admission
of any or all of these documents was improper, the error would
be harmless. The evidence was offered to show Muhammad's
purchase of and connection to the Caprice. Considering
O'Kupski's testimony apart from the documents themselves, and
the extensive evidence of Muhammad's connection to the
Caprice, if the trial court erred, such error was most
certainly harmless error.
H. Charlene Anderson
Charlene Anderson, Muhammad's cousin, testified about her
encounters with Muhammad and Malvo in Baton Rouge, Louisiana
in August 2002. In assignments of error 49, 50, 51, and 62,
Muhammad asserts that her testimony was irrelevant, that "the
prejudicial value outweighed any probative assistance to the
90
fact finder," and that the Commonwealth was permitted to
question Anderson on redirect beyond the scope of cross-
examination.
Anderson testified that Muhammad told her that he and
Malvo were on a mission for the military to recover
explosives. Anderson was a law enforcement officer. Muhammad
asked her to provide him with bullets. Anderson testified
that Muhammad told her that Malvo was "highly trained."
Muhammad objected to this testimony on the grounds that
it was hearsay and irrelevant. The trial court overruled the
objection on the grounds that it was not offered for the truth
of its content, namely that Muhammad and Malvo were actually
on a mission for the military and that Malvo actually was
"highly trained." The purpose for the testimony was to show
Muhammad's attempt to obtain ammunition for his rifle shortly
before the string of shootings began and also to show the
nature of the relationship between Malvo and Muhammad.
During cross-examination of Anderson, Muhammad elicited
testimony suggesting that Muhammad and Malvo did not interact
or talk to each other. On redirect, the trial court permitted
the Commonwealth to ask Anderson about a conversation she
overheard between Muhammad and Malvo.
Lastly, with respect to Anderson's testimony, Muhammad
asserts that it was error to permit Anderson to describe the
91
rifle Muhammad showed her. Muhammad made no such objection at
trial. He may not advance this claim of error for the first
time on appeal. Rule 5:25.
Upon review of the record and upon the issues preserved
for appeal, we hold that the trial court did not err in
admitting Anderson's testimony. It was relevant and its
probative value outweighed any claim of prejudicial effect
upon the jury.
I. Demonstrative Evidence – Model
of the Caprice Trunk and Video
At trial the Commonwealth offered demonstrative evidence
utilizing a model of the trunk of the Caprice and a video
demonstrating how a shooting could take place from the trunk.
The use of demonstrative evidence to illustrate testimony is a
matter entrusted to the sound discretion of the trial court.
Mackall v. Commonwealth, 236 Va. 240, 254, 372 S.E.2d 759, 768
(1988), cert. denied, 492 U.S. 925 (1989).
Muhammad claims in assignments of error 55, 56, 57, and
58 that the trial court erred in admitting this evidence
because "the reconstruction was not complete," it "was out of
context," and "did not include the materials in the trunk from
the time of Mr. Muhammad's arrest or any specific incident."
Muhammad further argues that it was error to allow the jury to
inspect the Caprice after viewing the demonstrative replica
92
and the video. He further complains about the use of "police
officer stand-ins" in the video and that the evidence
presented invited the jury to speculate about what occurred in
the shootings, particularly the shooting of Dean Meyers.
The evidence presented was not expert reconstructive
opinion testimony. Rather it was demonstrative evidence,
illustrative in nature of other evidence presented. Muhammad
claims that the demonstration was not supportive of the
Commonwealth's theory of the case nor based upon other
evidence presented. We disagree with Muhammad.
Scientific evidence of the presence of nitroglycerine and
gunshot residue in the trunk of the Caprice proved that
gunshots were fired from the trunk. A witness testified that
he saw a flash come from the car when Charlot was murdered.
Muhammad and Malvo were seen in the Caprice immediately before
the murder of Dean Meyers. Immediately after the murder of
Dean Meyers, Muhammad was interviewed in the parking lot
across the street and in the presence of the Caprice. Malvo
was not seen at the parking lot, leaving the reasonable
inference that Malvo was in the trunk. Demonstrative evidence
concerning how a person could get from the passenger
compartment to the trunk from the inside and how a person
could shoot a rifle from within the trunk was relevant and
helpful to the jury.
93
The trial court carefully considered the relevance of the
demonstrative evidence and the foundation for its
admissibility. The trial court did not abuse its discretion
in permitting this demonstrative evidence followed by an
actual inspection of the trunk of the Caprice.
J. Testimony Regarding Terror in the Community
Robert Saady, a convenience store operator in Ashland,
Virginia testified at trial about the impact of the sniper
shootings on his business, his employees, and other businesses
in the Ashland area. Montgomery County Police Sergeant Robert
Thompson testified at trial concerning the shootings in the
Washington D.C. area. Muhammad argues in assignments of error
59 and 61 that Saady's testimony was "irrelevant, speculative,
and immaterial," and that Thompson's testimony was
"cumulative, irrelevant and immaterial." He argues that proof
of actual fear in the community is not probative of Muhammad's
intent.
School officials in three different school systems also
testified about the impact of the sniper shooting upon
personnel, students and parents, and the operation of the
schools. However, the only assignments of error before this
Court involve the testimony of Saady and Thompson.
With regard to Thompson, Muhammad objected only to
specific questions not the overall nature of the testimony.
94
None of those specific objections are made the subject of
argument in his brief. With regard to Saady, Muhammad did
object to the relevance of his testimony in its entirety.
Section 18.2-46.4 required proof that Muhammad intended to
"intimidate the civilian population at large or . . .
influence the conduct or activities of the government . . .
through intimidation." It is an axiom of law and human
behavior that one may infer that a person intends to produce
the consequences reasonably anticipated from his acts. Wilson
v. Commonwealth, 249 Va. 95, 101, 452 S.E.2d 669, 673, cert.
denied, 516 U.S. 841 (1995); see also Mickens v. Commonwealth,
247 Va. 395, 408, 442 S.E.2d 678, 687, rev'd on other grounds,
513 U.S. 922 (1994); Green v. Commonwealth, 223 Va. 706, 711,
292 S.E.2d 605, 608 (1982); Barrett v. Commonwealth, 210 Va.
153, 156, 169 S.E.2d 449, 451 (1969). As such, testimony
about what was actually and reasonably produced by Muhammad's
conduct was relevant to prove his intent. The trial court did
not err in permitting such testimony.
K. Motion to Quash Eyewitness Identifications
In assignment of error 25, Muhammad alleges that "the
court erred in denying the motion to quash and suppress as
unreliable various eyewitness identifications." In his one
paragraph argument in his brief, Muhammad offers insufficient
95
argument in support of his assignment of error. It is waived.
Rule 5:17(c); Powell, 267 Va. at 135, 590 S.E.2d at 54.
XI. Sentencing
A. Torture, Aggravated Battery, or Depravity of Mind
In assignment of error 12, Muhammad asserts that:
It was error to deny the motion to preclude
sentence of death based on vileness factor and
allow the Commonwealth to base its request for
the death sentence on the "vileness" factor,
since there was no evidence of torture,
aggravated battery, or depravity of mind.
Muhammad raised this issue in a pre-trial motion which the
trial court took under advisement until the evidence had been
presented. At the conclusion of the presentation of the
evidence, Muhammad expressly stated that he objected to the
case being presented to the jury based upon torture or
aggravated battery. Muhammad's assignment of error is in the
disjunctive. He claims that there was no evidence of torture,
aggravated battery, or depravity of mind. He did not object
to "depravity of mind" as a predicate finding for vileness.
The trial court ruled that it would not include "torture" in
the instructions. Muhammad's objections in the trial court do
not preserve assignment of error 12. Rule 5:25; Rule 5:17.
B. Victim Impact Testimony
Muhammad argues in assignment of error 11 that it was
error under the due process clause to permit victim impact
96
testimony during the penalty phase of his trial. He argues
that prior to 1998, the Virginia capital sentencing scheme
"only contemplated the presentation of victim impact testimony
to the judge prior to the imposition of sentence." To the
extent that this statement provides a separate grounds for his
assignment of error, it is barred from review because the
issue was not raised in the trial court. Rule 5:25. With
respect to Muhammad's complaint about victim impact evidence
presented to a jury, we have previously considered such claims
and have rejected them. Beck v. Commonwealth, 253 Va. 373,
385, 484 S.E.2d 898, 906, cert. denied, 522 U.S. 1018 (1997);
Weeks, 248 Va. at 476, 450 S.E. 2d at 389. We see no reason
to revisit our previous decisions.
C. Unadjudicated Criminal Conduct
Muhammad alleges in assignments of error 77, 78, 79, 80,
81, 82, and 83 that the trial court erred in admitting
multiple instances of unadjudicated criminal conduct. As
previously discussed, he has waived assignments of error 78,
79, 80, 82, and 83 for failure to adequately brief the issues.
Rule 5:17(c). We will turn our attention to assignments of
error 77 and 81. Assignment of error 77 states:
The court erred by allowing unadjudicated acts
to be received into evidence by the jury
without any standard of proof or
particularized burden on the Commonwealth to
prove such acts to a specific standard of
97
proof in violation of Mr. Muhammad's right to
due process under the Virginia and United
States Constitutions.
As stated, assignment of error 77 is unspecific. We must look
to other assignments of error to place his complaint in a
particular context. The only specific issue involving
unadjudicated criminal conduct properly before us on appeal is
the subject of assignment of error 81 concerning testimony
about an alleged escape attempt from the Prince William County
Adult Detention Center.
The Commonwealth presented evidence of the attempted
escape through two witnesses, without objection from the
defendant. Only after the completion of all the evidence from
the prosecution and the defense at the sentencing phase and
after both parties had rested, did Muhammad move to strike the
evidence of the attempted escape. The trial court properly
denied the motion because it was untimely. In order to
preserve an issue for appeal, an objection must be made
contemporaneously or it is waived. Muhammad has failed to
preserve assignments of error 77 and 81. Rule 5:25.
D. Testimony of Mildred Muhammad
In assignments of error 84 and 85, Muhammad asserts that
the trial court erred in allowing Mildred Muhammad,
("Mildred"), the defendant's former wife, to testify about
98
statements made to her by her lawyer in Tacoma, Washington and
a statement made by their child, Taalibah.
Mildred testified that the lawyer representing her in a
custody proceeding told her to leave town quickly because of
fear that Muhammad would find her and kill her. Muhammad
objected to this statement on the grounds of hearsay. The
trial court overruled the objection because it was not offered
for the truth of the matter asserted; rather, it was offered
to show why Mildred left Washington State and moved to the
suburbs of Washington, D.C. The trial court gave the jury a
limiting instruction directing it that the evidence was to be
considered only to prove that she moved because of the
statement made by her lawyer. After further discussion with
counsel, the court gave an additional limiting instruction
drafted by Muhammad. Also, Mildred testified that her
daughter, Taalibah, said to her that if Muhammad "gets out,"
she was concerned that he would kill her mother. Muhammad
objected on the grounds of hearsay.
Muhammad maintains on appeal that allowing such
statements violated his Sixth Amendment right to confront
witnesses against him and violated the rule established in
Crawford. Crawford had not been decided at the time of
Muhammad's trial. He made no objection based upon the Sixth
Amendment to the testimony of his former wife. These issues
99
will not be considered for the first time on appeal. Rule
5:25.
The trial court did not err in admitting Mildred's
testimony regarding her lawyer's statement to her. It was not
hearsay because it was not offered for the truth of the matter
asserted. Chandler v. Graffeo, 268 Va. 673, 682, 604 S.E.2d
1, 5 (2004). A proper limiting instruction was given, not
once, but twice. One of the instructions was drafted by
Muhammad. A jury is presumed to have followed the
instructions of the trial court. Green v. Young, 264 Va. 604,
611, 571 S.E.2d 135, 139 (2002) (citing Zafiro v. United
States, 506 U.S. 534, 540 (1993)).
With regard to Mildred's testimony about her daughter's
statement to her, the record reveals a more complicated
context. Muhammad objected on the grounds of hearsay and
relevancy, not on Sixth Amendment grounds. It is significant
that the Commonwealth did not seek to introduce Mildred's
testimony about her daughter's statement until after the trial
court, over the Commonwealth's objection, ruled that it would
allow Muhammad to present to the jury several letters written
to him from his children, including Taalibah, which gave the
impression that the children had no fear of him. After
considerable argument from counsel, the trial court ruled that
all the letters Muhammad sought to introduce would be allowed
100
and a single statement from Taalibah to her mother would also
be allowed. The trial court ruled that all of this evidence
was admissible pursuant to the state-of-mind exception to the
hearsay rule. The Commonwealth also argued that Taalibah's
statement should be independently admissible as rebuttal to
Muhammad's introduction of the letters.
The nature of the evidence offered by Muhammad was to
show his relationship with his children. He offered out of
court statements in the form of letters from his children for
this purpose. Similarly, the Commonwealth offered an out of
court oral statement from Taalibah for the same purpose. Upon
review of the record, we hold that, if the admission of
Taalibah's statement was error, it was invited error. We will
not "notice error which has been invited by the party seeking
to take advantage thereof on appeal." Saunders v.
Commonwealth, 211 Va. 399, 400, 177 S.E.2d 637, 638 (1970);
Clark v. Commonwealth, 202 Va. 787, 791, 120 S.E.2d 270, 273
(1961). Muhammad's introduction of evidence showing the state
of mind of his children toward him – arguing that such proof
was both relevant and not objectionable hearsay – surely
invited evidence of a similar nature from the Commonwealth.
Whether as evidence in its case in chief or as rebuttal
evidence, the trial court did not err in permitting Mildred to
testify about Taalibah's statement.
101
XII. Jury Instructions
In assignments of error 86, 87, 89, 90, 91, 92, 93, 94,
and 95, Muhammad alleges defects in the instruction of the
jury.
A. Aggravated Battery
Muhammad objected to the trial court's instruction to the
jury that it could find the aggravating factor of vileness
under Code § 19.2-264.2 from proof of aggravated battery in
the death of Dean Meyers. Muhammad asserts that a single shot
has never qualified as an aggravated battery. We have defined
aggravated battery as "a battery which, qualitatively and
quantitatively, is more culpable than the minimum necessary to
accomplish an act of murder." Smith v. Commonwealth, 219 Va.
455, 478, 248 S.E.2d 135, 149 (1978), cert. denied, 441 U.S.
967 (1979). Muhammad asserts that, in a shooting case, this
Court has always required more than one gunshot to satisfy the
requirements of aggravated battery.
In Hedrick v. Commonwealth, 257 Va. 328, 513 S.E.2d 634,
cert. denied, 528 U.S. 952 (1999), we noted that the clear
language of Code § 19.2-264.2 demonstrates that "the term
'vileness' includes three separate and distinct factors, with
proof of any one factor being sufficient to support a finding
of vileness and hence a sentence of death." Id. at 341-42,
102
513 S.E.2d at 640. Those factors are torture, depravity of
mind, or aggravated battery to the victim.
The significance and effect of Muhammad’s argument
attacking the aggravated battery instruction must be assessed
in the context of the other jury instructions and the jury's
actual findings. Jury instruction 14 dealt with the offense
of “the killing of Dean Meyers as part of the killing of more
than one person in a three-year period.” Jury instruction 14A
dealt with the offense of “the killing of Dean Meyers in the
commission or attempted commission of an act of terrorism.”
Each of the instructions included direction to the jury that
the penalty of death could not be imposed for either of the
offenses unless the Commonwealth proved beyond a reasonable
doubt at least one of the following aggravating circumstances:
1. That, after consideration of his history
and background, there is a probability that he
would commit criminal acts of violence that
would constitute a continuing serious threat to
society; or
2. That his conduct in committing the offense
was outrageously or wantonly vile, horrible or
inhuman, in that it involved depravity of mind
or aggravated battery to the victim beyond the
minimum necessary to accomplish the act of
murder.
For each of the offenses, the jury’s verdict forms expressly
found that Muhammad “would commit criminal acts of violence
that would constitute a continuing serious threat to society,”
103
and that “the offense was outrageously or wantonly vile,
horrible, or inhuman.” Additionally, each of the verdict
forms expressed findings of both “[d]epravity of mind” and
“[a]ggravated battery to the victim beyond the minimum
necessary to accomplish the act of murder.” Based upon these
multiple findings, the jury unanimously fixed Muhammad’s
punishment at death for each of the offenses.
Even if the trial court erred in granting an instruction
based upon aggravated battery, the error would be harmless
beyond a reasonable doubt. The jury’s verdict of death for
each of the offenses was predicated upon additional and
independent findings of future dangerousness and vileness
based upon depravity of mind.
B. Future Dangerousness Instruction
Muhammad argues in his brief that the future
dangerousness instruction given is unconstitutionally vague.
The Court can find no assignment of error that attacks this
instruction on that basis. Furthermore, his one sentence
conclusory argument is inadequate. We will not consider the
argument. Rule 5:17(c).
C. Finding Instruction
In assignment of error 91, Muhammad alleges that the
trial court erred in failing to instruct the jury "that the
verdict be unanimous as to any aggravating factors."
104
Muhammad's argument on this point is a one-sentence repetition
of his assignment of error. It is inadequate argument and
will not be considered. Rule 5:17(c).
D. Life Without Parole
In assignments of error 87 and 90, Muhammad maintains
that the trial court erred in granting the Commonwealth's
proposed instructions "without including the 'life without the
possibility of parole' language." He further argues that the
trial court should have granted his proposed instruction with
such language. Once again, Muhammad, in one sentence
conclusory arguments, simply repeats the language of the
assignment of error and offers no argument. The assignments
of error are deemed waived. Rule 5:17(c).
E. Remaining Issues Relating to Instructions
Numerous other issues are waived by Muhammad for failure
to make sufficient argument in his brief. He makes
insufficient argument that:
1. The trial court should have granted his instruction K
defining mitigation. Additionally, here the trial court
did define mitigation, it simply refused to highlight any
particular evidence as Muhammad wanted;
2. The trial court should have instructed the jury that it
could consider life without parole in determining
aggravating factors and as a mitigating factor;
3. The trial court should have given his instruction L
because the jury was "left directionless" as to how to
"weigh" mitigation evidence;
4. The trial court should have instructed the jury that the
vileness factor applied only to Meyers' killing.
Additionally, here the instruction offered was incorrect
105
because the vileness factor could be found based upon
depravity of mind as well;
5. The trial court should have granted his instruction T
regarding mitigating evidence to be considered in
weighing culpability and future violence. The entirety
of his argument consists of the following: "The jury was
entitled to this guidance."
6. The trial court did not make it clear in instructions
that the jury could impose life in prison even if it
found aggravating factors. The record demonstrates that
the jury was properly instructed on this matter.
For each of these matters (1 - 6), Muhammad fails to make
sufficient argument in his brief. The matters are waived.
Rule 5:17(c).
XIII. Pretrial Publicity and
the Right to a Fair Trial
In assignments of error 5, 23, 24, and 28, Muhammad makes
various arguments concerning alleged errors of the trial court
concerning its handling of pretrial publicity. Muhammad
argues that:
1. The trial court erred by denying his motion to issue a
show cause order, quashing subpoenas related to seeking
evidence of pretrial leaks of information concerning the
investigation of Muhammad and Malvo, and denying a
request for appointment of a special prosecutor to
investigate pretrial leaks;
2. The trial court erred by denying Muhammad's motion to
close a hearing on a motion in limine;
3. The trial court erred in failing to prevent information
leaks and to take appropriate corrective action
concerning the leaks;
4. The trial court erred in refusing to dismiss the charges
against Muhammad based upon leaks of information;
5. The leaks "hindered the defendant's ability to seat a
fair jury despite the change of venue."
106
This case attracted extensive media coverage. Counsel
for Muhammad and the Fairfax Commonwealth's Attorney agreed to
a consent order in the Fairfax County Circuit Court, where
Malvo's prosecution was pending, generally prohibiting law
enforcement officials of the Fairfax County Police Department
and its civilian employees from disclosing information in
violation of the Department's own rules, namely, General Order
401.1. Among other things, General Order 401.1 and the
consent order in Fairfax County Circuit Court specifically
prohibit disclosure of evidence of statements, criminal
records, opinions of guilt or innocence, testing and test
results, and statements about expected testimony.
Additionally, counsel for Muhammad and the Commonwealth's
Attorney for Prince William County agreed that all discovery
from the Commonwealth would be sealed to limit dissemination
of information that might have an effect upon jury selection.
Due to continued concerns about allegations of leaks of
information related to the investigation and prosecution of
Muhammad and Malvo, Muhammad filed a motion for rule to show
cause in the Prince William County Circuit Court requesting
that the trial court determine the source of information
appearing in the media concerning the Malvo and Muhammad cases
which had been attributed to law enforcement sources, and take
appropriate action. In the alternative, Muhammad requested
107
that the trial court appoint a special prosecutor or
investigator. The trial court denied the motion. A similar
motion had been presented to the Circuit Court of Fairfax
County and was denied.
Thereafter, Muhammad and the Prince William County
Commonwealth's Attorney agreed to the entry of an order on
August 5, 2003, providing in pertinent part:
Law enforcement employees, from all agencies
working as members of the prosecution Task
Force, or working with the Task Force, whether
sworn officers/agents or civilian employees
shall not disclose any information to the
press or public related to the investigation
leading to the arrests of John Allen Muhammad
and Lee Boyd Malvo, and pending prosecution of
John Allen Muhammad and Lee Boyd Malvo in
Prince William and Fairfax County Circuit
Courts.
Approximately two weeks before the commencement of
Muhammad's trial, a book entitled "Sniper: Inside The Hunt For
The Killers Who Terrorized The Nation," was released to the
public. This 237-page publication contained detailed
information concerning the investigation of Muhammad and
Malvo. Muhammad filed a motion to dismiss the charges or for
other appropriate relief asserting that there had been a
flagrant violation of the August 5, 2003 order by numerous and
unknown law enforcement agents. In the motion, Muhammad did
not fault the prosecutors in the case and did not argue that
there had been any discovery violations under Rule 3A:11.
108
The trial court expressed its concern about the matter
but disagreed regarding Muhammad's proposed remedies. In the
absence of any violations of the discovery rules, the trial
court declined to prohibit introduction of specified evidence
of the Commonwealth. The trial court declined to order that
the Commonwealth could not seek the death penalty. The trial
court indicated that it would allow individual voir dire of
potential jurors on the issue of pre-trial publicity. The
trial court had already granted a motion for change of venue
and the trial was scheduled to be held in Virginia Beach,
Virginia.
Muhammad asserts that the trial court should have
dismissed the charges, precluded the death penalty, or limited
the introduction of evidence pursuant to the authority of Code
§ 19.2-265.4. However, this code section recites potential
remedies for failure to provide discovery under Rule 3A:11.
Muhammad expressly stated in his motion that no discovery
violations under the rule had occurred.
In his motion, Muhammad does not suggest that the
Commonwealth's Attorney's office of Prince William County was
the source of leaks. Additionally, there is no evidence that
the information contained in the book published before trial
came from leaks after the August 5, 2003 order. The trial
court noted that it was likely that most of the information in
109
the book came from communications prior to the time the trial
court was asked to intervene and prohibit disclosure of any
information regarding the Muhammad and Malvo investigations.
In his brief on this matter, Muhammad cites one statute,
which does not apply, and no cases, in support of his argument
that Muhammad was not tried by a fair and impartial jury or
that his trial was in any way tainted by pretrial publicity.
Upon review of the record, we conclude that the trial court
took appropriate action to limit the effect of pretrial
publicity in this case. The trial court entered a consent
order regarding sealing of discovery responses of the
Commonwealth; when asked, the trial court entered the August
5, 2003 order prohibiting law enforcement and civilian
employees of law enforcement agencies from disclosing to the
media or the public any information concerning the
investigation of Muhammad and Malvo; the trial court granted
Muhammad's motion for a change of venue to a location away
from the immediate zone of pretrial publicity; and, the trial
court permitted individualized voir dire of potential jurors
concerning pretrial publicity.
Muhammad does not cite any actual tainting of the jury
selection process or any way in which his trial was
compromised by pretrial publicity. He does not cite any
particular consequences of the trial court's denial of a
110
motion to close a hearing on a motion in limine or the trial
court's refusal to issue show cause orders or appoint a
special prosecutor to investigate leaks. It is most telling
that at trial, of the 125 potential jurors questioned, only 8
were challenged on grounds that exposure to pretrial publicity
made them inappropriate jurors. We hold that the trial court
did not err with regard to any of the issues raised in
Muhammad's assignments of error 5, 23, 24 and 28.
XIV. Miscellaneous Constitutional Challenges
to the Death Penalty
In assignments of error 13, 21, and 26, Muhammad raises
numerous issues relating to the constitutionality of the death
sentence generally and as it is applied in Virginia. Support
for many of his arguments is not found in his brief. Rather,
Muhammad attempts to incorporate by reference various motions,
memoranda, and argument made in the trial court. We have
previously held that such a practice is impermissible.
Schmitt, 262 Va. at 138, 547 S.E.2d at 194; Burns v.
Commonwealth, 261 Va. 307, 319, 541 S.E.2d 872, 881, cert.
denied, 534 U.S. 1043 (2001). We will not consider such
arguments. They are waived. Rule 5:17(c).
Other matters raised in these assignments of error and
argued in Muhammad's brief have been previously decided by
this Court:
111
(1) Virginia statutes fail to provide
meaningful guidance to the jury because
the aggravating factors are vague,
rejected in Jackson, 267 Va. at 205-06,
590 S.E.2d at 535 (dangerousness);
Powell, 267 Va. at 136, 590 S.E.2d at 554
(both); Wolfe, 265 Va. at 208, 576 S.E.2d
at 480;
(2) The Virginia scheme fails to provide the
jury with guidance regarding its
consideration of mitigating evidence,
rejected in Buchanan v. Angelone, 522
U.S. 269, 275-76 (1998); Jackson, 267 Va.
at 206, 590 S.E.2d at 536; Johnson, 267
Va. at 69, 591 S.E.2d at 56; Jackson v.
Commonwealth, 266 Va. 423, 429, 587
S.E.2d 532, 538 (2003); Lovitt, 260 Va.
at 508, 537 S.E.2d at 874;
(3) The Commonwealth is permitted to prove
future dangerousness by evidence of
unadjudicated criminal conduct without
any standard of proof, rejected in
Jackson, 267 Va. at 206, 590 S.E.2d at
536; Powell, 267 Va. at 136, 590 S.E.2d
at 554; Johnson, 267 Va. at 70, 591
S.E.2d at 56; Bell v. Commonwealth, 264
Va. 172, 203, 563 S.E.2d 695, 716 (2002),
cert. denied, 537 U.S. 1123 (2003).
Additionally, we note that all Muhammad's
assignments of error regarding
unadjudicated criminal conduct have been
rejected either because they were not
preserved in the trial court (Rule 5:25)
or they have been inadequately briefed
(Rule 5:17(c)). Consequently, no issues
related to unadjudicated criminal conduct
are properly before the Court.
(4) The statute allows, but does not require,
that a sentence of death be set aside
upon a showing of good cause and permits
the court to consider hearsay in a post-
sentence report, rejected in Jackson, 267
Va. at 206, 590 S.E.2d at 536; Powell,
267 Va. at 136, 590 S.E.2d at 555;
112
Johnson, 267 Va. at 70, 591 S.E.2d at 56;
Jackson, 266 Va. at 430, 587 S.E.2d at
539;
(5) This Court fails to conduct an adequate
proportionality review and
passion/prejudice review, rejected in
Jackson, 267 Va. at 206, 590 S.E.2d at
536; Powell, 267 Va. at 136, 590 S.E.2d
at 555; Johnson, 267 Va. at 70, 591
S.E.2d at 56.
XV. Statutory Review
Muhammad does not argue that his sentences of death are
excessive, arbitrarily imposed, or disproportionate to other
similar cases. Nonetheless, pursuant to Code § 17.1-
313(C)(2), we must conduct a review of these issues.
Upon review of the record, we conclude that the trial
court conducted the proceedings related to this case with
patience and fairness. Muhammad was given access to the trial
court to present each and every issue he desired to present
and was entitled to present. The jury selection process was
untainted by pretrial publicity. The trial court's granting of
the motion to change venue provided additional protection to
the right of the defendant to a fair trial. The record
contains no reversible error. Simply stated, we find not even
a hint of arbitrariness or prejudice in the conduct of the
trial or the jury's imposition of the sentences of death.
Our proportionality review is not undertaken to "insure
complete symmetry among all death penalty cases." Orbe v.
113
Commonwealth, 258 Va. 390, 405, 519 S.E.2d 808, 817 (1999),
cert. denied, 529 U.S. 1113 (2001). The review we employ is
done to "identify and invalidate the aberrant death sentence."
Id.
With regard to the death sentences imposed for the
killing of more than one person in three years or in the same
act or transaction we have reviewed our cases involving the
killing of two or more people. Of the fourteen cases in which
the death sentence was given, five involved more than two
killings. Buchanan v. Commonwealth, 238 Va. 389, 384 S.E.2d
757 (1989), cert. denied, 493 U.S. 1063 (1990) (four victims);
Barnes v. Commonwealth, 234 Va. 130, 360 S.E.2d 196 (1987),
cert. denied, 484 U.S. 1036 (1988) (two victims); Davidson v.
Commonwealth, 244 Va. 129, 419 S.E.2d 656, cert. denied, 506
U.S. 959 (1992) (three victims); Thomas v. Commonwealth, 244
Va. 1, 419 S.E.2d 606, cert. denied, 506 U.S. 958 (1992) (two
victims); Stewart v. Commonwealth, 245 Va. 222, 427 S.E.2d
394, cert. denied, 510 U.S. 848 (1993) (two victims); Burket
v. Commonwealth, 248 Va. 596, 450 S.E.2d 124 (1994), cert.
denied, 514 U.S. 1053 (1995) (two victims); Goins v.
Commonwealth, 251 Va. 442, 470 S.E.2d 114, cert. denied, 519
U.S. 887 (1996) (five victims plus the death of a fetus); Kasi
v. Commonwealth, 256 Va. 407, 508 S.E.2d 57 (1998), cert.
denied, 527 U.S. 1038 (1999) (two victims); Bramblett v.
114
Commonwealth, 257 Va. 263, 513 S.E.2d 400, cert. denied, 528
U.S. 952 (1999) (four victims); Walker v. Commonwealth, 258
Va. 54, 515 S.E.2d 565 (1999), cert. denied, 528 U.S. 1125
(2000) (two victims); Zirkle v. Commonwealth, 262 Va. 631, 553
S.E.2d 520 (2001) (two victims); Hudson v. Commonwealth, 267
Va. 29, 590 S.E.2d 362 (2004) (three victims); Elliott v.
Commonwealth, 267 Va. 396, 593 S.E.2d 270 (2004), cert.
denied, ___ U.S. ___, 125 S.Ct. 875 (2005) (two victims);
Winston v. Commonwealth, 268 Va. 564, 604 S.E.2d 21 (2004)
(two victims).
In the cases in which the death sentence was sought but a
life sentence was given, of the fourteen cases only four
involved the killing of more than two persons and three of
those cases had unusual circumstances. Woodfin v.
Commonwealth, 236 Va. 89, 372 S.E.2d 377 (1988), cert. denied,
490 U.S. 1009 (1989) (two victims); Mundy v. Commonwealth, 11
Va. App. 461, 390 S.E.2d 525 (1990), cert. denied, 502 U.S.
840 (1991) (two victims); Moran v. Commonwealth, No. 1708-90-3
(Va. Ct. App. Nov. 5, 1991) (two victims); Stephenson v.
Commonwealth, No. 2080-91-1 (Va. Ct. App. Jan. 11, 1993) (two
victims); Hamlin v. Commonwealth, No. 1279-99-2 (Va. Ct. App.
Apr. 25, 2000) (four victims killed by arson); Novak v.
Commonwealth, 20 Va. App. 373, 457 S.E.2d 402 (1995), cert.
denied, 519 U.S. 1006 (1996) (two victims); Pritchett v.
115
Commonwealth, No. 1968-95-3 (Va. Ct. App. Apr. 1, 1996) (two
victims); Owens v. Commonwealth, No. 2259-95-1 (Va. Ct. App.
Nov. 19, 1996) (four victims; defendant was 16 years old at
time of offense); Williams v. Commonwealth, No. 2423-96-2 (Va.
Ct. App. Oct. 28, 1997) (three victims; defendant was alleged
to be brain-damaged and border-line mentally retarded);
Stoneman v. Commonwealth, No. 3069-96-3 (Va. Ct. App. June 9,
1998) (two victims); Evans v. Commonwealth, No. 2089-99-3 (Va.
Ct. App. Apr. 26, 2000) (two victims); Burlile v.
Commonwealth, 261 Va. 501, 544 S.E.2d 360 (2001) (two
victims); Hairston v. Commonwealth, No. 1722-01-3 (Va. Ct.
App. Mar. 28, 2002) (two victims); Cooper v. Commonwealth, No.
0819-03-4 (Va. Ct. App. Aug. 24, 2004) (three victims).
Additionally, we reviewed two cases in which the
Commonwealth did not seek the death penalty for the killing of
two or more persons. In those two cases there were only two
murders in each case. Smith v. Commonwealth, No. 0628-93-1
(Va. Ct. App. Feb. 1, 1994) (two victims); Hobbs v.
Commonwealth, No. 1301-99-1 (Va. Ct. App. Mar. 17, 2000) (two
victims).
Apart from the Cooper case, except where unusual
circumstances existed, all the capital prosecutions in
Virginia that we have reviewed wherein more than two people
116
were murdered and the prosecution was based upon Code § 18.2-
31(7) or (8) resulted in the death penalty being imposed.
This case represents the first capital murder case with a
death sentence under the terrorism statute. We are unaware of
any state that has reviewed a death sentence predicated upon a
similar provision.
We think the death penalty is not an excessive nor a
disproportionate penalty for a case with evidence of ten
murders and six malicious woundings. Similarly, the evidence
presented on the terrorism count independently supports the
imposition of the death penalty.
Muhammad's crimes cannot be compared to any other case in
the Commonwealth. The evidence of vileness and future
dangerousness in support of the jury's verdict justifies its
sanction of death.
Muhammad with his sniper team partner, Malvo, randomly
selected innocent victims. With calculation, extensive
planning, premeditation, and ruthless disregard for life,
Muhammad carried out his cruel scheme of terror. He did so by
employing stealth and secrecy using a sniper methodology that
put his victims at great risk while reducing his own. He
employed a weapon with truly awesome power to inflict massive
injury upon his victims. Muhammad recruited a younger boy,
117
Malvo, and carefully trained and guided him in this murderous
enterprise.
His victims came from all walks of life who were engaged
in everyday pursuits when their lives were tragically ended or
altered. Paul LaRuffa, Muhammad Rashid, Hong Im Ballenger,
Claudine Parker, and Kelly Adams were closing and leaving
their places of business. Sarah Ramos was sitting on a bench
in front of a store. Lori Lewis-Rivera was vacuuming her car
at a gas station. Paschal Charlot was crossing an
intersection as a pedestrian. Caroline Seawell and Linda
Franklin were putting packages in their respective
automobiles. Iran Brown was walking to school. Dean Meyers,
Kenneth Bridges, and Premkumar Walekar were putting fuel in
their vehicles at gasoline stations. Jeffrey Hopper was
leaving a restaurant after a meal. Conrad Johnson, a bus
driver, was standing in the doorway of his bus. Muhammad
inflicted death or massive injury upon these victims as he
pursued his mission of terror.
Muhammad's threats to those within the communities he
stalked including the warning, "Your children are not safe
anywhere at anytime." He communicated his desire to extort
money from the government through the demand to deposit ten
million dollars in an account connected to a card for
accessing the account through automated teller machines.
118
Whatever else may have been his intentions, he certainly
intended to intimidate the civilian population and to
influence the conduct and activities of government. He did so
with breathtaking cruelty. If society's ultimate penalty
should be reserved for the most heinous offenses, accompanied
by proof of vileness or future dangerousness, then surely,
this case qualifies.
XVI. 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. Further, we find no reason to
commute or set aside the sentences of death. We will affirm
the judgment of the trial court.
Affirmed.
JUSTICE KINSER, concurring.
I fully agree with the majority opinion in this case. I
write separately to address the dissent’s failure to view the
evidence in the light most favorable to the Commonwealth, to
consider the circumstantial evidence, and to address the
Commonwealth’s theory of the case. Unlike the dissent, I
conclude that the Commonwealth did indeed prove beyond a
reasonable doubt that John Allen Muhammad was a principal in
the first degree in the murder of Dean Meyers under Code
119
§ 18.2-31(8), “[t]he willful, deliberate, and premeditated
killing of more than one person within a three-year period.”
Certain basic and well-established principles must guide
the appellate review of this case. When the sufficiency of
the evidence is challenged on appeal, this Court must view the
evidence and all reasonable inferences flowing therefrom in
the light most favorable to the prevailing party at trial, in
this case the Commonwealth. Commonwealth v. Norman, 268 Va.
539, 545-46, 604 S.E.2d 82, 85 (2004); Commonwealth v. Hudson,
265 Va. 505, 514, 578 S.E.2d 781, 786, cert. denied, 540 U.S.
972 (2003). It is our duty to affirm the trial court’s
judgment unless that judgment is plainly wrong or without
evidence to support it. Code § 8.01-680; Barrett v.
Commonwealth, 268 Va. 170, 179, 597 S.E.2d 104, 108 (2004);
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d
534, 537 (1975).
In viewing the evidence in the light most favorable to
the prevailing party at trial, we must consider all the
evidence, both direct and circumstantial. “There is no
distinction in the law between the weight or value to be given
to either direct or circumstantial evidence.” Hudson, 265 Va.
at 512, 578 S.E.2d at 785. “Indeed, in some cases
circumstantial evidence may be the only type of evidence which
can possibly be produced.” Stamper v. Commonwealth, 220 Va.
120
260, 272, 257 S.E.2d 808, 817 (1979), cert. denied, 445 U.S.
972 (1980) (citing Toler v. Commonwealth, 188 Va. 774, 780, 51
S.E.2d 210, 213 (1949)).
Instead of adhering to these principles of appellate
review, the dissent presents the evidence in the light most
favorable to Muhammad rather than the Commonwealth. The
dissent does so by failing to address the compelling
circumstantial evidence concerning the other 15 shootings that
occurred during a span of 47 days in addition to the Meyers
shooting and the similarities among those shootings that
demonstrate the method employed by Muhammad and Lee Boyd Malvo
in the murder of Meyers. There is no mention of the forensic
evidence establishing that the .223 caliber Bushmaster rifle
recovered when Muhammad and Malvo were apprehended was used in
13 of the 16 shootings, including the Meyers murder, or the
evidence showing that the rifle is equivalent to a type of
weapon used by military snipers. Likewise, the dissent takes
no notice of the fact that, in 10 of the 16 shootings, the
Caprice that Muhammad purchased after the first shooting and
in which he and Malvo were sleeping when arrested was seen in
the vicinity of those shootings, including the Meyers
shooting, either before, at the time of, or soon after they
occurred. In the Meyers shooting, the Caprice actually was
seen in the area both before and after the shooting.
121
The dissent further makes no reference to the alterations
to the Caprice enabling the shooter in the two-man sniper team
to fire a high-velocity rifle from the trunk while minimizing
the shooter’s visibility. Finally, there is no mention of the
many tools used by sniper teams that were recovered in the
Caprice along with the Bushmaster rifle: a bipod system for
support of the rifle; holographic and telescopic scopes to aid
sighting; global positioning system equipment to locate and
relocate a vantage point for the long-range shot; “walkie-
talkie” handheld radio sets for communication; bungee cords
for easy “break down” of the rifle for transportation
purposes; and silencers. The dissent’s failure to consider
all the evidence, both direct and circumstantial, in the light
most favorable to the Commonwealth is contrary to the
principles of appellate review.
The dissent also does not address the Commonwealth’s
theory of the case. The Commonwealth predicated its theory on
the methodology employed by a two-man sniper team. The
testimony of Sergeant Major Mark Spicer clearly demonstrated
that such a team employs one member as the long-range
“shooter” and the other member as the “spotter.” The
spotter’s job is to determine when the target is within the
zone of fire and a shot can be taken, given the other
surrounding circumstances, and to inform the shooter, who is
122
positioned in an obscure place, of these facts and to give the
order to shoot at the opportune moment.
It is the order to shoot that differentiates this case
from the dissent’s analogy to a “lookout” or “wheelman.” The
typical lookout or wheelman in a robbery does not direct at
what moment the robber brandishes a weapon at a bank teller or
store clerk and demands money. In the present case, it is
that direct and immediate action by the spotter in giving the
order to shoot that forms the basis of the Commonwealth’s
theory that Muhammad acted as a principal in the first degree.
Such conduct by the spotter in a two-man sniper team is not
“indirect” and is not “the quintessence of a principal in the
second degree.”
The dissent, however, never explains why such action by
the spotter would not make that person a principal in the
first degree. Instead, the dissent concludes that Malvo made
the final decision about whom to shoot and when to do so. The
dissent states, again not in the light most favorable to the
Commonwealth, that “Malvo could have picked any target and
decided at any time to fire or not,” and thereby reduce
Muhammad’s role to that of merely giving advice about the
traffic flow on a multi-lane highway. In other words, the
dissent does not deal with the Commonwealth’s theory that
123
Muhammad gave the order to shoot and the circumstantial
evidence that supports the theory.
Under our case law, “where two or more persons take a
direct part in inflicting fatal injuries, each joint
participant is an ‘immediate perpetrator,’ ” i.e., a principal
in the first degree. Strickler v. Commonwealth, 241 Va. 482,
495, 404 S.E.2d 227, 235, cert. denied, 502 U.S. 944 (1991);
see also Remington v. Commonwealth, 262 Va. 333, 349-50, 551
S.E.2d 620, 630 (2001), cert. denied, 535 U.S. 1062 (2002);
Williams v. Commonwealth, 248 Va. 528, 545, 450 S.E.2d 365,
375 (1994), cert. denied, 515 U.S. 1161 (1995). In Strickler,
the Commonwealth’s theory was that Strickler and another
individual had jointly participated in the actual killing.
Id. at 494, 404 S.E.2d at 235. The Commonwealth argued that,
since the victim’s death was caused by the crushing of her
skull with a 69-pound rock, it would have been necessary for
one assailant to hold her down on the ground while the other
assailant lifted the rock and dropped it on her head. Id. We
agreed and concluded that the weight and size of the rock
“made it apparent that a single person could not have lifted
it and dropped or thrown it while simultaneously holding the
victim down.” Id. Even though the evidence did not show
which assailant wielded the rock, we held that Strickler took
a direct part in inflicting the fatal injuries and was
124
therefore an “immediate perpetrator.” Id. at 495, 404 S.E.2d
at 235.
Turning to the evidence in this case and viewing it in
the light most favorable to the Commonwealth, I conclude that
Muhammad, like Strickler, acted as a principal in the first
degree. The dissent does not dispute, nor can it, that
Muhammad, Malvo, the Caprice, and the Bushmaster rifle were
all present at the scene of the Meyers shooting. In fact,
soon after the shooting, Muhammad and the Caprice were seen in
a parking lot directly across the street from the gas station
where Meyers was shot. A police officer questioned Muhammad
about why he was in the parking lot. Muhammad told the
officer that the police had directed him into that parking
lot. However, the officer explained that, after the shooting,
the procedure was to direct traffic away from the area, not
into it.
Also, a map containing both Muhammad’s and Malvo’s
fingerprints was found in the parking lot. Forensic evidence
established that the bullet recovered during the autopsy of
Meyers’ body was fired from the Bushmaster rifle. While only
Malvo’s fingerprints were found on the Bushmaster rifle, DNA
matching that of both Muhammad and Malvo was found on the
rifle.
125
The question is whether the “combined force” of this
evidence along with “many [other] concurrent and related
circumstances” surrounding not only the Meyers shooting but
also the other 15 shootings and the sniper tools found in the
Caprice when Muhammad and Malvo were apprehended establishes
beyond a reasonable doubt that Muhammad acted as an immediate
perpetrator in the Meyers killing. Hudson, 265 Va. at 514,
578 S.E.2d at 786 (citation omitted). Each piece of
circumstantial evidence is not to be viewed in isolation. Id.
Soon after the Meyers shooting, the Caprice, with
Muhammad in the driver’s seat, was in a parking lot directly
across a nine-lane highway from the gas station where Meyers
was killed. The location of the parking lot provided a direct
line of fire to the gas station. Due to the traffic on this
multi-lane highway and the small hole in the trunk of the
Caprice through which to fire the Bushmaster rifle, the jury
could reasonably have inferred that the shooter fired upon
order from the spotter because only the spotter could
determine the opportune moment to fire a shot that would avoid
oncoming vehicular traffic, then strike and kill the victim.
See Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563,
567-68 (1976) (“it is within the province of the jury to
determine what inferences are to be drawn from proved facts,
126
provided the inferences are reasonably related to those
facts”).
Thus, in this case, Muhammad was either the shooter,
making him a principal in the first degree, or the spotter,
also making him a principal in the first degree. The evidence
concerning all 16 shootings and the reasonable inferences
flowing therefrom viewed in the light most favorable to the
Commonwealth demonstrate that, in this two-man sniper team,
the spotter took an immediate and direct action in the Meyers
murder by giving the order to shoot, an act that, in my view,
is equivalent to pulling the trigger or holding the victim
down on the ground as in Strickler. Such action by the
spotter goes beyond the conduct of a principal in the second
degree who merely encourages, incites, or aids in the
commission of a crime. See Jones v. Commonwealth, 208 Va.
370, 372-73, 157 S.E.2d 907, 909 (1967).
For these reasons, I respectfully concur and, like the
majority, would affirm all the convictions.
JUSTICE AGEE, with whom JUSTICE LACY and JUSTICE KOONTZ join,
dissenting in part and concurring in part.
The common law classification of criminal perpetrators
that distinguished between principals in the first and second
degree has become of limited significance in modern times.
127
Nearly all jurisdictions have enacted provisions similar to
Virginia Code § 18.2-18, which erase the distinction between
principals of the first and second degree by treating both
categories of criminal actors as principals in the first
degree for purposes of indictment, trial, conviction, and
punishment.
However, the common law distinction between principals of
the first and second degrees remains of significant importance
in a case of capital murder in Virginia because the General
Assembly has specifically provided in Code § 18.2-18 that a
“principal in the second degree to a capital murder shall be
indicted, tried, convicted and punished as though the offense
were murder in the first degree.” Thus, unless the
Commonwealth proved beyond a reasonable doubt that John Allen
Muhammad was a principal in the first degree to the murder of
Dean Meyers under Code § 18.2-31(8), the plain language of
Code § 18.2-18 bars conviction and punishment of Muhammad for
capital murder under Code § 18.2-31(8). Accordingly, the
common law distinction between acts sufficient to constitute a
principal in the first degree and those of a principal in the
second degree is of vital importance.
At common law, a principal in the first degree is a
person who engages in criminal conduct by his own
hand—he fires the gun that kills, he takes and
carries away the property of another.
128
. . . .
At common law, a principal in the second
degree is a person who is present at the
scene of a crime, but does not engage in
the criminal conduct; he merely aids and
abets the principal in the first degree in
committing the crime. He may be actually
present, assisting the principal in the
first degree, standing ready to assist if
needed, or commanding, counseling, or
otherwise encouraging the principal in the
first degree to commit the crime; or,
although at a distance from the scene of
the crime, he may be deemed present when
he is acting as a driver of the getaway
car or as a lookout with instructions to
warn the principal in the first degree if
anyone approaches.
1 Charles Torcia, Wharton's Criminal Law §§ 30-31 (15th ed.
1993).
Based on the record in this case, the Commonwealth did
not prove that Muhammad was a principal in the first degree to
the capital murder of Dean Meyers under Code § 18.2-31(8).
Under established law, Muhammad may be a principal in the
first degree to the Meyers murder in two circumstances: (1) if
he actually shot Meyers or (2) if he and Lee Boyd Malvo are
found to be joint principals, with each acting as an
“immediate perpetrator” in the killing. The record does not
establish that the Commonwealth proved either circumstance.
Our decision in Rogers v. Commonwealth, 242 Va. 307, 410
S.E.2d 621 (1991), precludes finding that Muhammad is a
principal in the first degree as the actual shooter of Meyers
129
under the facts of this case. In Rogers, we reversed a
defendant’s capital murder conviction because the evidence
placed the defendant and another man in the victim’s house at
the time of the murder and the Commonwealth failed to present
“any evidence . . . which places the murder weapon in
defendant’s hands.” Id. at 319, 410 S.E.2d at 628. “Stated
differently, the Commonwealth . . . failed to exclude [the
second man] as the perpetrator.” Id.
Following Rogers, Muhammad cannot be a principal in the
first degree as the actual shooter of Meyers because the
Commonwealth has not excluded Malvo as that person, and it
presented no evidence that Muhammad was the actual shooter.
“Because the circumstances of defendant’s conduct do not
exclude the reasonable hypothesis that [the second man
(Malvo)] killed the victim, the capital murder prosecution
fails.” Id. at 320, 410 S.E.2d at 629. Therefore, Muhammad
may not be convicted of Meyers’ capital murder upon this
record if the Commonwealth’s position is Muhammad actually
shot Meyers.
The Commonwealth primarily relies, however, on an
expansive reading of the concept of “immediate perpetrator”
based on Sergeant Spicer’s theory of how a sniper team should
operate. The majority opinion adopts this theory and
concludes both Malvo and Muhammad are culpable as principals
130
in the first degree because “actual participation together in
a unified act” renders each an immediate perpetrator. In
doing so, the Commonwealth and the majority opinion reach
beyond any precedent of this court and ignore clear
foundations of the criminal law that have long defined the
distinction between principals of the first and second degree.
Our precedent establishes that co-actors in a capital murder
can only be immediate perpetrators when each actor undertook a
direct act “in the immediate presence of the victim’s body
when the fatal blows were struck and, hence, had jointly
participated in the killing.” Strickler v. Commonwealth, 241
Va. 482, 494, 404 S.E.2d 227, 235 (1991), cert. denied, 502
U.S. 944 (1991).
In Coppola v. Commonwealth, 220 Va. 243, 257 S.E.2d 797
(1979), cert. denied, 444 U.S. 1103 (1980), the victim died
from blows to the head. Id. at 246, 257 & n.5, 257 S.E.2d at
800, 807 & n.5. In the course of an armed robbery, the
defendant beat the victim’s head against the floor and a
codefendant struck her in the head with his fist. Id. at 246,
257 S.E.2d at 800. We affirmed the defendant’s death sentence
finding him to be “an immediate perpetrator” because both he
and his codefendant directly assaulted the victim as they
“jointly participated in the fatal beating.” Id. at 256, 257
131
S.E.2d at 806. This action rendered the defendant a principal
in the first degree.
In Strickler v. Commonwealth, 241 Va. 482, 404 S.E.2d 227
(1991), the evidence showed that the victim was killed by a
blow to the head from a 69 pound rock. We noted “a single
person could not have lifted [the rock] and dropped or thrown
it while simultaneously holding the victim down.” Id. at 494,
404 S.E.2d at 235. We affirmed the conviction for capital
murder holding that because the defendant “[took] a direct
part in inflicting [the] fatal injuries” he was an “immediate
perpetrator” and thus a principal in the first degree. Id. at
495, 404 S.E.2d at 235.
In Lenz v. Warden, 265 Va. 373, 381, 579 S.E.2d 194, 199
(2003), cert. denied, ___ U.S. ___, 124 S.Ct. 2933 (2004),
Lenz and another convict, Remington, inflicted “68 stab wounds
and all the wounds contributed to the victim’s death.” Lenz
argued that “he could only be convicted of capital murder in
the event the jury found beyond a reasonable doubt that he was
the triggerman.” Id. (internal quotation marks omitted). We
disagreed, holding that “when two or more persons take a
direct part in inflicting injuries, each joint participant is
an immediate perpetrator for the purposes of the capital
murder statutes.” Id. (citation and internal quotation marks
omitted).
132
In Remington v. Commonwealth, 262 Va. 333, 551 S.E.2d 620
(2001), cert. denied, 535 U.S. 1062 (2002), Lenz’ co-
perpetrator was convicted for the same capital murder. We
affirmed the trial court’s denial of the defendant’s proffered
jury instructions that would have instructed the jury that he
was a principal in the second degree unless he inflicted the
actual fatal blow that caused the victim’s death out of the
many blows struck. Because the evidence established “that
Remington and Lenz jointly participated in [the victim’s]
death[,]” we found that the trial court did not err in
refusing the instruction. Id. at 350, 551 S.E.2d at 630.
Similarly, the Court of Appeals found the defendant in
Hancock v. Commonwealth, 12 Va. App. 774, 407 S.E.2d 301
(1991), to be an immediate perpetrator of attempted capital
murder by arson when he poured gasoline on a cushion while
another person immediately ignited it. The court noted that
“[b]oth men were principals in the first degree. Both
provided the direct means to ignite the fire. Placing the
flammable material in place for another to ignite it makes
that person a perpetrator.” Id. at 781, 407 S.E.2d at 305-06.
All of these cases involve direct, contemporaneous acts
on the part of the co-perpetrators that combined to
proximately inflict the injury on the victim. In each case,
both perpetrators were physically present and personally
133
participated by a direct act against the victim to accomplish
the murder, or to set the fire in Hancock. In the case at
bar, however, there is no such evidence of a similar direct
act by Muhammad.
Assuming Muhammad acted as hypothesized by the
Commonwealth's witness, Mark Spicer, in positioning the
Caprice in the Bob Evans parking lot to face the gas station
and communicating to Malvo that the coast was clear to fire at
Meyers, that is not the act of a principal in the first degree
under Virginia law. Such conduct is the quintessence of
activity by a principal in the second degree: “encouraging,
inciting, or in some manner offering aid in the commission of
the crime . . . lending countenance, or otherwise aiding while
another did the act.” Jones v. Commonwealth, 208 Va. 370,
373, 157 S.E.2d 907, 909 (1967).
In that regard, Muhammad’s actions were of the same
character as those of a lookout or wheelman in a robbery.
Such a person may provide the means and direction for the
commission of the robbery by driving the actual perpetrators
to the scene and keeping watch while the others directly
commit the crime. Like Muhammad, the wheelman may communicate
by walkie-talkie or cell phone to the actual perpetrators
instructing them as to when to commit the robbery and then
134
exit the premises in heavy traffic. 3 Undoubtedly these acts
accord the actual perpetrators, who take the immediate and
direct action to effectuate the robbery, an easier task with
an increased likelihood of escape. Nevertheless, no serious
argument can be made such a wheelman is a principal in the
first degree under our jurisprudence.
That is because the wheelman takes an indirect role, not
a direct role, in the crime of robbery. He is present,
keeping watch and offering his counsel and direction to commit
the crime to the actual perpetrators, which is Muhammad’s role
under the Commonwealth's theory of the case. The wheelman is
an actual participant in the unified act of disparate persons
culminating in a robbery, just as Muhammad was an actual
participant in an act with Malvo that resulted in Meyers’
murder. Neither the wheelman, nor Muhammad, in the given
circumstances, can be deemed an immediate perpetrator and thus
a principal in the first degree under Virginia law.
The crimes in Strickler, Coppola, Lenz, Remington and
Hancock could not have occurred without the direct,
contemporaneous, physical act of both perpetrators. The fire
3
Grant v. Commonwealth, 216 Va. 166, 168-69, 217 S.E.2d 806, 808 (1975) (lookout
and driver of the getaway car convicted as principal in the second degree); Camphor v. State,
196 A.2d 75, 75 (Md. 1963) (accomplice who distracted the attention of a store clerk while
immediate perpetrator stole a sewing machine was a principal in the second degree); Vincent
v. State, 151 A.2d 898, 902-03 (Md. 1959) (lookout and driver of getaway car who provided a
second set of clothing to the robbers was a principal in the second degree).
135
could not have been set without the direct, physical
participation of both defendants in Hancock. Similarly, the
murder in Strickler could not have occurred without both
perpetrators acting together directly on the victim. The
defendants in Coppola, Lenz and Remington each directly
participated in the physical beating or stabbing of the
victim. These direct acts define an immediate perpetrator,
rendering each actor a principal in the first degree, but
stand in contrast to Muhammad’s indirect acts. The record in
this case, viewed in the light most favorable to the
Commonwealth, is simply devoid of the direct acts regarding a
victim that our precedent requires to find Muhammad an
immediate perpetrator acting as a principal in the first
degree.
Assuming that the events occurred as the Commonwealth
theorizes, it was nonetheless, Malvo, not Muhammad, who
finally sighted the rifle to its target and made the ultimate
decision to pull the trigger. Malvo could have picked any
target and decided at any time to fire or not. While the
range of Malvo’s vision was more restricted than Muhammad’s,
the record reflects that Malvo was not “blind” and dependent
on Muhammad in order to shoot Meyers. Spicer’s own testimony
confirms the shooter had “a very large field of view by
slightly moving [his] head left or right while still
136
maintaining a very small outward chance of . . . being seen.”
The prosecutor even argued this point to the jury, noting that
the shooter had “a much wider field of vision and a much
narrower exposure.” Obviously, Muhammad's advice and
direction to Malvo of the traffic flow along the multiple lane
highway made Malvo’s choice easier and more likely to succeed.
But in the end, it was Malvo who had to make the final
decision to shoot and performed the direct act of firing the
rifle.
Put simply, there is a failure of proof to establish
Muhammad as a principal in the first degree so as to sustain
his conviction under Code § 18.2-31(8). The evidence in this
record, viewed in the light most favorable to the Commonwealth
and indulging all the inferences from its theory of the case,
establishes Muhammad's actions as those of a principal in the
second degree, “actually present, assisting the principal in
the first degree [Malvo], standing ready to assist if needed,
or commanding, counseling, or otherwise encouraging the
principal in the first degree to commit the crime,” 1
Wharton's Criminal Law, supra, at § 31. Conversely, this same
evidence of Muhammad commanding and directing Malvo's actions
effectively proves the requisite conduct for the conviction
under Code § 18.2-31(13) for "a killing pursuant to . . .
direction and order." Code § 18.2-18.
137
Virginia law is clear that “a principal in the second
degree, may [not] be convicted of capital murder under the
provisions of [the] Code,” Coppola, 220 Va. at 256, 257 S.E.2d
at 806, unless one of the enumerated exceptions such as under
Code § 18.2-31(13) applies. Thus, we have noted that
[o]nly the actual perpetrator of the crime may
be convicted of capital murder . . . Thus,
neither an accessory before the fact nor a
principal in the second degree may be so
convicted. . . . The Commonwealth has the
burden of proving beyond a reasonable doubt
that one accused of capital murder was the
actual perpetrator of the crime. Suspicion of
guilt, however strong, or even a probability of
guilt is insufficient to support a conviction.
Rogers, 242 Va. at 317, 410 S.E.2d at 627 (citations and
internal quotation marks omitted).
The General Assembly has specifically limited a capital
murder conviction under Code § 18.2-31(8) by its enactment of
Code § 18.2-18. In doing so, the General Assembly has
mandated that a principal in the second degree cannot be
convicted of capital murder, but his conviction is limited to
murder in the first degree. This statutory mandate is binding
on the judiciary until altered by the General Assembly.
For the forgoing reasons, Muhammad’s conviction and
sentence for the capital murder of Dean Meyers under Code
§ 18.2-31(8) should be reversed and remanded according to the
statutory directive of Code § 18.2-18. Accordingly, I
138
respectfully dissent from section II(B)(1) of the majority
opinion regarding the conviction and sentence under Code
§ 18.2-31(8). To the extent the conviction under Code § 18.2-
31(13) is based upon a principal in the first-degree analysis,
I respectfully dissent from section II(B)(2), but I concur in
the alternative ground in section II(B)(2) and would thus
affirm the conviction and sentence of death under Code § 18.2-
31(13). Otherwise, I concur in the majority opinion.
139