Winston v. Com.

Present: Hassell, C.J., Lacy, Keenan, Koontz, Lemons, and
Agee, JJ., and Russell, S.J.

LEON JERMAIN WINSTON

v. Record Nos. 040686 & OPINION BY JUSTICE DONALD W. LEMONS
040687 November 5, 2004

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge

In these appeals, we consider three capital murder

convictions and three death sentences imposed upon Leon Jermain

Winston, along with his convictions upon two counts of

attempted robbery, statutory burglary, malicious discharge of a

firearm, and five counts of use of a firearm in the commission

of a felony.

I. Facts and Proceedings Below

A. Background

On the morning of Friday, April 19, 2002, Rhonda and

Anthony Robinson ("Rhonda" and "Anthony") were shot and killed

in their home at 410 Sussex Street in Lynchburg. When police

arrived, they found that the rear door to the house had been

forcibly opened. Anthony's body was at the foot of the stairs

and five 9-millimeter shell casings were found around and under

his body. Rhonda's body was found on the floor of the upstairs

bedroom shared by her two daughters. Four 9-millimeter shell

casings were found upstairs.

1
 Autopsies were performed on both Rhonda and Anthony.

Toxicology reports found no indication of alcohol, opiates, or

cocaine in either. The medical examiner concluded that all

wounds were inflicted upon both victims while they were alive.

The medical examiner also concluded that Rhonda was pregnant at

the time she was murdered.

Anthony died from blood loss caused by eight gunshot

wounds to his head, chest, abdomen, and upper and lower

extremities. In numbering the bullet wound tracks, the medical

examiner did not indicate the sequence in which Anthony was

shot. However, the medical examiner established that a 9-

millimeter semi-automatic handgun caused tracks 1 through 7 and

a .38 caliber revolver caused track 8.

The bullet in track 1 entered Anthony's head above and

behind his left ear, passed through his skull causing a "large

amount of destruction" before exiting through his right eye.

The bullet in track 2 entered Anthony's right jaw and exited

out of his mouth. The bullet in track 3 grazed the surface of

Anthony's left cheek before it entered his chest, damaged his

left lung and heart, and stopped in his abdomen. The bullet in

track 4 passed front-to-back through Anthony's right shoulder.

The bullet in track 5 passed from right to left through the

subcutaneous tissue of Anthony's abdomen. The bullet in track

6 entered Anthony's left upper back, and then passed through

2
his ribs, left lung, heart, liver, and stomach. The bullet in

track 7 entered Anthony's right thigh and then passed through

it. The .38 caliber bullet in track 8 entered the right side

of Anthony's groin at the base of his penis, and passed through

the left scrotal sac before lodging in his left thigh.

Rhonda's death was caused by blood loss due to eight

gunshot wounds. The medical examiner identified three wound

tracks associated with these wounds. The bullet that caused

the first wound track entered at the top of her head and passed

through her forehead. The bullet that caused the second wound

track passed through Rhonda's chin into her neck and chest,

where it hit major blood vessels before exiting through her

back. The bullet that caused the third wound track passed

through Rhonda's neck.

Evidence at trial revealed that on the morning of April

19, 2002, then eight-year-old Niesha M. Whitehead was awakened

by Rhonda, her mother, calling out that "someone is in the

house." Niesha saw two black men outside the second floor

bedroom she shared with her sister, Tiesha, then five years

old. Niesha testified that she saw her stepfather, Anthony, go

downstairs with one of the two men. This man was dressed in

black clothing and wore gloves. Niesha called him "Mr. No

Name." She testified that "Mr. No Name" had a tattoo that

looked like "a big dog." Significantly, Winston concedes that

3
he was present on this evening, but asserts on brief before us

that he did not shoot anyone. As between Winston and the other

man who was an intruder in the home, Kevin Brown ("Brown"),

Winston is the person with a tattoo of a dog on his arm.

Niesha testified that after Anthony went downstairs with "Mr.

No Name," she heard shots.

Brown, who Niesha called "Mr. No Name's Friend," stayed

upstairs with Rhonda until "Mr. No Name" came back upstairs.

"Mr. No Name" chased Rhonda into the girls' bedroom and shot

Rhonda in front of the girls. Niesha led her sister to a

closet where the two girls hid. Later, Niesha left the closet

and discovered the bodies of her mother and stepfather.

A cab driver testified that he picked up two black males,

one of whom he identified as Brown, in the early morning hours

of April 19, 2002. He drove the men to several homes where the

two men would leave the cab and walk around the house checking

the windows, but not entering the houses. He remembered that

one of the houses was on Sussex Street. The Robinson home was

on Sussex Street.

Michelle Lipford, who had purchased drugs from Winston and

Brown in the past and had been sexually intimate with Winston,

testified that at about 5:00 a.m. on April 19, 2002, she drove

Winston and Brown to the Robinson's home on Sussex Street. She

testified that she parked a block away from the Robinson home

4
and Winston and Brown left the car for approximately 5 minutes

and then returned. They went to her home on Pierce Street.

Winston and Brown asked her to drive them back to Sussex

Street. She complied and parked a block away from the Robinson

home. Winston and Brown got out of the car. After about 15

minutes, Lipford heard gunshots and drove away.

Tranika Turner, Winston's girlfriend, received a call from

Winston at about 6:00 a.m. on the morning of April 19, 2002

asking her to pick him up at a carwash, a short distance from

Sussex Street. She did so.

The evidence revealed that Carrie Wirges, a neighbor of

the Robinsons, was awakened by gunshots on the morning of April

19, 2002. She described hearing three shots and then five

shots.

Nathan Rorls ("Rorls"), a longtime friend of Winston's,

testified that Winston telephoned him and stated that "he

slumped two people down here," meaning that he "murdered

somebody; killed somebody." When Rorls saw Winston the next

day, Winston stated that he "killed two people and robbed them

and stuff." Winston produced a handgun from under his shirt.

Rorls described it as "a black gun like an automatic [, it] was

like a Glock or a nine." Winston also displayed cash and

cocaine that he stated he took from the Robinsons. He told

Rorls that he and Brown took $2000 and two ounces of cocaine.

5
 Rorls recited what Winston told him. According to

Winston, Brown took Anthony downstairs and shot him first in

the stomach. Winston then shot Anthony when he came "running

up the steps talking about they robbing us." Rorls testified

that,

So [Winston] said he shot him like up in the
face or somewhere in the upper body coming up
the stairs. And he told me, he said, he don't
want to leave no witnesses, so he turned around
and he shot that bitch.

Winston told Rorls that he committed these crimes because he

had been robbed several days earlier and "he needed to make his

money back up, he didn't get paid." Rorls also stated that

Winston told him that Rhonda was pregnant.

Winston was arrested at his girlfriend, Turner's, home on

April 25, 2002. Turner gave police a set of keys that Winston

left in her house. The keys fit locks to doors at two nearby

apartments. At one of the apartments, occupied by Robin

Wilson, the police recovered a 9-millimeter off-brand handgun

manufactured by a company located in Tennessee and made to

resemble a Glock. Winston had left the handgun with Wilson to

"hold" for him, and had failed to retrieve it before he was

arrested. Winston had called Wilson from jail after he was

arrested and requested Wilson to continue to "hold" it.

Winston's handgun seized by police at Wilson's apartment

had one unspent round in the clip magazine. The cartridge bore

6
the identical stamping as the casings recovered at the Robinson

murder scene. A forensic scientist testified at trial that

five bullets recovered from the Robinson's home and two bullets

removed from Anthony's body were fired from Winston's 9-

millimeter handgun recovered from Wilson's apartment. Nine

cartridge casings recovered at the crime scene had been ejected

from Winston's 9-millimeter handgun. Another forensic scientist

testified that biological material recovered from the 9-

millimeter handgun matched Winston's DNA profile and was

inconsistent with Brown or either of the Robinsons. The

probability of a random selection yielding this result was

greater than one in six billion.

B. Proceedings Below

On June 9-13, 2003, Leon Jermain Winston was tried before

a jury in the Circuit Court of the City of Lynchburg on

indictments charging the capital murder of Anthony Robinson in

the commission of robbery or attempted robbery, Code §§ 18.2-30

and 18.2-31(4); capital murder of Rhonda Robinson in the

commission of robbery or attempted robbery, Code §§ 18.2-30 and

18.2-31(4); capital murder of Rhonda Robinson during the same

transaction in which another person was willfully,

deliberately, and with premeditation killed, Code §§ 18.2-30

and 18.2-31(7); two counts of robbery, Code §§ 18.2-10 and

18.2-58; statutory burglary, Code §§ 18.2-10 and 18.2-90;

7
maliciously discharging a firearm, Code § 18.2-279; and five

counts of use of a firearm in the commission of a felony, Code

§ 18.2-53.1. The trial court granted Winston's motion to

strike the charges of robbery, but permitted the case to

proceed on charges of attempted robbery.

The jury convicted Winston of all charges submitted to it.

In a separate proceeding on June 13, 2003, the jury sentenced

Winston to three death sentences for the capital murder

convictions, finding both the future dangerousness and vileness

aggravating circumstances. The jury sentenced Winston to 73

years imprisonment and $400,000 in fines upon the remaining

convictions.

On January 29, 2004, the trial court held a post-verdict

hearing at which it considered the probation officer's report,

additional evidence, and argument of counsel. The trial court

imposed three death sentences, the sentences of imprisonment as

fixed by the jury, as well as the fines imposed; however, the

court suspended the imposition of fines. Winston noted appeals

of his convictions on February 26, 2004. Winston's appeals of

his non-capital convictions were certified under Code § 17.1-

409 for consolidation with the appeals of his capital murder

convictions and the review of sentences mandated by Code

§ 17.1-313.

II. Analysis

8
 A. Issues "Abandoned"

Winston makes 72 assignments of error.1 By his own

concession in his brief, Winston "abandoned" assignments of

error 1, 2, 4, 6, 11, 13, 14, 15, 16, 17, 26, 27, 35, 43, and

59. He did not brief these assignments of error and has,

therefore, waived them. Rule 5:27; Rule 5:17(c)(4); Elliott v.

Commonwealth, 267 Va. 396, 422, 593 S.E.2d 270, 286 (2004);

Williams v. Commonwealth, 248 Va. 528, 537, 450 S.E.2d 365, 372

(1994), cert. denied, 515 U.S. 1161 (1995).

B. Issues Previously Decided

Included in Winston's 72 assignments of error are

arguments this Court has rejected in previous cases. Since we

find no reason to modify our previously expressed views on

these questions, we adhere to our previous holdings and reject

the following contentions:

1) "The trial court erred in denying voir dire on parole

ineligibility." (A.E. 5). Rejected in Hills v.

Commonwealth, 262 Va. 807, 811-12, 553 S.E.2d 722, 724-25

(2001); Lilly v. Commonwealth, 255 Va. 558, 567, 499

S.E.2d 522, 529-30 (1998), rev'd on other grounds, 527

U.S. 116 (1999).

1
The assignments of error are referred to by number
throughout the opinion, and are referenced by either
"assignment of error" or "A.E."

9
2) "The trial court erred by not declaring Virginia's death

penalty statutes unconstitutional" because the terms

" 'vileness' and 'future dangerousness' are

unconstitutionally vague and fail to provide the sentencer

with meaningful instruction to avoid the arbitrary and

capricious infliction of a death sentence." (A.E. 8, 18,

and 65). Rejected in Jackson v. Commonwealth, 267 Va.

178, 205-06, 590 S.E.2d 520, 535-36 (2004), cert. denied,

___ U.S. ___, ___ S.Ct. ___, 73 U.S.L.W. 3212 (2004)

("future dangerousness"); Wolfe v. Commonwealth, 265 Va.

193, 208, 576 S.E.2d 471, 480, cert. denied, ___ U.S. ___,

124 S.Ct. 566 (2003) ("vileness"); Beck v. Commonwealth,

253 Va. 373, 387, 484 S.E.2d 898, 907, cert. denied, 522

U.S. 1018 (1997) ("vileness"); Mickens v. Commonwealth,

247 Va. 395, 403, 442 S.E.2d 678, 684, vacated and

remanded on other grounds, 513 U.S. 922 (1994) ("future

dangerousness").

3) "The trial court erred by not declaring Virginia's death

penalty statutes unconstitutional" because "the Virginia

scheme fails properly to inform and instruct the jury on

its consideration of mitigating evidence." (A.E. 8, 18,

and 65). Rejected in Walker v. Commonwealth, 258 Va. 54,

61, 515 S.E.2d 565, 569 (1999), cert. denied, 528 U.S.

1125 (2000); Johnson v. Commonwealth, 259 Va. 654, 667,

10
 529 S.E.2d 769, 776, cert. denied, 531 U.S. 981 (2000);

Watkins v. Commonwealth, 229 Va. 469, 490-91, 331 S.E.2d

422, 438 (1985), cert. denied, 475 U.S. 1099 (1986).

4) "The trial court erred by not declaring Virginia's death

penalty statutes unconstitutional" because they allow "the

prosecution to prove future dangerousness by evidence of

unadjudicated criminal conduct and fail to require the

prosecution [to] satisfy any standard of proof before

using such conduct." (A.E. 8, 18, 65). Rejected in Green

v. Commonwealth, 266 Va. 81, 107, 580 S.E.2d 834, 849

(2003), cert. denied, ___ U.S. ___, 124 S.Ct. 1448 (2004);

Satcher v. Commonwealth, 244 Va. 220, 228, 421 S.E.2d 821,

826 (1992), cert. denied, 507 U.S. 933 (1993); Stockton v.

Commonwealth, 241 Va. 192, 210, 402 S.E.2d 196, 206, cert.

denied, 502 U.S. 902 (1991).

5) "The trial court erred by failing to conduct a pretrial

proportionality review." (A.E. 10). Rejected in Green,

266 Va. at 107, 580 S.E.2d at 849; Bailey v. Commonwealth,

259 Va. 723, 742, 529 S.E.2d 570, 581, cert. denied, 531

U.S. 995 (2000); see also Code § 17.1-313. Winston's

assignment of error stating that "[t]he trial court erred

when it failed to conduct a proportionality review that

included capital cases which did not result in a sentence

of death," (A.E. 66), is also without merit because the

11
 trial court is not required to conduct a proportionality

review.

6) "The trial court erred when it instructed the jury it

could infer malice from the use of a deadly weapon and its

jury instruction 8 was improper." (A.E. 39). Strickler

v. Commonwealth, 241 Va. 482, 495-96, 404 S.E.2d 227, 236,

cert. denied, 502 U.S. 944 (1991); Smith v. Commonwealth,

239 Va. 243, 263-64, 389 S.E.2d 871, 882, cert. denied,

498 U.S. 881 (1990).

7) "The trial court erred in giving jury instruction 36,"

stating that, "You may infer that every person intends the

natural and probable consequences of his acts." (A.E.

44). Rejected in Schmitt v. Commonwealth, 262 Va. 127,

145, 547 S.E.2d 186, 199 (2001), cert. denied, 534 U.S.

1094 (2002). See also Strickler, 241 Va. at 495, 404

S.E.2d at 236 (instruction that jury "may infer" malice

does not amount to impermissible presumption).

8) "The trial court erred by giving jury instructions 50, 53,

64, 65, 66, and 67" and submitting verdict forms that

described future dangerousness as "proof beyond a

reasonable doubt of a probability of future acts of

violence." (A.E. 56 and 60). Rejected in Mickens, 247

Va. at 402-03, 442 S.E.2d at 683-84.

12
 9) "The death penalty is cruel and unusual punishment and it

is error to impose such a sentence in contravention of the

United States and Virginia Constitutions." (A.E. 72).

Rejected in Johnson, 259 Va. at 667, 529 S.E.2d at 776;

Jackson v. Commonwealth, 255 Va. 625, 635, 499 S.E.2d 538,

545 (1998), cert. denied, 525 U.S. 1067 (1999); Spencer v.

Commonwealth, 238 Va. 275, 280-81, 384 S.E.2d 775, 777-78

(1989), cert. denied, 493 U.S. 1036 (1990).

C. Pre-trial Proceedings

1. Appointment of Experts

Winston asserts three assignments of error concerning the

trial court's refusal to appoint certain experts to assist him

in the case. First, he asserts the trial court "erred in

denying the defense request for a sentencing/mitigation

expert." (A.E. 3). Second, he alleges the trial court "erred

in denying the defense request for the appointment of a child

psychologist to explore the competence of a nine year old

witness." (A.E. 7). Third, he claims the trial court "erred

in denying the defense request for a mental health expert per

Ake and Husske." (A.E. 9).

Winston filed a motion requesting a "sentencing/mitigation

expert" prior to trial. In his motion he noted that

"[i]ndigent defendants in Lynchburg are often represented by

the Office of the Public Defender" and that "[t]he Lynchburg

13
Public Defender has a sentencing specialist on staff." He

argued that a "sentencing specialist has the expertise

necessary to locate essential witnesses and data, examine and

evaluate testimony and documents using his or her special

knowledge of the issues likely to be significant at a murder

trial and possible sentencing event, issues beyond the

comprehension of the ordinary layman." In argument on the

motion, Winston acknowledged that the services requested

involved gathering his background information and could be

performed by the previously appointed defense investigator.

The trial court declined to appoint an additional person

to be the "mitigation expert" as requested by Winston.

Instead, the trial court expanded the range of authorized

activities for the investigator who had already been appointed

for Winston "to include background investigation for evidence

in mitigation." Although not receiving the particular expert

he requested, Winston, in fact, received the services he

requested. While the Commonwealth is required to provide

adequate expert assistance to indigent defendants in certain

circumstances, it is not required to provide them with "all

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

v. Commonwealth, 252 Va. 203, 211, 476 S.E.2d 920, 925 (1996),

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

14
 Winston also filed a motion in the trial court seeking the

appointment of a psychologist to examine then eight-year-old

Niesha Whitehead, one of the daughters of the victims, and

requested a hearing to determine her competence to testify.

The trial court denied the motion for an examination on the

basis that "a determination of the competency of this witness

is for the Court, and that can be done without the assistance

from an expert."

We review the trial court's decision concerning the

competence of Niesha Whitehead with deference. "Because of the

opportunity a trial court has to see and observe a child's

demeanor on the stand, his or her competence as a witness is a

matter within the discretion of the trial court and its ruling

will not be disturbed except for manifest error." Mackall v.

Commonwealth, 236 Va. 240, 253, 372 S.E.2d 759, 767 (1988),

cert. denied, 492 U.S. 925 (1989); Kiracofe v. Commonwealth,

198 Va. 833, 840, 97 S.E.2d 14, 18-19 (1957). Winston made no

allegation, either in his motion to the trial court or in oral

argument at hearings before the trial court, that Niesha had

any special condition, other than being eight years old at the

time, that would require the trial court to seek expert

assistance in determining her competence to testify. With the

use of adequate voir dire, trial courts in the Commonwealth

15
have determined the competence of children younger than eight

years old. See Kiracofe, 198 Va. at 840, 97 S.E.2d at 18-19.

In this case, the trial court's voir dire to determine

Niesha's competence to testify was as follows:

BY THE COURT:
Q. How are you, young lady?
A. Good.
Q. Why don't you tell me your whole name?
A. Niesha Michelle Whitehead.
Q. How old are you Niesha?
A. Nine.
Q. Do you know your birthday?
A. Yes.
Q. What's the date of your birthday?
A. September 30th, September 30th.
Q. Do you know what year?
A. 1993.
Q. Are you in school?
A. Yes.
Q. Where are you in school?
A. R.S. Payne.
Q. R.S. Payne. Speak into that microphone.
MR. PETTY: Use your outdoor voice, Niesha.
BY THE COURT:
Q. Just talk into the mic.
Are you a little bit nervous?
A. (Witness nods head up and down.)
Q. That's a yes?
A. Yes.
Q. All right. I don't blame you. I'd be nervous, too,
if I was sitting in that chair.
Do you know who – I'm Judge Perrow.
Do you know what a judge does in a courtroom?
A. No.
Q. You don't?
I just preside over the trial, okay?
A. Okay.
Q. Do you know why we're here today?
A. (No response).
Q. Do you know why you're here today?
A. (No response).
Q. Do you want to think about that for a while?
A. Yeah.

16
Q. Okay. There's no right or wrong answers, just do you
know – you just raised your hand and told this lady,
who's the clerk, that you would tell the truth. Do
you know what it means to tell the truth?
A. Yes.
Q. What does it mean?
A. Just the truth.
Q. All right. You mean –
A. Just the truth.
Q. Well, do you know what the truth means?
A. (No response).
Q. Can you give me an example?
A. (No response).
Q. Can't think of an example?
A. No.
Q. Do you know what it means to lie?
A. Yes.
Q. What does it mean to lie?
A. Not telling the truth.
Q. Not telling the truth.
Does anything happen to you if you don't tell the
truth? Is that good or bad?
A. Bad.
Q. And why is it bad?
A. Because you'd be telling a lie.
Q. You'd be telling a lie.
You could maybe hurt somebody if you told a lie; is
that right?
A. Yes.
Q. What grade are you in?
A. Fourth.
Q. Fourth grade.
What do you – what subjects do you study in school?
A. Science.
Q. Science?
A. (Witness nods head up and down.)
Q. Do you like science?
A. Yes.
Q. And what else do you study?
A. Math.
Q. Math.
Do you like math?
A. Yes.
Q. What kind of grades do you get in school, Niesha?
A. Bs and Cs.
Q. Bs?
A. And Cs.

17
Q. Do you get all Bs or some Cs or –
A. Some Cs.
Q. Some Cs, all right.
And do you know who these gentlemen are seated down
here at this table?
These are lawyers. They're going to ask you some
questions.
Do you think you can answer their questions?
A. Yes.
Q. Are you going to answer them truthfully?
A. Yes.
Q. All right. And do you know who this lady is right
here?
A. (Witness shakes head side to side.)
Q. She's −
A. No.
Q. − the court reporter. She takes down everything we say
so there will be a record of what we say.
A. Okay.
Q. And that lady right there, she's one of the bailiffs.
She helps run the courtroom.
Do you think you can sit here and answer the
questions?
A. Yes.
Q. And are you going to tell the truth?
A. Yes.
Q. If you don't know an answer, what are you going to
say? Do you feel like you have to answer every
question?
A. No.
Q. Only the questions you know the answer to?
A. Yes.
Q. Are you going to make up any answers?
A. No.
Q. If you don't know the answer to a question, you're
going to tell us you don't know?
A. Yes.
Q. Do you understand there's nothing wrong with that?
We just want to know what you know, if anything, and
we want the truth. Do you think you can do that?
A. Yes.
Q. All right. And do you know why we're here, what this
is all about, what this is called?
A. (No response).
Q. Can't think of what it's called?
A. No.

18
 Q. Well, do you know why you're here today, Niesha?
Were you present when your mother was killed?
A. Yes
Q. You were in the house − were you in the house?
A. Yes.
Q. Are you going to tell us whether or not you saw
anything?
A. Yes, yes.
Q. Are you going to tell us the truth?
A. Yes.

The trial court concluded that Niesha was competent to

testify and observed, "I think she's scared to death." Winston

argues that the trial court erred in interpreting "the child's

inability/refusal to answer as shyness when an equally valid

explanation was her not understanding the questions or oath."

However, our review of the transcript does not reveal "manifest

error" in the trial court's determination that the child was

shy or nervous about testifying. Niesha was able to discuss

the difference between lying and telling the truth and

understood that lying was "bad." She also appeared to

understand that it was acceptable to admit to the court that

she did not know the answer to a question. Considering the

voir dire in its totality, she appeared to understand the

court's questions and was able to answer them. Additionally,

at a pretrial hearing, the trial court heard testimony from a

licensed professional counselor who had been providing

counseling to Niesha. The counselor testified that Niesha was

anxious about coming to the courtroom and was concerned that

19
the man who killed her mother might hurt her if she appeared in

the courtroom.

Winston does not assign error to the trial court's

determination that Niesha was competent to testify. Rather,

Winston complains that an expert was not appointed to examine

Niesha to aid in the determination of her competence to

testify. He alleges that the voir dire examination reveals the

need to have appointed an expert to examine Niesha. Upon

review of the record, we find no error in the trial court's

decision not to appoint an expert for this purpose.

Winston's third argument regarding the appointment of

experts concerns his request for a qualified mental health

expert to investigate issues for sentencing. Winston requested

appointment of an expert under Ake v. Oklahoma, 470 U.S. 68

(1985) and Husske. Winston eschewed any request pursuant to

Code § 19.2-264.3:1, which addresses such assistance to an

indigent capital murder defendant. Presumably, Winston sought

to avoid the notice and access requirements of the statute in

the event that reports developed pursuant to the provisions of

the statute were offered by the defendant in mitigation at a

sentencing proceeding. The trial court nonetheless granted the

expert assistance requested by Winston pursuant to Code § 19.2-

264.3:1. Winston complains that he has a right under Ake and

20
Husske to the appointment of a mental health expert independent

of the provisions of Code § 19.2-264.3:1.

The Supreme Court in Ake held that an indigent defendant

charged with a capital offense is entitled to a mental health

expert at state expense when, 1) sanity at the time of the

offense is an issue, and 2) future dangerousness is an

aggravating factor in the sentencing proceeding and the state

offers psychiatric testimony in support of future

dangerousness. Ake, 470 U.S. at 83, 86-87. In Husske, we held

that an indigent defendant who seeks the
appointment of an expert witness, at the
Commonwealth's expense, must demonstrate that the
subject which necessitates the assistance of the
expert is "likely to be a significant factor in
his defense," Ake, 470 U.S. at 82-83, and that he
will be prejudiced by the lack of expert
assistance. Id. at 83. An indigent defendant
may satisfy this burden by demonstrating that the
services of an expert would materially assist him
in the preparation of his defense and that the
denial of such services would result in a
fundamentally unfair trial. See State v. Mills,
420 S.E.2d [114,] 117 [(N.C. 1992)]. The
indigent defendant who seeks the appointment of
an expert must show a particularized need.

252 Va. at 211-12, 476 S.E.2d at 925.

The General Assembly provided in Code § 19.2-264.3:1 a

comprehensive statute concerning the provision of health care

experts when a defendant's mental condition is relevant in a

capital sentencing. Winston never suggested that his sanity at

the time of the offense was an issue. He requested a mental

21
health expert solely for the purpose of sentencing. The

Commonwealth did not present psychiatric evidence of Winston's

future dangerousness as was the case in Ake. Nonetheless, in

this case, Winston received precisely what he requested, only

he received it pursuant to the statutory provisions. Assuming

that Ake required such assistance in this case, Winston clearly

received it when the trial court provided a mental health

expert to assist him pursuant to Code § 19.2-264.3:1.

Significantly, Winston gave no notice of presentation of

psychiatric evidence and proffered no such evidence at the

sentencing; consequently, no objection to the provision of a

specific report to the Commonwealth under subsection D of the

statute is at issue in this case. The trial court did not err

in its provision of a qualified mental health expert pursuant

to Code § 19.2-264.3:1.

2. Seating of Jurors

Winston assigns error to a number of rulings of the trial

court related to voir dire of the jury panel and the seating

and removal of individual jurors. Winston claims that the

trial court "erred in limiting voir dire of the venire by the

defense" and "erred in describing the punishment to the

venire." (A.E. 20 and 21). His arguments on these topics

relate to the trial court's refusal to allow Winston's counsel

to question the jury about the impact of parole ineligibility

22
and the trial court's description of the possible punishments

in capital cases as "death" or "life in prison," rather than

life in prison without the possibility of parole. He argues

that parole ineligibility may affect the jurors' view on the

death penalty and that in the absence of guidance from the

trial court on the topic of parole ineligibility, the members

of the venire lack the "information needed to respond

completely and truthfully to questions propounded to him/her."

He also suggests that anyone with misconceptions about parole

ineligibility should be removed from the venire.

In Lilly, 255 Va. at 567, 499 S.E.2d at 529-30, we

rejected the idea that "knowledge of parole ineligibility rules

and exploration of potential jurors' opinions on that subject

would be a proper topic for voir dire." Instead, we noted that

the "probable confusion and prejudice such an inquiry would

cause in the minds of jurors is self-evident." Id. We echoed

that reasoning in Hills, 262 Va. at 811-12, 553 S.E.2d at 724-

25, where we held that the proper time to inform the jury about

parole ineligibility is when the court instructs the jury in

the penalty phase. In Fishback v. Commonwealth, 260 Va. 104,

115, 532 S.E.2d 629, 634 (2000), we established a rule

requiring juries to be instructed on the abolition of parole

for non-capital felony offenses committed on or after January

1, 1995.

23
 This jury was properly instructed concerning parole

ineligibility at the time of its deliberations. It was not

error to refuse voir dire on this subject at the time of jury

selection.

Additionally, Winston assigns error to the trial court's

voir dire. (A.E. 24). Specifically, Winston objects to the

trial court's following statements and questions:

Ladies and gentlemen, I want − also want you
to understand that in every criminal case the
defendant has the opportunity but no obligation
to put on evidence. And that is because in our
system should the state accuse any of us of a
crime, we don't have to prove our innocence, the
state has to prove our guilt beyond a reasonable
doubt.
So do you understand that the defendant has
an opportunity but no obligation to put on
evidence? Do each of you understand that?
THE JURY POOL: (Nod heads up and down.)
THE COURT: Does anyone hold it against the
defendant should he elect not to put on
evidence?
THE JURY POOL: (Shake heads side to side.)

Winston mischaracterizes the trial court's question as

"suggest[ing] Leon Winston would put on evidence in defense of

the charges," by pulling a single phrase out of context. A

fair reading of the trial court's colloquy shows that the trial

court's statements and questions confirmed that none of the

jurors would draw an unfair inference from the defendant's

choice not to present evidence.

24
 Furthermore, Winston did not object to the trial court's

voir dire on this subject. The trial court had previously

advised Winston's counsel that the court's voir dire would

contain this information. There was no objection on the

occasion of the trial court's advice to counsel nor upon the

actual voir dire of the jury. In fact, Winston's own proposed

voir dire questions advised the jury that the defendant did not

have to testify or produce evidence. Winston mischaracterizes

the trial court's voir dire. In any case, he failed to object

and may not be heard to complain for the first time on appeal.

Rule 5:25.

Winston assigns error to the trial court's removal of

certain jurors from the venire. (A.E. 22). Winston argues

that he is entitled to be tried by a jury of his peers and such

a jury must include jurors who oppose imposition of the death

penalty. Winston argues that to constitute a true "cross-

section" of the community, his jury should have been composed

of people who support the death penalty, people who oppose the

death penalty, and people who "are ambivalent towards it."

With regard to jurors Margaret Gaines, Harold Donovan, Jeremy

Collins, Melinda Wheeler, and Albert Delbridge, Winston argues

that these jurors were struck from the panel because they

opposed the death penalty under any circumstances. He asserts

that Winston was thereby denied a jury of his peers under the

25
Sixth Amendment to the Constitution of the United States and

Article I, § 8 of the Constitution of Virginia. He further

maintains that striking these jurors from the venire "denied

these jurors equal protection under the law" under the rule

announced in Batson v. Kentucky, 476 U.S. 79 (1986).

The Supreme Court of the United States has rejected the

"cross-section" argument made by Winston. In Lockhart v.

McCree, 476 U.S. 162 (1986), the Supreme Court held that

" 'death qualification' does not violate the fair-cross-section

requirement" of the Constitution of the United States. Id. at

176-77. In Spencer, 238 Va. at 282, 384 S.E.2d at 778, citing

Lockhart, we rejected the "cross-section" argument based on

both the Federal and the Virginia Constitutions. We find no

reason to modify our previous holding.

Winston also assigns error to the trial court's refusal to

strike jurors Janet Capps, Michael Lewis, Anastasia Kreff, and

Paulene Todd for cause. (A.E. 23). However, he offers only two

sentences in his brief to support this assignment of error, one

of which is an unhelpful quote of a single sentence of one of

our prior opinions. This is not an argument in support of this

assignment of error. Consequently, this assignment of error is

waived due to Winston's failure to adequately brief the issue.

Rules 5:27, 5:17(c).

26
 Winston's remaining argument relating to the seating of

the jury, assignment of error 25, is barred under Rule 5:25.

Winston did not object to the trial court's decision to seat

jurors Robbie Johnson and Shirley Childress.

Winston's final challenge to the composition of his jury

is expressed in his assignment of error asserting that the

trial court erred in "failing to declare a mistrial and failing

to set aside the jury verdict upon learning of third party

communications with members of the jury." (A.E. 32). During

the trial, it was brought to the trial court's attention that

jurors had been approached during various recesses by a woman

who made comments about the case. It would serve no purpose to

recite the substance of the comments because the trial court,

with the agreement of counsel, examined the four jurors who had

heard such remarks. Neither the Commonwealth nor Winston

requested that any other jurors be examined on the subject.

After discussing the matter with Winston, counsel for Winston

was asked by the trial court, "Do you have any motion?"

Defense counsel responded, "Judge, we do not have a motion. We

have discussed it with our client, and we have no motion and

will go forward with the trial." The frivolous nature of this

assignment of error should be apparent to counsel. It is

barred by Rule 5:25.

D. Guilt Phase

27
 1. Evidentiary Issues

a. Hearsay

Winston asserts that the trial court improperly overruled

his hearsay objection during the testimony of Investigator

David Gearhardt ("Gearhardt"). (A.E. 31). The Commonwealth

asked Gearhardt whether Niesha had said that one of the two men

in her house had a tattoo. The Commonwealth argues that the

question objected to "merely introduced the fact that Gearhardt

photographed the tattoo on Winston's arm." The transcript of

Gearhardt's testimony is as follows:

BY MR. PETTY:
Q. Now, did you become aware that Niesha
Whitehead had mentioned seeing a tattoo on
one of the individual's arms who was
involved in this?
A. Yes.

MR. DREWRY: Objection, Judge. It's hearsay.
MR. PETTY: Your Honor, it's offered only to show −
THE COURT: Overruled.
MR. PETTY: — what he did after that. Thank you.

BY MR. PETTY:
Q. Answer that question.
A. Yes, I did.
Q. And as a result of that, did you go take a
photograph of a tattoo on the arm of this
defendant?
A. Yes, I did.

The phrasing of the Commonwealth's question, "did you

become aware," suggests that the subject of the question was

Gearhardt's awareness of the statement made by Niesha, not the

28
truth of the content of the statement. That Gearhardt's answer

was followed by a question concerning the effect of his

awareness of the statement on his actions − he took a photograph

of Winston's arm − further supports the Commonwealth's statement

of the purpose for the question.

In Weeks v. Commonwealth, 248 Va. 460, 477, 450 S.E.2d

379, 390 (1994), cert. denied, 516 U.S. 829 (1995), we held

that "[t]he hearsay rule does not operate to exclude evidence

of a statement offered for the mere purpose of explaining the

conduct of the person to whom it was made." We have held more

generally:

The hearsay rule excludes out-of-court
declarations only when they are "offered for a
special purpose, namely, as assertions to
evidence the truth of the matter asserted." If
the court can determine, from the context and
from the other evidence in the case that the
evidence is offered for a different purpose, the
hearsay rule is no barrier to its admission.

Manetta v. Commonwealth, 231 Va. 123, 127, 340 S.E.2d 828, 830

(1986) (citations omitted). The trial court did not err in

overruling the hearsay objection asserted by Winston.

b. Identification Testimony

Prior to trial, Winston filed three motions concerning the

in-court identification of Winston by three different

witnesses: Michelle Lipford ("Lipford"); Niesha Whitehead

("Niesha"); and David Hardy ("Hardy"). In each motion, he

29
alleged that the witness' in-court identification "will be

based upon suggestive pre-trial identification procedures

rendering it substantially likely he will misidentify Leon

Jermain Winston as a participant in the charged offenses."

After the resolution of these three motions, Winston filed a

fourth motion, later amended, seeking to prevent in-court

identification of Winston's tattoo by Niesha.

A pretrial hearing was held concerning the first three

motions. At that hearing, Winston's counsel argued that the

Commonwealth should bear the burden of showing that the out-of-

court identification was not suggestive in a manner that might

corrupt the in-court identification. The Commonwealth argued

that the burden should be on Winston to show that the process

used for out-of-court identification was unduly suggestive.

The trial court ruled that the burden was on the defense and

noted Winston's objection.

Winston called three police officers as witnesses and his

questioning focused on whether Niesha had been shown

photographs of a coat and matters relating to Winston's

tattoos. At the conclusion of the testimony, Winston's counsel

withdrew the motion concerning Hardy. Furthermore, with

respect to the motion concerning Michelle Lipford, he stated

that it "fails [sic] for the defendant to put on any evidence."

The Commonwealth informed the trial court that they were not

30
going to ask Niesha any questions about the coat in the

photograph, that the coat was not in evidence, and that the

coat was "not a part of this case." The trial court recognized

the withdrawal of the motion concerning Hardy, denied the

motion concerning Lipford, and denied the motion concerning

Niesha on two grounds − that the coat would not be part of the

evidence at trial and that Winston had failed to carry his

burden of proof.

The parties discussed the fourth motion at a hearing on

March 17, 2003. At that time, Winston noted that one of the

Commonwealth's attorneys, William G. Petty ("Petty"), and

Niesha might be required as witnesses on the motion. The trial

court ordered the Commonwealth to "provide an affidavit from

Mr. Petty for the record with a copy to defense counsel with

regard to the presentation of the tattoo to [Niesha as to] his

recollection of [what occurred]" on the two occasions where a

picture of the tattoo had been presented to her. He also

ordered both parties to submit briefs or case law to the court

within 10 days. Petty's affidavit was submitted to the trial

court on March 24, 2003. The Commonwealth also submitted a

letter brief and two cases in support of its position that

identification of a tattoo should be treated more leniently

than the identification of a person. The issue arose at a May

23, 2003 hearing. The trial court ruled that the picture of

31
Winston's tattoo could not be shown to Niesha at trial for

identification nor could her out-of-court identification of the

tattoo be used as evidence. The trial court then ruled on the

remainder of Winston's motion to suppress Niesha's testimony

about the tattoo. The trial court ruled that Niesha would be

permitted to testify as to her own recollection of the tattoo

and that the officer who took the picture of Winston's tattoo

could "show the tattoo to the jury."

Two of Winston's assignments of error pertain to the trial

court's disposition of Winston's motions to suppress

identification. Assignment of error 12 asserts that the trial

court "erred in placing the burden of proof upon [Winston] in a

motion to suppress identification testimony." Assignment of

error 19 asserts that the trial court "erred in failing to

exclude Michelle Lipford's identification of [Winston]."

Winston's assignment of error 12 is without merit. In

Neil v. Biggers, 409 U.S. 188 (1972), the Supreme Court

established a two part analysis for determining whether an in-

court identification should be excluded because of the State's

use of an improper method for obtaining an out-of-court

identification. First, it must be shown that the circumstances

of the out-of-court identification were unnecessarily

suggestive. Id. at 198-99. The second part of the analysis is

the determination of "whether under the 'totality of the

32
circumstances' the identification was reliable even though the

confrontation procedure was suggestive." Id. at 199. The

Supreme Court provided no specific allocation of the burden of

proof on either part of the analysis. See, e.g., Manson v.

Brathwaite, 432 U.S. 98, 106-14 (1977).

The United States Court of Appeals for the Fourth Circuit

applied Biggers in United States v. Wilkerson, 84 F.3d 692 (4th

Cir. 1996), cert. denied, 522 U.S. 934 (1997). In that case,

the court stated that "the defendant must establish that the

photographic lineup procedure was impermissibly suggestive."

Id. at 695 (emphasis added). We adopt this allocation of the

burden of proof. The trial court did not err by placing the

burden of proof upon Winston in the pretrial motion to exclude

identification testimony at trial. With regard to the fourth

motion relating to Niesha's testimony about the tattoo, Winston

makes no particular argument in his brief and this claim of

error is therefore waived. Rule 5:17(c).

Winston's assignment of error 19 is barred by Rule 5:25.

At trial, Winston conceded that "the motion concerning Michelle

Lipford fails [sic] for the defendant to put on any evidence."

c. Evidence concerning Rhonda Robinson's pregnancy

The issue of Rhonda's pregnancy was first raised at a pre-

trial hearing when Winston moved the trial court "to prohibit

the Commonwealth from mentioning anything concerning . . . her

33
pregnancy in the opening statement, voir dire or during its

case in chief." Winston argued that "the death, the violent

death, of a pregnant woman is inflammatory" and that the fact

of Rhonda Robinson's pregnancy had no relevance to the case.

The trial court sustained "the motion with respect to voir dire

and opening statements" and "reserv[ed] ruling on the

admissibility of that fact at trial."

Just before Nathan Rorls was called as a witness in the

guilt phase of the trial, and out of the presence of the jury,

the parties again argued the admissibility of testimony about

Rhonda's pregnancy. The Commonwealth, requesting permission to

ask Rorls about Rhonda's pregnancy, argued, "It is our position

that that information should come in as coming through the

defendant as – and, again, from a credibility point of view, in

that it's information that can be corroborated by independent

information." Winston countered that such testimony would be

"extremely inflammatory and prejudicial, and that its

inflammatory and prejudicial nature far outweighs any probative

value that it has." The trial court then entertained

discussion of whether Rhonda's pregnancy would have been

apparent upon viewing her. After examining photographs of

Rhonda and determining that her pregnancy was not apparent, the

trial court ruled:

34
 I'm going to allow it if the witness can
testify as to what the defendant told him about
the appearance. That's what I'm going to do.
I'm going to allow it into evidence on direct.
You can cross examine him.
Seems to me if it's not apparent, that it's
− that it might be effective cross-examination.

Winston noted his objection.

The Commonwealth did not elicit any evidence of Rhonda's

pregnancy on direct examination of Rorls. Only after Winston

sought to impeach Rorls' credibility on cross-examination did

the Commonwealth seek to rehabilitate Rorls on re-direct

examination. Only then was evidence of Rhonda's pregnancy

elicited from the witness. Rorls had separately testified on

direct and cross-examination that all the information he had

concerning the murders came from Winston, whom Rorls called

"Tootie." Then, the Commonwealth's Attorney engaged in the

following exchange with Rorls on re-direct examination.

BY MR. DOUCETTE:
Q. Do you remember any of the details that he
gave you?
A. Tootie?
Q. Yeah.
A. Yeah.
Q. What?
A. That she was pregnant.
Q. She who, she was pregnant?
A. The girl.
Q. The girl?
A. Yeah.
Q. What girl?
A. The one that he shot, killed.
Q. She was pregnant?
A. Yeah.
Q. Did you know she was pregnant?

35
 A. No.
Q. How did you know she was pregnant?
A. He told me.
Q. Who told you?
A. Tootie.

On recross-examination, Winston attempted to get Rorls to admit

that he had received the information about Rhonda's pregnancy

from Tywan Turner. Rorls denied obtaining such information

from Turner. Winston was, however, able to establish that

Rhonda's sister, Angela C. Whitehead ("Angela") knew Tywan

Turner and it was clear from Rorls' direct examination and

cross-examination testimony that he knew Tywan Turner.

The Commonwealth recalled Dr. Susan E. Venuti ("Dr.

Venuti"), the medical examiner who performed the autopsy on

Rhonda Robinson. Winston objected to the Commonwealth's

proposal to ask Dr. Venuti about Rhonda's pregnancy. Winston

argued that whether Dr. Venuti could substantiate the claim

that Rhonda was pregnant was irrelevant. The Commonwealth

countered that it was offering Dr. Venuti's testimony to

corroborate Rorls' testimony that Rhonda was pregnant. The

trial court ruled that Dr. Venuti's testimony on Rhonda's

pregnancy was admissible because the subject matter was

"already in." Winston's objection was noted. Dr. Venuti's

testimony consisted of a single question and response:

Q. Dr. Venuti, at the time of her death,
was Rhonda Robinson pregnant?
A. Yes, she was.

36
In its closing statement, the Commonwealth, in a series of

statements showing how Rorls' testimony was corroborated by

other sources, noted that "Nathan tells us [Rhonda] was

pregnant. Dr. Venuti confirms that."

Three of Winston's assignments of error pertain to the

testimony of Rorls and Dr. Venuti concerning Rhonda's

pregnancy. First, Winston claims the trial court "erred when

it allowed Nate Rorls to testify to the pregnancy of Rhonda

Robinson." (A.E. 28). Second, he asserts the trial court

"erred in allowing the prosecution to present prejudicial and

irrelevant evidence concerning Rhonda Robinson's pregnancy."

(A.E. 29). Third, he complains the trial court "erred by

allowing the medical examiner to testify concerning Rhonda

Robinson's pregnancy." (A.E. 33). These assignments of error

can be reduced into a single argument that any mention of

Rhonda's pregnancy at trial was irrelevant and, assuming that

Rhonda's pregnancy has any relevance, its probative value was

outweighed by its prejudicial effect on the jury. We must

analyze Rorls' testimony and Dr. Venuti's testimony in the

context in which they were offered to determine whether the

trial court abused its discretion in admitting their testimony.

For a piece of evidence to be relevant, it must have a

"logical tendency, however slight, to prove a fact at issue in

37
the case." Clay v. Commonwealth, 262 Va. 253, 257, 546 S.E.2d

728, 730 (2001); Goins v. Commonwealth, 251 Va. 442, 461, 470

S.E.2d 114, 127, cert. denied, 519 U.S. 887 (1996); Charles E.

Friend, The Law of Evidence in Virginia § 11-1, at 431 (6th ed.

2003). According to the Commonwealth, the evidence of Rhonda's

pregnancy, introduced by Rorls and Venuti, tended to prove that

Rorls was a credible witness. In particular, the Commonwealth

attempted to use the evidence of Rhonda's pregnancy to prove

that Rorls received all of his information about the murder of

Rhonda and Anthony from Winston, as opposed to Tywan Turner,

investigators, or Commonwealth's Attorneys, among others.

The evidence was offered only on re-direct examination

after Winston sought to impeach Rorls' credibility and

suggesting that Rorls' knowledge of the murders did not come

from Winston. If the evidence of her pregnancy was irrelevant

before cross-examination, it certainly was relevant after

cross-examination.

Having established that the evidence submitted by the

Commonwealth concerning Rhonda's pregnancy was relevant and had

a "logical tendency" to prove Rorls' credibility after

attempted impeachment, we must consider whether the trial court

nonetheless abused its discretion in the admission of this

evidence because its probative value is outweighed by its

prejudicial effect upon the jury. In Justus v. Commonwealth,

38
220 Va. 971, 979-80, 266 S.E.2d 87, 93 (1980), we held that it

was proper to allow the Commonwealth to present evidence that

the victim of a murder subsequent to rape was pregnant, where

such evidence was one of several "pertinent factors to be

considered by the jury in determining the amount of force that

was used by the defendant to accomplish the rape, and the

resistance that was offered by the victim, or that she was

capable of offering." We are aware of sister states' opinions

suggesting that evidence of a victim's pregnancy may inject

unfair prejudice into a trial by evoking an emotional response

in the jury, particularly in the guilt phase of a trial. See

People v. Martinez, 734 P.2d 650, 652 (Colo. 1986); People v.

Lewis, 651 N.E.2d 72, 84 (Ill. 1995); State v. Moore, 585 A.2d

864, 887 (N.J. 1991); Orona-Rangal v. State, 53 P.3d 1080, 1085

(Wyo. 2002). However, these courts have also recognized that

evidence of pregnancy is not inadmissible per se; its

prejudicial effect must be weighed against its probative value.

We note that the Commonwealth utilized the evidence for

the stated purpose of its introduction, namely, to prove the

credibility of Rorls after attempted impeachment by Winston.

The Commonwealth did not sensationalize the evidence and made

only one reference to it in closing arguments, using it to

support the issue of Rorls' credibility. The evidence was

clearly relevant for the purpose it was offered. Its

39
introduction was prompted by Winston's attack upon Rorls'

credibility and the particularized attack suggesting that Rorls

did not obtain information about the murders from Winston.

Damaging evidence in the form of admissions by Winston was

introduced through Rorls. Rorls' credibility became an

extremely important issue in the case. Because Rhonda's

pregnancy was not visibly apparent, the question of how Rorls

would know became relevant to his credibility. Under the

circumstances of this case, we cannot say that the prejudicial

impact of the testimony outweighed the probative value of the

evidence. The trial court did not abuse its discretion in

admitting evidence of Rhonda's pregnancy.

d. Testimony as to "public knowledge" by police officer

In his assignment of error 30, Winston claims the trial

court "erred in allowing a police officer to testify as to what

was and was not public knowledge." Winston's claim is targeted

at the testimony of Investigator Raymond D. Viar ("Viar").

Winston mischaracterizes Viar's testimony. Following a

series of questions concerning the investigation into Rhonda

and Anthony's murder and Viar's interactions with Rorls during

the course of the investigation, the Commonwealth asked Viar

whether the facts he received from Rorls were "made public at

that time in the course of this investigation." Winston's

attorneys objected, claiming that Viar "doesn't know what facts

40
are public and what are not." The trial court permitted the

Commonwealth to ask Viar whether, to his knowledge, the

information had been made public. The direct examination of

Viar by the Commonwealth continued:

Q. Mr. Viar, what was your position in this
investigation?
A. I was a supervisor at that time, the acting
lieutenant for the crimes against persons
investigations.
Q. And did you in that position have a
supervision authority over everyone
involved in the investigation?
A. Yes, I did.
Q. Were you familiar with all of the
information that was gathered by the
members of the investigating team?
A. Yes.
Q. Would you be in a position to be aware if
any information had been released to the
public?

. . . .

THE WITNESS: I did the press releases. I
handled all the interviews for this particular
case with the media. I even wrote the written
news releases that were used to give to the
media people that showed up.

After further objection from Winston's counsel and discussion,

the Commonwealth concluded its examination on this subject as

follows:

Q. To the best of your knowledge, was any of
the information that was provided to you −
let me rephrase that.
To the best of your knowledge, was − the
information that Mr. Rorls provided you,
that had not been released to the public?
A. Yes, to the best of my knowledge.

41
 The clear import of this testimony is that the police had

not released the evidence to the public. While it might be a

fair inference from Viar's testimony that the public at large

did not know the information, Viar's testimony was simply that

the police did not release the information to the public. Viar

testified only as to what he knew. The foundation for his

knowledge was properly established. Winston simply

mischaracterizes what occurred at trial. The trial court did

not err in admitting Viar's testimony on this subject.

2. Jury instructions

a. Specific Intent

Winston makes three assignments of error relating to jury

instructions 12 and 13, which were given to the jury at trial.

Winston's assignment of error 40 states that the trial court

"erred in giving jury instructions 12 and 13." Assignment of

error 51 states that the trial court "erred when it failed to

instruct the jury that there must be the specific intent to rob

Anthony Robinson to return a verdict of guilty for the

attempted robbery of Anthony Robinson." Assignment of error 52

states that the trial court "erred when it failed to instruct

the jury that there must be the specific intent to rob Rhonda

Robinson to return a verdict of guilty for the attempted

robbery of Rhonda Robinson."

Instruction 12 stated as follows:

42
 The defendant is charged with the crime of
attempted robbery of Anthony Robinson. The
Commonwealth must prove beyond a reasonable doubt
each of the following elements of that crime:
(1) That the defendant intended to commit
robbery; and
(2) That the defendant did a direct act toward
the commission of the robbery which
amounted to the beginning of the actual
commission of the robbery.

If you find from the evidence that the
commonwealth [sic] has proved beyond a reasonable
doubt each of the above elements of the offense as
charged, then you shall find the defendant guilty but
you shall not fix the punishment until your verdict
has been returned and further evidence has been heard
by you.

If you find that the Commonwealth has failed to
prove beyond a reasonable doubt either of the
elements of the offense, then you shall find the
defendant not guilty.

Instruction 13 was identical in language except it

referred to attempted robbery of Rhonda.

In his argument on the issue, Winston claims that these

instructions require the jury to find only general intent, not

specific intent. Winston's argument is without merit. First,

Winston confuses the issue by misusing the terms "general

intent" and "specific intent." General intent is the intent to

perform an act even though the actor may not desire the

consequences that result. See Black's Law Dictionary 825 (8th

ed. 2004). Specific intent is the intent to accomplish the

43
precise criminal act that one is later charged with. See id.

at 826.

The Commonwealth correctly argues that the instructions

required it to prove for each victim that "the defendant

intended to commit robbery and did a direct act toward the

commission of the robbery." By having a separate instruction

for each victim, the instructions required the jury to find

each element as to each victim. Jury instructions 12 and 13

properly required the jury to find that Winston had the intent

to rob both Rhonda and Anthony individually. The trial court

properly submitted these instructions to the jury. Winston's

assignments of error on this issue are without merit.

b. Malice

Winston makes the following three assignments of error:

38 The trial court erred in failing to instruct
that the jury must find malice to return a
verdict of guilty of capital murder and its jury
instructions 1, 2, 3 were improper.

. . . .

48 The trial court erred when it failed to include
the element of malice in the jury instruction
and verdict form for the death of Rhonda
Robinson.

. . . .

50 The trial court erred by not instructing the
jury that it must find malice to return a
verdict of guilty for the capital murder of
Rhonda Robinson.

44
 In his argument addressing these assignments of error,

Winston argues that jury instruction 1 was improper because it

did not require "the jury to find the killing was malicious."

The first jury instruction states, in relevant part:

The defendant is charged with the crime of capital
murder. The Commonwealth must prove beyond a
reasonable doubt each of the following elements of
that crime:

1) That the defendant killed Ronda [sic]
Robinson; and
2) That the killing was willful, deliberate,
and premeditated; and
3) That the killing was of more than one
person as a part of the same act or
transaction.

In Mackall, 236 Va. at 254, 372 S.E.2d at 768, we stated

that "[m]alice is subsumed in proof of willfulness,

deliberateness, and premeditation in the commission of a

criminal offense" and that a separate instruction on malice is

unnecessary when those terms are substituted. Winston argues

that Mackall is distinguishable because "instruction #1 was

predicated on a double homicide not on a felony murder theory"

and Mackall allowed "the omission of malice as an element due

to the felony-murder rule." We disagree. In Mackall, as in

this instance, "the jury was instructed to determine whether

the killing was willful, deliberate, and premeditated," not the

associated felony. Id. at 254, 372 S.E.2d at 768 (emphasis

45
added). Winston's assignments of error 38, 48, and 50 are

without merit.

c. Concert of Action/Joint Participation

Winston asserts that the trial court "erred in instructing

the jury on concert of action and [that] its jury instruction

24 was improper." (A.E. 41). Jury instruction 24 stated:

If there is concert of action with the resulting
crime of attempted robbery, burglary, shooting
into an occupied dwelling or use of a firearm in
the commission of a felony as one of its
incidental probable consequences, then whether
such crime was originally contemplated or not, all
who participate in any way in bringing about those
crimes are equally answerable and bound by the
acts of every other person connected with the
consummation of such resulting crime.

According to Winston, "[t]his instruction tends to

indicate all who participate are guilty of the 'resulting

crime,' reasonably interpreted by the jury to be 'capital

murder' " because the instruction failed to explicitly state

that it did not apply to the capital murder charge. Winston

unfairly construes the instruction. By listing four specific

crimes, the instruction makes clear that it applies only to

those crimes. To read this instruction otherwise would imply

that any time a defendant is charged with and simultaneously

tried for more than one crime, the instructions for each crime

would have to list each of the other crimes to which it does

not apply. Such a requirement is unnecessary. Furthermore,

46
the capital murder instruction specifically stated that

principals in the second degree were excluded from

responsibility for capital murder.

Winston also argues that instructions 26A and 26B

improperly instructed the jury that a defendant may be found

guilty of capital murder if the defendant participated in the

acts leading to the victim's death. (A.E. 42). Jury

instruction 26A stated:

The Court instructs the jury that the evidence
must establish beyond a reasonable doubt that the
defendant was the person who killed Ronda [sic]
Robinson before you can find him guilty of the
capital murder of Ronda [sic] Robinson. One who is
present, aiding and abetting the actual killing, but
who does not perform the killing, is a principal in
the second degree and may not be found guilty of
capital murder.

You may find the defendant guilty of capital
murder if the evidence establishes that the defendant
jointly participated in the fatal shooting, if it is
established beyond a reasonable doubt that the
defendant was an active and immediate participant in
the act or acts that caused the victim's death.

Jury instruction 26B stated:

The Court instructs the jury that the evidence
must establish beyond a reasonable doubt that the
defendant was the person who killed Anthony Robinson
before you can find him guilty of the capital murder
of Anthony Robinson. One who is present, aiding and
abetting the actual killing, but who does not perform
the killing, is a principal in the second degree and
may not be found guilty of capital murder.

You may find the defendant guilty of capital
murder if the evidence establishes that the defendant
jointly participated in the fatal shooting, if it is

47
 established beyond a reasonable doubt that the
defendant was an active and immediate participant in
the act or acts that caused the victim's death.

Winston focuses on the second paragraphs of the

instructions. He argues that each is improper for two reasons.

First, he argues that the second paragraphs of the instructions

were not supported by the evidence because "[t]here was no

evidence [that] two persons participated in the death of Rhonda

Robinson and no substantial evidence [that] Anthony Robinson

was killed by the joint acts of two persons." Second, Winston

argues that the language of each is misleading because it "does

not require Leon Winston to be the triggerman." According to

Winston, the second of two phrases beginning with "if" could

allow the jury to find that participation in the robbery and

burglary makes the defendant "an active and immediate

participant in the act or acts that caused the victim's death."

In other words, he alleges that the language of the second

paragraphs of instructions 26A and 26B does not describe the

role of a triggerman narrowly enough. Neither of these

arguments has merit.

The Commonwealth cites Lenz v. Warden, 265 Va. 373, 381,

579 S.E.2d 194, 199 (2003), and Strickler, 241 Va. at 493-95,

404 S.E.2d at 234-35, in support of the instructions. In those

cases, we approved language similar to that used in

instructions 26A and 26B. In Lenz, the victim, a fellow inmate

48
in the state prison, suffered 68 stab wounds, all of which

contributed to the victim's death. Both Lenz and another

inmate were accused of stabbing the victim with knives. In

approving an instruction which allowed the jury to convict Lenz

of capital murder "if the Commonwealth proved 'beyond a

reasonable doubt that [Lenz] was an active and immediate

participant in the act or acts that caused the victim's death,"

we cited Strickler, holding that when "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." Lenz, 265 Va. at 381, 579 S.E.2d

at 199 (citing Strickler, 241 Va. at 495, 404 S.E.2d at 235).

Additionally, Winston fails to consider the second

paragraphs in context. The first paragraph of each instruction

makes it quite clear that one who "does not perform the

killing" may not be guilty of capital murder.

In this case, Anthony was struck by eight bullets. Two

bullets recovered from Anthony's body were 9-millimeter

bullets; one bullet was a .38 caliber bullet. The two

different weapons involved suggest two different gunmen were

involved and Rorls' testimony supports this proposition. The

evidence establishes that Winston used the 9-millimeter

49
handgun.2 According to the medical examiner, all of Anthony's

wounds were inflicted while he was alive and his death was

caused by blood loss from the bullet wounds. Because the

evidence suggests that Winston was responsible for seven of the

wounds contributing to Anthony's death, while one wound was

attributable to another handgun, instruction 26A was proper.

Winston was one of two people who, by firing two different

handguns, inflicted fatal injuries upon Anthony Robinson.

Rhonda was struck by three bullets. The evidence suggests

that all three were fired from a 9-millimeter handgun. The

Commonwealth argued that of the two men in the house, Winston

used the 9-millimeter handgun. Under the Commonwealth's

theory, only one man was responsible for shooting Rhonda.

There is no evidence that Winston used the .38 caliber handgun.

There is ample evidence that he used the 9-millimeter handgun.

The trial court did not err in giving instructions 24, 26A, and

26B to the jury.

d. Triggerman/Lesser Included Offenses

Winston, in three assignments of error, maintains that he

was entitled to jury instructions on first and second degree

murder and accessory after the fact status with regard to the

death of Rhonda Robinson and that the verdict forms given to

2
The evidence connecting Winston to the 9-millimeter
handgun includes DNA evidence and the testimony of Robin
Wilson.

50
the jury should also have provided for these lesser included

offenses. (A.E. 45, 47, and 49). Winston argues that there

was "more than a scintilla of evidence" to support conviction

on one of the lesser included offenses and that it was

reversible error for the trial court to refuse to offer the

instructions requested by Winston. Winston points to Niesha's

testimony as evidence supporting conviction on a lesser

included offense. He notes that parts of Niesha's testimony on

cross-examination might suggest that Winston was not the

triggerman. He notes that, on cross-examination, Niesha

testified that the man dressed in all black, "Mr. No Name,"

shot her mother as she watched but that Tranika Turner,

Winston's girlfriend, testified that when she picked Winston

up, shortly after the killings, he was wearing a black

sweatshirt with gray stripes.

The Commonwealth argues that, despite "Niesha's confusion

on cross-examination in response to leading questions," the

evidence overwhelmingly points to Winston as the triggerman.

The Commonwealth highlights Rorls' testimony that Winston

admitted shooting Rhonda to avoid leaving a witness, the fact

that only 9-millimeter casings and bullets were found in the

vicinity of Rhonda's body, and the numerous pieces of evidence,

51
including the testimony of Robin Wilson3 and DNA evidence,

proving that the 9-millimeter handgun used in the crime was

Winston's. Additionally, Niesha identified the man with the

tattoo as being the one who shot her mother. Significantly,

Winston concedes on brief that "Winston cannot, and does not,

deny that he was present when Anthony and Rhonda Robinson

died." Winston was the only criminal actor with a tattoo on

his arm.

In light of the overwhelming evidence indicating that

Winston was the triggerman responsible for Rhonda's death, we

cannot say that a short passage excerpted from Niesha's

testimony was sufficient to merit jury instructions on first or

second degree murder, or accessory after the fact. We have

repeatedly held that jury instructions on lesser included

offenses are proper only when there is sufficient evidence to

support them. See, e.g., Remington v. Commonwealth, 262 Va.

333, 351-52, 551 S.E.2d 620, 631-32 (2001), cert. denied, 535

U.S. 1062 (2002); Commonwealth v. Donkor, 256 Va. 443, 445, 507

S.E.2d 75, 76 (1998); Justus v. Commonwealth, 222 Va. 667, 678,

283 S.E.2d 905, 911 (1981), cert. denied, 455 U.S. 983 (1982)

("the evidence must amount to more than a scintilla"). In this

3
Wilson testified that Winston brought the 9-millimeter
handgun to Wilson's house shortly after the crime and that
Wilson had held the handgun in his home until the police seized
it following a search of his home.

52
case, there is not more than a scintilla of evidence supporting

a conclusion that Winston was guilty of first or second-degree

murder or of being an accessory after the fact in the death of

Rhonda. The trial court did not err in refusing to give

instructions on lesser included offenses as tendered by Winston

concerning the murder of Rhonda.

e. Proper Verdict Form for the Murder of Anthony Robinson

In his assignment of error 46, Winston argues "the trial

court erred in failing to include all possible verdicts for the

death of Anthony Robinson on the same verdict form." Winston

does not suggest what possible verdict was omitted. The

verdict form in question provides for verdicts of guilty of

capital murder, or first degree murder, or second degree

murder, or not guilty. Winston's assignment of error on this

point is waived for failure to make sufficient argument. Rule

5:17.

f. Order of Firearm Offenses

Winston makes a single argument for assignments of error

56 and 62.4 He argues that although he "was indicted for five

4
In assignment of error 56, Winston claims, "The trial
court erred by giving jury instructions 50, 53, 64, 65, 66, and
67." Of the jury instructions listed in Winston's assignment of
error 56, instructions 50 and 53 make no mention of the use of
firearms. We will not consider them here. In assignment of
error 62, Winston refers to jury instructions 97-100. These
numbers do not correspond to jury instructions. Rather, they

53
counts of use of a firearm in the commission of a felony . . .

[n]one was charged as a second [or] subsequent offense." He

contends that because Code § 18.2-53.1 establishes an enhanced

sentence for "a second or subsequent conviction" under the

statute, it was necessary for the jury to determine the

chronological order of the offenses. He also contends that the

jury verdict forms should have included some indication of the

sequence of the convictions. According to Winston, without an

allegation, proof, and a decision concerning the order of the

offenses, "there can be no second conviction." He also asserts

that to administer an enhanced punishment without determining

the order of the offenses violates his due process rights under

the Fifth and Fourteenth Amendments, his "right to be informed

of the charge against him," and the requirement that the trier

of fact must find, beyond a reasonable doubt, that he is a

second offender.

We disagree. In Flythe v. Commonwealth, 221 Va. 832, 834-

35, 275 S.E.2d 582, 583-84 (1981) (citing Ansell v.

Commonwealth, 219 Va. 759, 763, 250 S.E.2d 760, 763 (1979)), we

held that a defendant could be convicted and sentenced for more

than one charge under Code § 18.2-53.1 even though the charges

arose from a single incident. We held, "It is the identity of

are the numbers at the top of the jury verdict forms relating
to the firearm charges.

54
the offense and not of the act which is dispositive" because

"if two or more persons are injured by a single criminal act,

this results in a corresponding number of distinct offenses."

Id. If chronology were all important, as Winston claims, Code

§ 18.2-53.1 would be unenforceable where offenses occurred

simultaneously from a single act or where a defendant was first

prosecuted for an offense that occurred after another offense.

Such a result would unnecessarily impede the statute's goal of

deterring violent crimes. See In re Commonwealth, 229 Va. 159,

162, 326 S.E.2d 695, 697 (1985); Ansell, 219 Va. at 763, 250

S.E.2d at 762-63. Neither the purpose nor the effect of the

statute impacts Winston's constitutional rights. The trial

court did not err in granting these instructions.

3. Sufficiency of the Evidence − Capital Murder

In his assignment of error 37, Winston states:

The trial court erred in not striking the
capital murder charges in the face of the
prosecution's failure to allege in the
indictment essential elements, to prove
these essential elements of the crime, and
to require the jury to find beyond a
reasonable doubt each element was
established, namely that defendant was over
the age of 16, that he was the triggerman,
and that he was not mentally retarded.

He then argues that the Commonwealth was required to prove six

elements:

1) Leon Winston killed Anthony Robinson; and

55
 2) The killing was malicious, willful, deliberate and
premeditated; and

3) The killing occurred during the commission of
attempted robbery; and

4) Leon Winston was the triggerman; and

5) Leon Winston was over the age of 16; and

6) Leon Winston was not mentally retarded.

Winston claims that the Commonwealth's evidence was

conflicting concerning whether he was the triggerman and

that the Commonwealth failed to prove that he was over the

age of 16 and not mentally retarded.

Winston urges us to comb through the record to find

other arguments he may have made to the trial court

throughout the pre-trial and trial process. We will

address only those arguments presented in Winston's brief.

Rules 5:17, 5:27. Winston has waived the portion of

assignment of error 37 regarding the sufficiency of the

indictment. We reserve our discussion of the issue of

mental retardation for a subsequent portion of this

opinion. Here, we address only Winston's contentions that

the evidence was insufficient to prove that Winston was

the triggerman and that Winston was over the age of 16.

The Commonwealth proved beyond a reasonable doubt

that Winston was the triggerman in the murders of Anthony

56
and Rhonda Robinson. We have described the evidence

proving that Winston was the triggerman in our discussion

of whether Winston should have received jury instructions

for lesser included offenses. It is unnecessary to repeat

it here.

Winston's argument that the Commonwealth failed to

prove that he was over the age of 16 is without merit. The

statutory definition of capital murder, Code § 18.2-31,

does not require proof that the defendant is over the age

of 16. Therefore, the defendant's age is not an element

of the crime.5 In Thompson v. Oklahoma, 487 U.S. 815, 838

(1988), the Supreme Court held that a person may not be

executed for a crime committed before the age of 16.

However, Thompson is no bar to conviction of a capital

offense. Therefore, the defendant's age is properly

raised at sentencing, not during the guilt phase of the

trial. At sentencing, Winston's mother testified that

Winston was born on July 2, 1980. He was 21 on April 19,

2002, when the offenses were committed. For these

5
The exception to this general rule is Code § 18.2-31(12)
which defines one form of capital murder as "[t]he willful,
deliberate, and premeditated killing of a person under the age
of fourteen by a person age twenty-one or older." That
provision is not at issue in this case, but illustrates that if
the General Assembly had wished to make the defendant's age an
element of the crime of capital murder, it could have done so
in the language of the statute.

57
reasons, Winston's assignment of error 37 is without

merit.

4. Sufficiency of the Evidence - Attempted Robbery

Winston argues assignments of error 34, 36, 53, and 54

together. Those assignments of error are as follows:

34 The trial court erred by not striking the
evidence at the close of the prosecution's case.

. . . .

36 The trial court erred in ruling the evidence was
sufficient to support jury instructions
regarding attempted robbery in the course of
capital murder in the absence of evidence
establishing the corpus delicti of the crime.

. . . .

53 The trial court erred by not setting aside the
jury verdict.

. . . .

54 The trial court erred by not setting aside the
jury verdict when the prosecution failed to
present evidence establishing the corpus delicti
of attempted robbery.

Winston argues that the evidence was not sufficient to prove

that Winston was the triggerman or to prove that Winston

intended to rob Anthony and Rhonda. Having already addressed

the sufficiency of the evidence proving that Winston was the

triggerman, we focus our discussion of these assignments of

error on the sufficiency of the evidence for Winston's

58
conviction of attempted robbery and capital murder based upon a

predicate of attempted robbery.

Winston argues that the evidence of attempted robbery is

insufficient for four reasons: 1) the testimony of Rorls

concerning Winston's intent is "unclear;" 2) Rorls' testimony

"contradicts" the theory that Winston intended to rob Rhonda;

3) Rorls' testimony is "not credible;" and 4) the trial court

found that the same evidence was insufficient to support a

robbery charge. In evaluating Winston's argument, we view the

evidence in the light most favorable to the prevailing party

below, the Commonwealth, and grant it the benefit of all fairly

deducible inferences. Elliott, 267 Va. at 400, 593 S.E.2d at

273; Lenz v. Commonwealth, 261 Va. 451, 455, 544 S.E.2d 299,

301, cert. denied, 534 U.S. 1003 (2001).

Winston's claim that Rorls' testimony is unclear is based

on a single excerpt from his direct examination. Winston

argues that the following response from Rorls is unclear

because Rorls uses the word "he" imprecisely:

A. He said that the dude that was with him,
that helped him, you know, rob, took the dude
downstairs or something, and he said, the dude
shot him first. And when the dude come running
upstairs, he said he shot the dude in the upper
body. And then he said − he was like he don't
want to leave no witnesses. So the girl was
screaming or something, and he said he shot her,
too.

59
Winston ignores the fact that the Commonwealth's Attorney

recognized at the time that Rorls' response was confusing and

followed that response with a series of questions that

clarified that Winston's "co-defendant" shot Anthony first, in

the stomach, that Winston then shot Anthony "in the face or

somewhere in the upper body," and that Winston then shot

Rhonda. Later, Rorls' testimony reveals why Winston went to

the Robinson home:

Q. Did you − so he tells you this. What did you
say? What did you say to him?
A. I asked − I said − I said − asked him why he
did that. That's stupid, you know. He said
he did that for no reason. I mean, you
know, it don't make no sense to shoot them
people.
Q. What did he say?
A. He was like he wanted to get paid. He said
somebody robbed him.
Q. I wasn't quite sure what you said. He said
what, now?
A. Somebody robbed him a couple days before
that, so he needed to make his money back
up, he didn't get paid.

In this passage, "he" refers exclusively to Winston. There is

no mistaking the clear implication of this portion of Rorls'

testimony: Winston went to the Robinson home to rob the

occupants.

Winston also appears to attach significance to the fact

that Rorls did not state that Winston intended to rob Rhonda

specifically. Robbery is " 'the taking, with intent to steal,

of the personal property of another, from his person or in his

60
presence, against his will, by violence or intimidation.' "

Pritchard v. Commonwealth, 225 Va. 559, 562, 303 S.E.2d 911,

912 (1983) (quoting Mason v. Commonwealth, 200 Va. 253, 254,

105 S.E.2d 149, 150 (1958)). Rorls' testimony indicates that

Winston went to the Robinson home in order to "make his money

back up." His intent was larcenous. The evidence proves that

Winston engaged in acts of violence to achieve this end.

Further, the evidence proves that Winston admitted robbing both

Rhonda and Anthony. Rorls testified that Winston told him that

"he killed two people and robbed them." Finally, the evidence

proves that Winston admitted to Rorls that he took cash and

cocaine from the Robinsons.

Winston argues that Rorls' recollection that Winston told

him that Winston did not "want to leave no witnesses, so he

said he turned around and he shot that bitch," actually

contradicts the notion that Winston was attempting to rob

Rhonda. Winston argues that the proof offered only shows he

intended to prevent Rhonda from becoming a witness. While

Winston's intent in actually killing Rhonda may have been to

silence her, that does not necessarily negate his intent to rob

her as well. As noted above, Winston admitted robbing both

Rhonda and Anthony.

Third, Winston assails Rorls' testimony as unbelievable.

He relies heavily on discrepancies between Rorls' testimony and

61
Niesha's testimony to argue that "there is no evidence to prove

intent to rob Anthony Robinson." The same evidence of

Winston's intent to rob Rhonda applies to the attempt to rob

Anthony as well. It need not be repeated. Winston claims that

"a fair reading of [Niesha's] testimony points to a struggle

taking place and Mr. Robinson's subsequent shooting being

designed to avoid witnesses." The evidence demonstrates that

Niesha was never downstairs during the incident. As a result,

Niesha could not testify to anything more than the fact that

she heard gunshots downstairs and that she heard Anthony try to

come upstairs before he was shot again. None of this testimony

addresses Winston's intent concerning the robbery or attempted

robbery of Anthony.

Winston once again points to Niesha's confusion concerning

which of the men was the shooter. Further, he argues that all

of Rorls' testimony should have been disregarded by the jury.

We note the oft-recited principle that "[t]he trier of fact is

the sole judge of the credibility of the witnesses, unless, as

a matter of law, the testimony is inherently incredible."

Walker v. Commonwealth, 258 Va. 54, 70-71, 515 S.E.2d 565, 575

(1999) (citations omitted), cert. denied, 528 U.S. 1125 (2000);

see also City of Portsmouth v. Houseman, 109 Va. 554, 558, 65

S.E. 11, 13 (1909).

62
 In this case, Rorls' testimony was not inherently

incredible. Large portions of Rorls' testimony are

corroborated by other evidence and other witnesses. For

example, Rorls testified that Winston showed him the handgun he

had used in the crime and that the gun appeared to be a "Glock"

or a 9-millimeter automatic. Winston later gave a 9-millimeter

handgun to Robin Wilson. This handgun bore Winston's DNA.

Rorls was able to relate a sequence of events for the murders

that corresponded to the locations of the victims' bodies in

the house. His testimony that Kevin Brown shot Anthony in the

stomach and that Winston shot Anthony in the head and upper

torso corresponds with forensic evidence concerning bullets

retrieved in and around Anthony's body. In fact, other than

Niesha's confusion as to clothing of the man who was the

shooter, Niesha's testimony and Rorls' testimony largely

reinforce each other. In light of these factors, the jury was

not unreasonable in determining that Rorls' testimony was

credible and assigning considerable weight to it.

Winston argues that the trial court must have found one of

two things "as a matter of law" in order to strike the robbery

charge originally filed against Winston. He claims that

"[e]ither, [the trial court] found Mr. Rorls was so

unbelievable that his testimony could not support a conviction

63
for robbery or it found the prosecution failed to introduce

sufficient evidence to corroborate his account."

At trial, Winston moved to strike the robbery charges at

the close of all the evidence. He raised a number of other

motions to strike charges and evidence at the same time. These

motions were argued simultaneously. The argument on the motion

to strike the robbery charges centered upon whether the

Commonwealth had presented sufficient evidence to prove that

Winston had actually taken any property from Anthony and

Rhonda, and, if so, exactly how much had been taken. After a

recess, during which the trial court considered the arguments,

it "made a ruling that there was insufficient evidence to

corroborate the robbery charge" but would allow jury

deliberations to go forward on the attempted robbery charge.

Whether the trial court was correct that there was insufficient

evidence to corroborate the robbery charge is not an issue in

this case; however, submitting the case to the jury on charges

of attempted robbery was not error considering the evidence

presented.

Finally, Winston argues that there was insufficient

corroboration of the intent to rob to support convictions for

attempted robbery and the capital murder counts based upon

attempted robbery. We disagree. Winston's statements to Rorls

were presented to the jury. This evidence amounts to a

64
confession to actual robbery, capital murder, and the related

firearm charges. Only slight corroboration to prove the corpus

delicti is required. Clozza v. Commonwealth, 228 Va. 124, 133,

321 S.E.2d 273, 279 (1984), cert. denied, 469 U.S. 1230 (1985).

As we recently stated in Powell v. Commonwealth, 267 Va. 107,

590 S.E.2d 537 (2004), cert. denied, ___ U.S. ___, ___ S.Ct.

___ (2004):

Although the Commonwealth may not establish an
essential element of a crime by the
uncorroborated confession of the accused alone,
" 'only slight corroborative evidence' " is
necessary to show the veracity of the
confession. Williams v. Commonwealth, 234 Va.
168, 175, 360 S.E. 2d 361, 366 (1987) (quoting
Clozza v. Commonwealth, 228 Va. 124, 133, 321
S.E.2d 273, 279 (1984), cert. denied, 469 U.S.
1230 (1985)), cert. denied, 484 U.S. 1020
(1988). What is more, if "[t]his corroborating
evidence is consistent with a reasonable
inference" that the accused committed the crime
to which he has confessed, the Commonwealth need
not establish through direct evidence those
elements of the crime that are proven by the
confession. See Jackson v. Commonwealth, 255
Va. 625, 646, 499 S.E.2d 538, 551 (1998), cert.
denied, 525 U.S. 1067 (1999).

Id. at 145, 590 S.E.2d at 560.

Rorls actually saw what Winston stated was one-half of the

fruits of the robbery, namely $1000 and an ounce of crack

cocaine. The evidence shows that $2000 and two rocks of crack

cocaine were taken, however, they were divided evenly between

Winston and his cohort. The circumstances of the crime scene,

the DNA evidence relating to the handgun, the attempt to hide

65
the handgun with a friend, and the testimony of Niesha all

serve to corroborate Winston's confession and his intent to rob

both Anthony and Rhonda.

5. Double Jeopardy

Winston argues that the trial court "erred by allowing two

verdicts of guilty of capital murder of Rhonda Robinson."

(A.E. 55). The jury found Winston guilty of the capital murder

of Rhonda Robinson for "killing of more than one person as part

of the same act or transaction." The jury also found Winston

guilty of the capital murder of Rhonda Robinson for murder "in

the commission of attempted robbery."

In Payne v. Commonwealth, 257 Va. 216, 509 S.E.2d 293

(1999), we considered whether the imposition of multiple death

sentences violates the provision of the Fifth Amendment of the

federal Constitution, which states that no person "shall . . .

for the same offense . . . be twice put in jeopardy of life or

limb." As we observed,

This constitutional provision guarantees
protection against (1) a second prosecution for
the same offense after acquittal; (2) a second
prosecution for the same offense after
conviction; and (3) multiple punishments for the
same offense. Illinois v. Vitale, 447 U.S. 410,
415 (1980); North Carolina v. Pearce, 395 U.S.
711, 717 (1969); Blythe v. Commonwealth, 222 Va.
722, 725, 284 S.E.2d 796, 797 (1981).

Payne, 257 Va. at 227, 509 S.E.2d at 300.

66
 Winston does not state his assignment of error in terms of

multiple punishments for the same offense. Rather, he alleges

error in the "two verdicts of guilty of capital murder." Of

course, an accused can be found guilty of capital murder and

not receive the death penalty under Virginia law. The case of

Clagett v. Commonwealth, 252 Va. 79, 472 S.E.2d 263 (1996),

cert. denied, 519 U.S. 1122 (1997), cited by Winston, involved

"multiple punishment double jeopardy," and is inapposite to his

assignment of error.

Furthermore, since Clagett, we have considered the

question whether a defendant charged with capital murder can be

convicted of more than one offense of capital murder of the

same victim and whether a defendant can receive more than one

death sentence for the killing of the same victim. In Payne,

the defendant was convicted of two distinct statutory

provisions of subsection 5 of Code § 18.2-31 involving the same

victim. Because "each statutory provision required proof of a

fact that the other did not," we held that Payne was properly

convicted of two capital offenses in the killing of the same

victim. Additionally, Payne was sentenced to two death

sentences for the same victim. We observed, "[w]e think it is

clear, as well as logical, that the General Assembly intended

for each statutory offense to be punished separately 'as a

Class 1 felony.' " 257 Va. at 228, 509 S.E.2d at 301. In

67
approving the two death sentences for the capital murder of one

victim, we further held "the convictions and sentences do not

violate the constitutional guarantee of protection against

multiple punishments for the same offense." Id. at 229, 509

S.E.2d at 301. The trial court did not err "by allowing two

verdicts of capital murder of Rhonda Robinson."

E. Sentencing Phase

1. Mental Retardation

With respect to the issue of mental retardation, Winston

makes two assignments of error regarding the sentencing phase

before the jury. First, he asserts that the trial court "erred

by failing to give jury instructions A1, B1, C1, and 50A."

(A.E. 57). Second, he claims that the trial court erred when

it applied Code § 19.2-264.3:1.1 to his "proceedings" and

"failed to follow the ruling of Atkins v. Virginia." (A.E.

58).

Winston makes no argument in his brief concerning jury

instructions A1, B1, or 50A. Consequently, his assignments of

error on these issues are waived. Rule 5:17.

Instruction C1 was offered by Winston and was refused by

the trial court. Instruction C1 purported to place the burden

on the Commonwealth to prove that Winston was not mentally

retarded. We will consider his claims relating to the refused

68
instruction and his claims regarding Code § 19.2-264.3:1.1

together.

In Atkins v. Virginia, 536 U.S. 304 (2002), the Supreme

Court held that the Eighth Amendment prohibits the execution of

mentally retarded persons. Id. at 321. In the context of

capital crimes, the issue of retardation is not an element of

the offense; rather, it is an affirmative defense to the

imposition of the death penalty. Clearly, under the Virginia

statutory scheme, an accused can be found guilty of a capital

offense and not receive the death penalty. Because Atkins only

precludes the execution of a person who is mentally retarded,

it is abundantly clear that the issue of mental retardation is

not an element of a capital offense.

The Supreme Court in Atkins did not define mental

retardation, nor did it prescribe procedures for determining

it. The Court expressly left "to the states the task of

developing appropriate ways to enforce the constitutional

restriction upon its execution of sentences." Id. at 317

(citation and quotation marks omitted).

In 2003, after Winton's offense occurred but before his

trial, the General Assembly of Virginia passed legislation

providing a legal definition of mental retardation and

procedures to raise and determine the issue in a capital murder

trial in Virginia. Code §§ 19.2-264.3:1.1 and 19.2–264.3:1.2.

69
These statutory changes were enacted as emergency legislation

and became effective upon the signature of the Governor on May

1, 2003. Winston's trial began over a month later on June 9,

2003. Winston's only argument that these newly enacted

statutes do not apply to him is that a new element of the

offense of capital murder was added by their enactment.

Winston argues that "such action can not be applied

retroactively under the ex post facto, due process, and equal

protection clauses of the U.S. and Virginia Constitutions."

The newly enacted statutes do not supply an additional

element of the offense of capital murder in Virginia. Rather,

the statutes provide, in response to the direction of the

Supreme Court of the United States in Atkins, a definition and

methodology to establish a constitutional bar to execution.

Additionally, Winston argues that proof of lack of mental

retardation is an aggravating factor that must be proved by the

Commonwealth and decided by a jury if demanded by the accused

under Ring v. Arizona, 536 U.S. 584 (2002) and Apprendi v. New

Jersey, 530 U.S. 466 (2000). However, Winston misapprehends

the treatment of mental retardation required by Atkins. Proof

of the lack of mental retardation is not an element of a

capital offense in Virginia, nor is it an aggravating factor in

sentencing. Rather, proof of mental retardation is a bar to

70
execution of a mentally retarded defendant and the burden of

such proof is on the defendant.

Other states have addressed this issue. In State v.

Williams, 831 So. 2d 835, 860 (La. 2002), the Louisiana Supreme

Court stated:

The Supreme Court would unquestionably look
askance at a suggestion that in Atkins it had
acted as a super legislature imposing on all of
the states with capital punishment the
requirement that they prove as an aggravating
circumstance that the defendant has normal
intelligence and adaptive function. Atkins
explicitly addressed mental retardation as an
exemption from capital punishment, not as a fact
the absence of which operates "as the functional
equivalent of an element of a greater offense."

The statutory provisions of Code §§ 19.2-264.3:1.1 and

19.2-264.3:1.2 do not add an element of the offense of capital

murder in Virginia, nor do they establish an aggravating factor

to be proven by the Commonwealth. Accordingly, the application

of these statutes to Winston does not violate the proscription

against ex post facto imposition of law against him. Nor do

these laws violate the requirements articulated in Ring and

Apprendi.

Winston's remaining claims concerning the subject of

mental retardation are waived because he deliberately declined

to raise a claim of mental retardation under the statutory

provisions that apply to him and his trial. Rule 5:25.

Accordingly, we will not consider his claim that the statutes

71
are unconstitutional because they require the defendant to

prove mental retardation and define retardation as occurring

before the age of 18. His claims predicated upon the

Constitution of Virginia are similarly barred by Rule 5:25.

2. Cumulative Evidence

Winston alleges that, during the penalty phase, the trial

court erred in allowing testimony concerning Winston's actions

during an arrest for eluding a police officer "when [the trial

court] had already admitted the conviction and sentencing

order" for the same offense. (A.E. 63). He claims that the

evidence was cumulative and that its "only purpose was to

inflame the passions and prejudices of the jury."

The sentencing order admitted into evidence reveals that

Winston was found guilty of eluding a police officer on April

12, 2002 and that he was sentenced to a year in jail, with six

months suspended, with his driver's license suspended for six

months. He was also given credit for time spent in confinement

awaiting trial. The sentencing order provides no other details

about the offense.

The Commonwealth called Officer Levi B. Renno ("Renno") to

testify about his arrest of Winston on April 12th. Renno

testified that he saw Winston's car "run a stop sign." He

followed the vehicle a short distance then activated the

emergency lights on his patrol car. Winston's response was to

72
"accelerate sharply." According to Renno, Winston's vehicle

was actually airborne several times on a hilly residential

street as Renno pursued him. Winston "ran another stop sign"

and three red lights, eventually reaching a speed above 90

miles per hour. The chase covered three to four miles and

Winston nearly collided with three other vehicles during the

chase. Winston's vehicle eventually collided with a fence in a

parking lot as he attempted to jump from his car. As a number

of police officers approached the vehicle, Winston continued to

try to escape, even attempting to climb over the passenger who

was in the front seat of the car. Once Winston was taken into

custody, the police found a loaded 9-millimeter handgun in the

passenger's lap. The passenger during the chase, Richard A.

Waterstraat ("Waterstraat"), testified that when Waterstraat

first entered the car, Winston showed him the handgun as he

told him that "he had to go take care of some business."

The additional testimony provided by the Commonwealth's

witnesses tends to show that Winston has a general disregard

for human life and has a history of violent or dangerous

behavior which speaks to the probability of his future

dangerousness. We have held: "Admissible evidence in the

sentencing phase is not limited to the defendant's record of

convictions. We have repeatedly approved the use of

testimonial evidence relating to a defendant's commission of

73
other crimes of which he has been convicted." Watkins, 229 Va.

at 487, 331 S.E.2d at 436; see also George v. Commonwealth, 242

Va. 264, 273, 411 S.E.2d 12, 18 (1991), cert. denied, 503 U.S.

973 (1992). "In determining his proclivity for violence, the

jury may obtain from the mere record of previous convictions an

inaccurate or incomplete impression of the defendant's

temperament and disposition." Stamper v. Commonwealth, 220 Va.

260, 276, 257 S.E.2d 808, 819 (1979), cert. denied, 445 U.S.

972 (1980). The trial court did not err in admitting the

testimony of Renno and Waterstraat.

3. Depravity of Mind/Aggravated Battery

In assignment of error 61, Winston argues that the trial

court "erred in providing sentencing verdict forms allowing a

finding of 'inhumane' [sic] action when the evidence for such a

finding was lacking." Winston argues that the evidence was

insufficient to support the giving of an instruction permitting

the death penalty based upon "depravity of mind or aggravated

battery."

The evidence in this case supports the trial court's

instructions on "vileness." As we stated in Goins, "a finding

of 'vileness' must be based on conduct which is 'outrageously

or wantonly vile, horrible or inhuman in that it involved

torture, depravity of mind or an aggravated battery to the

victim.' " 251 Va. at 468, 470 S.E.2d at 131 (quoting Code

74
§ 19.2-264.2). The evidence indicates that Winston committed

aggravated battery on both Anthony and Rhonda Robinson within

the meaning of Code § 19.2-264.2.

We have defined "aggravated battery" in this context to

mean "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); see

also Walker, 258 Va. at 71-72, 515 S.E.2d at 575 (1999)

(finding that multiple gunshot wounds, any one of which could

have been fatal, constitute an "aggravated battery"); Sheppard

v. Commonwealth, 250 Va. 379, 392, 464 S.E.2d 131, 139 (1995),

cert. denied, 517 U.S. 1110 (1996) (finding an aggravated

battery where there were multiple gunshot wounds and "an

appreciable lapse of time" between the first and last shots,

and when death does not result "instantaneously" from the

first). The evidence was sufficient to prove that Winston shot

Anthony Robinson at least seven times, and then went upstairs

and shot Rhonda Robinson three times in an execution-style

fashion in front of her two daughters.

4. Hearsay and Unadjudicated Conduct

Winston asserts in assignment of error 67 that the trial

court "erred in admitting hearsay evidence at a capital murder

sentencing." We have previously held that a post-sentence

75
report made pursuant to Code § 19.2-264.5 may contain hearsay

statements. Remington, 262 Va. at 354–355, 551 S.E.2d at 633.

A fair reading of Winston's argument does not implicate such a

report; rather, it focuses upon evidence of unadjudicated

conduct introduced pursuant to Code § 19.2-264.3:2.

After the jury had completed all of its deliberations and

had been discharged, the trial court conducted its sentencing

hearing. At the hearing, the court permitted introduction of

evidence of unadjudicated conduct over Winston's objection.

The testimony concerned Winston's behavior in the Blue Ridge

Regional Jail. When Winston objected to the testimony, the

trial court stated, "Isn't it normally admissible in a

sentencing proceeding?" Counsel for Winston replied, "Well,

certainly, it's in the discretion of the Court. Most

sentencing hearings aren't normally about someone's life. And

so we would suggest to the Court that in light of the stakes

involved in the case that the Court not permit it." Counsel

cites no legal authority to support this argument. The trial

court did not abuse its discretion in permitting evidence of

Winston's unadjudicated conduct.

F. Post-Sentencing

1. Burden of Proof on Motion to Set Aside

With respect to the post-sentencing phase of the trial,

Winston claims the "trial court erred when it required [him] to

76
present evidence justifying setting aside a sentence of death."

(A.E. 68). This assignment of error is waived because it was

not raised at the trial court below. Rule 5:25.

2. Reconsideration of Motions
Previously Denied

Winston claims that the trial court "erred in failing to

reconsider motions it previously denied." (A.E. 64). We

review a trial court's denial of a motion to reconsider for an

abuse of discretion. Murphy v. Commonwealth, 246 Va. 136, 148,

431 S.E.2d 48, 55, cert. denied, 510 U.S. 928 (1993). After

reviewing the record, we find no abuse of discretion by the

trial court with regard to Winston's motion to reconsider.

G. Proportionality Review

Code § 17.1-313 requires us to conduct a proportionality

review of the record to determine "[w]hether the sentence of

death was imposed under the influence of passion, prejudice or

any other arbitrary factor," Code § 17.1-313(C)(1), and

"[w]hether the sentence of death is excessive or

disproportionate to the penalty imposed in similar cases,

considering both the crime and the defendant." Code § 17.1-

313(C)(2). Pursuant to this statute, only this Court is

required to conduct the proportionality review, Code § 17.1-

313(A), and we do so in order "to assure the fair and proper

application of the death penalty statutes in this Commonwealth

77
and to instill public confidence in the administration of

justice." Akers v. Commonwealth, 260 Va. 358, 364, 535 S.E.2d

674, 677 (2000), cert. denied, 531 U.S. 1205 (2001).

The proportionality review is entirely a creature of

statute, and is not required by either the Constitution of

Virginia or the Constitution of the United States. Roach v.

Angelone, 176 F.3d 210, 216–17 (4th Cir. 1999) (citing Pulley

v. Harris, 465 U.S. 37, 50–51 (1994)), cert. denied, 528 U.S.

965 (1999), and habeas corpus denied, 258 Va. 537, 522 S.E.2d

869 (1999). In conducting the review, we review the evidence

and all reasonable inferences that are fairly deducible in the

light most favorable to the Commonwealth, the prevailing party

below. Chabrol v. Commonwealth, 245 Va. 327, 329, 427 S.E.2d

374, 375 (1993). While we strive " 'to reach a reasoned

judgment regarding what cases justify the imposition of the

death penalty,' " Hudson v. Commonwealth, 267 Va. 29, 34–35,

590 S.E.2d 362, 365 (2004) (quoting Orbe v. Commonwealth, 258

Va. 390, 405, 519 S.E.2d 808, 817 (1999), cert. denied, 529

U.S. 1113 (2000)), we do not insure complete symmetry among all

death penalty cases. Hudson, 267 Va. at 35, 590 S.E.2d at 365.

Winston makes five assignments of error regarding the

proportionality review. Winston claims the trial court "erred

by failing to conduct a pretrial proportionality review" and

that the trial court "erred when it failed to conduct a

78
proportionality review that included capital cases which did

not result in a sentence of death." (A.E. 10 and 66). As

previously discussed, it is the responsibility of this Court,

not a trial court, to conduct the proportionality review.

Thus, these assignments of error are without merit.

Winston claims that "[t]he sentence of death was erroneous

in that it was imposed under the influence of passion,

prejudice, and/or other arbitrary factors." (A.E. 69). In

support of this assignment of error, Winston cites the

testimony of Niesha Whitehead and the evidence of Rhonda

Robinson's pregnancy.

We have previously determined Niesha's testimony and

evidence of Rhonda Robinson's pregnancy to be admissible.

Winston further asserts that the same evidence caused the death

sentences to be imposed under the influence of "passion." We

find no merit to Winston's claims. Niesha was an eyewitness to

the offenses. Certainly, the fact that she was nine years old

at the time of her testimony, standing alone, cannot support a

claim that the jury was improperly influenced by passion. A

review of her testimony does not reveal anything other than a

recitation of what she observed. The Commonwealth's argument

to the jury was not improper.

With regard to evidence of Rhonda Robinson's pregnancy,

the Commonwealth introduced the evidence for the purpose of

79
rehabilitating a witness and the Commonwealth did not appeal to

passion in its arguments to the jury on the subject. Upon

review of the record, we are satisfied that the jury verdict

was not imposed under the influence of passion, prejudice

and/or other arbitrary factors.

Winston's remaining two assignments of error concerning

proportionality review are related. Winston argues the

sentence of death was erroneous because it was "excessive

and/or disproportionate to the penalty imposed in other cases

charged as capital murder," and that it is error "to conduct a

proportionality review which fails to examine similar capital

cases resulting in life or conviction on lesser included

offenses." (A.E. 70 and 71).

In conducting the mandatory proportionality review, our

responsibility is to examine the sentence of death to ensure

that the sentence was not imposed due to some improper passion,

prejudice, or arbitrariness and to ensure that the sentence is

not excessive when compared to similar cases. Code § 17.1-313.

Subsection E of Code § 17.1-313 provides in part that:

The Supreme Court may accumulate the records of
all capital felony cases tried within such
period of time as the court may determine. The
Court shall consider such records as are
available as a guide in determining whether the
sentence imposed in the case under review is
excessive.

80
When we conduct our statutory proportionality review, the

records that are available to us as a guide are appellate in

nature and include cases where a life sentence was imposed.

See Powell, 267 Va. at 148, 590 S.E.2d at 562.

Before conducting our proportionality review, we must

respond to Winston's attempt to incorporate arguments made

below by mere reference in his brief. Winston's attorneys

state that Winston "also relies on motions, memoranda, and

argument submitted to the trial court and contained in the

record." We have repeatedly rejected attempts by a party to

incorporate by reference arguments made in another court or in

another case. See 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); Hedrick v. Commonwealth,

257 Va. 328, 336, 513 S.E.2d 634, 638-39, cert. denied, 528

U.S. 952 (1999); Pulliam v. Coastal Emergency Servs., Inc., 257

Va. 1, 20 n.12, 509 S.E.2d 307, 318 n.12 (1999); Williams, 248

Va. at 537, 450 S.E.2d at 372. We adhere to these prior

rulings. Attempts to incorporate arguments by reference are

rejected and will not be recognized by the Court.

We have reviewed the capital murder cases where a

defendant killed more than one person as part of the same act

or transaction, and cases where a killing took place in the

commission of a robbery or attempted robbery, and where the

81
death penalty was given based upon the aggravating factors of

vileness and future dangerousness. See, e.g., Emmett v.

Commonwealth, 264 Va. 364, 569 S.E.2d 39 (2002), cert. denied,

538 U.S. 929 (2003); Cherrix v. Commonwealth, 257 Va. 292, 513

S.E.2d 642, cert. denied, 528 U.S. 873 (1999); Bramblett v.

Commonwealth, 257 Va. 263, 513 S.E.2d 400, cert. denied, 528

U.S. 952 (1999); Goins, 251 Va. at 469–70, 470 S.E.2d at 131–

32; Stewart v. Commonwealth, 245 Va. 222, 427 S.E.2 394, cert.

denied, 510 U.S. 848 (1993); Davidson v. Commonwealth, 244 Va.

129, 419 S.E.2d 656, cert. denied, 506 U.S. 959 (1992). We

have also considered cases in which defendants received life

sentences, rather than the death penalty, for capital murder

during the commission of an attempted robbery. See, e.g.,

Commonwealth v. Gregory, 263 Va. 134, 557 S.E.2d 715, cert.

denied, 537 U.S. 838 (2002); Burlile v. Commonwealth, 261 Va.

501, 544 S.E.2d 360 (2001). After such review, we find that

Winston's sentence was not excessive or disproportionate to the

sentences imposed by other sentencing bodies in the

Commonwealth in comparable cases.

III. Conclusion

Having found no error in the judgment below and finding no

other reason to commute or set aside the three death sentences,

we will affirm the judgment of the trial court.

Affirmed.

82