Present: All the Justices
LARRY BILL ELLIOTT
OPINION BY
v. Record Nos. 031610 & 031611 JUSTICE LAWRENCE L. KOONTZ, JR.
March 5, 2004
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
William D. Hamblen, Judge
In this appeal, we review the capital murder conviction and
death sentence imposed on Larry Bill Elliott for the murder of
Dana L. Thrall, Code § 18.2-31(7) (willful, deliberate, and
premeditated killing of more than one person as part of the same
act or transaction), along with his convictions for the first
degree murder of Robert A. Finch, Code § 18.2-32, and firearm
offenses related to these two murders, Code § 18.2-53.1.
BACKGROUND
In accordance with well-established principles of appellate
review, we will recount the evidence as reflected in the record
in the light most favorable to the Commonwealth, the prevailing
party below. Wolfe v. Commonwealth, 265 Va. 193, 198, 576
S.E.2d 471, 474, cert. denied, ___ U.S. ___, 124 S.Ct. 566
(2003).
The Murders
At approximately 4:00 a.m. on the morning of January 2,
2001, Mary Bracewell, a newspaper delivery person, was traveling
her route in the Woodbridge community of Prince William County,
Virginia. Bracewell was aware that there had been several
recent vehicle break-ins in the neighborhood and became
suspicious when she saw a man standing beside a pick-up truck
parked on Belfry Lane. Bracewell observed the man, who appeared
to be carrying a flashlight, walk to the north end of Belfry
Lane, cross the street, walk onto a grassy area between two
townhouses, and then disappear from her view. Bracewell called
police on her cellular telephone to report her observations.
At 4:15 a.m., Officer Marshall T. Daniel of the Prince
William County Police Department received a radio dispatch
directing him to respond to Bracewell’s call. He arrived at
Belfry Lane three minutes later. Bracewell indicated the parked
pick-up truck to Daniel and related to him what she had
observed. Daniel noted that the pick-up truck, which was
locked, had a Department of Defense windshield identification
sticker and that there was a cellular telephone on the passenger
seat.
At 4:27 a.m., Officer Daniel received a radio call to
respond to a report of a domestic disturbance at a townhouse
located at 3406 Jousters Way. Jousters Way is located
approximately 300 yards north of Belfry Lane. Although the two
streets do not intersect, one can reach Jousters Way on foot
2
from Belfry Lane by walking in the same direction that Bracewell
had seen the man beside the pick-up truck walking.
Tina Miller, who lived in an adjoining townhouse, had made
the report of a domestic disturbance at 3406 Jousters Way.
Miller telephoned police after being awakened by a crashing
sound coming from 3406 Jousters Way at approximately 4:20 a.m.
As she placed the call, Miller heard three or four “hollow”
sounds followed by “the most horrible scream” she had ever
heard. Miller thought that the screaming voice sounded like
that of Thrall, one of the occupants of 3406 Jousters Way.
Tommy Young, who lived in a townhouse on the opposite side
of the street from 3406 Jousters Way, was walking his dog in
front of his home at about the same time Miller was awakened by
the crashing sound. Young heard two loud “banging noises”
coming from 3406 Jousters Way, followed by the sound of a female
scream and three more banging noises. Young went back to his
house and told his wife to call the police. A few minutes
later, Young looked out his front window and saw that the front
storm door of 3406 Jousters Way, which had earlier been closed,
was swaying back and forth. Young also noted that the front
window shades of the home, which were normally left half-drawn,
were fully closed.
3
Officer Scott Bigger of the Prince William County Police
Department arrived at 3406 Jousters Way at 4:25 a.m. Officer
Bigger knocked on the front door, but got no response. Officer
Daniel arrived a few minutes later and walked around to the back
of the townhouse. The backyard was enclosed by a privacy fence,
and Officer Daniel could hear a large dog barking “pretty
hysterical[ly], angry” inside the yard.
Returning to the front of the home, Officer Daniel observed
that Officer Bigger had still received no response to his
knocking on the front door. Looking through a gap between the
shades of a front window, Officer Daniel was able to see the
legs of a person lying prone and motionless in the foyer of the
home. Officer Bigger opened the unlocked front door and he and
Officer Daniel saw Finch, who lived with Thrall in the home,
lying on the floor dead. Finch had suffered three gunshot
wounds: one to his head, one to his back, and one to his chest.
Officer Daniel immediately returned to the back of the home
to secure that area while Officer Bigger waited at the front of
the home for additional officers to arrive. When those officers
arrived, Officer Daniel immediately returned to the location on
Belfry Lane where the pick-up truck had been parked. He arrived
at that location at 4:38 a.m. The truck was gone.
4
Officer Sheldon R. Creamer, one of the officers who had
responded to the call by the other officers for assistance,
arrived at 3406 Jousters Way at approximately 4:45 a.m.
Entering the home, he heard “a muffled breathing sound” coming
from the kitchen at the back of the home. In the kitchen he
found Thrall, shot and lying in a pool of blood. Emergency
medical personal called to the scene took Thrall by ambulance to
a helicopter, which in turn evacuated her to the Washington
Hospital Center in the District of Columbia, where she later
died. Thrall had suffered multiple gunshot wounds including a
defensive wound to her right hand, three to her head, and one to
her chest. She also suffered a blunt force trauma to the back
of her head consistent with a pistol-whipping.
Officer Creamer found that the backdoor was locked by its
doorknob lock, but that the door’s deadbolt lock was not
engaged. He could hear the dog barking in the back yard.
Entering the yard from the kitchen, Officer Creamer found that
the dog had calmed down. He then determined that the gate of
the privacy fence was secured with a locked padlock.
Meanwhile, because Officer Daniel had reported seeing a
child looking out of a second floor back window, Officer Bigger
reentered the home and went upstairs. There he found Thrall’s
5
two sons, aged six and four, who were crying and upset. Police
officers removed the children from the home.
The Investigation
Officer Thomas Leo, a crime scene analyst with the Prince
William County Police Department, collected bloodstain samples
at various locations inside the townhouse. Subsequent DNA
testing of these samples confirmed that the blood was that of
Thrall and Finch. Leo also found a bloodstain on the inside of
the gate of the privacy fence. Subsequent DNA testing of this
sample showed that it was consistent with Elliott’s DNA to a
degree that a match would occur “once in the entire world
population.”
Although a murder weapon was never recovered, forensic
testing of ten bullets recovered from the home and during the
autopsies of Thrall and Finch confirmed that all had been fired
by the same weapon. The bullets were of a type used only in a
revolver-type handgun. Gary Arnsten, a firearms expert with
Virginia’s Division of Forensic Science, testified at trial that
because no weapon of this type could hold more than five or six
bullets in its revolving chamber, he was certain that the weapon
had been reloaded during the commission of the murders.
Detective Charles Hoffman of the Prince William County
Police Department spoke with Finch’s sister, Jennifer Finch, the
6
day of the murders. She informed Detective Hoffman that Finch
had a prior romantic relationship with Rebecca Gragg. She also
told him that Finch and Gragg had been involved in a bitter
custody dispute over their two children. Detective Hoffman went
to Gragg’s residence in Dale City, Virginia, located about six
miles from the crime scene. Gragg was not at home, but there
were two vehicles parked in front of the residence. One of the
vehicles was registered in Elliott’s name.
Gragg returned to her home later that day and was
interviewed by two detectives. At that time, Gragg maintained
that Elliott was her “friend and business partner.” She denied
knowing anything about the murders, but stated that Finch had
many enemies.
The following day, January 3, 2001, Detective Hoffman and
another detective traveled to Fort Meade in Hanover, Maryland,
where Elliott worked as a civilian employee for the United
States Army as a counterintelligence expert. The detectives had
learned that Elliott owned a pick-up truck and wanted “to
determine whether that truck could, in fact, have been the truck
that was seen nearby the [crime] scene.” The detectives located
the truck in a parking lot at Fort Meade, and Detective Hoffman
observed that there was a flashlight, a cellular telephone, and
a box of bandages on the seat of the truck.
7
As Detective Hoffman was taking photographs of the truck,
Elliott approached him, identified himself as the owner of the
truck, and agreed to talk to the detectives. During that
conversation, Elliott told the detectives that Gragg was an
employee at a brewing company he owned in West Virginia. He
admitted that he had supplied Gragg with a credit card in the
name of “Rebecca L. Elliott,” but maintained that this had been
for business purposes. He also told the detectives that he had
been traveling over the New Year’s holiday, as had Gragg, and
that during that time he had spoken with her several times on
his cellular telephone in an effort to arrange a business
meeting with her.
Elliott told the detectives that he was aware that Gragg
and Finch were involved in a dispute regarding the custody of
their two children. Elliott related that Gragg had traveled to
Florida over the New Year’s holiday and had taken the children
with her. He further related that Gragg had told him that she
was having car trouble and would not be able to return to
Virginia with the children in time to return them to Finch at
2:00 p.m. on New Year’s Day as she was required to do under a
visitation agreement. Elliott claimed that he had driven to
Gragg’s residence in the early afternoon of New Year’s Day “in
case Robert Finch showed up so that [Elliott] could explain to
8
him the problems Rebecca was having with getting back.” Elliott
denied he had any relationship with Gragg other than as her
employer. He also denied knowing Finch and claimed that he had
seen him only once.
Although Detective Hoffman told Elliott that his truck had
been seen in Finch’s neighborhood in the early morning hours of
the day of the murders, Elliott denied having been in the area.
Elliott claimed that he had spent the night of January first to
second sleeping in his truck at a rest area in Maryland.
Elliott voluntarily accompanied the detectives to the Anne
Arundel County, Maryland Police Department. During the course
of an interview there, Elliott admitted the true nature of his
involvement with Gragg. He told the detectives that he had
initiated a relationship with Gragg in mid-1999 after viewing
her photograph on an Internet website called “Adult Friend
Finders.” In her advertisement, Gragg had indicated that she
was looking for a “sugar daddy.” During their first meeting,
Gragg told Elliott that she had worked as a stripper and
“private escort,” a euphemism for a “call-girl” prostitute.
Gragg told Elliott that she wanted to turn her life around and
needed financial support to start a business designing and
selling costumes for strippers. She told Elliott that she was
not interested in having a romantic or sexual relationship with
9
him. Elliott agreed to this arrangement, saying that he wanted
only friendship from Gragg.
Elliott subsequently provided Gragg with significant
financial support, including paying private school tuition for
her children, paying the mortgage on one house Gragg owned in
West Virginia and rental on others where she lived with her
husband and children at various times, providing her with cars,
and permitting her to use his credit cards. Elliott also paid
for breast augmentation surgery for Gragg, who had begun
operating a pay-to-view pornographic website. Elliott admitted
that his support of Gragg had placed a significant financial
burden on him and that he had to sell investments to pay her
credit card debts.
Elliott further admitted that he knew where Finch lived and
that, after he had gone to Gragg’s house on the afternoon of
January 1, 2001, he had driven to Finch’s house. He denied
getting out of his truck, however, and claimed that he had seen
“a black man with a slinky walk going to the front door of the
home.” Elliott maintained that he had then driven to a large
national retail store and a restaurant before driving to the
rest stop in Maryland where he had spent the night. He then
claimed that he had driven back to Gragg’s residence about 3:00
a.m. on the morning of January 2, 2001, to retrieve a case of
10
motor oil that he had seen there the day before. He then went
to a convenience store where he called Gragg’s cellular
telephone on a pay telephone. Elliott claimed that he used the
pay telephone because his own cellular telephone’s battery had
run down. Telephone company records showed that a call had been
placed from the pay telephone to Gragg’s cellular telephone at
3:28 a.m. on January 2, 2001.
Elliott admitted that after calling Gragg, he drove to
Finch’s neighborhood. He admitted leaving his truck, claiming
that he did so only because he needed to urinate. Elliott
stated that after urinating by a guardrail on the side of the
road, he walked by Thrall’s and Finch’s townhouse. He denied
going onto the property and stated that he had not heard
gunshots, a scream, or anything unusual. At the conclusion of
this interview, Detective Hoffman took a photograph of an
abrasion he had noticed on one of Elliott’s hands.
On January 4, 2001, Gragg, accompanied by her lawyer, was
again interviewed by detectives investigating the murders of
Thrall and Finch. During that interview, she admitted receiving
a telephone call early on the morning of the murders, but
claimed that the call had come from Finch. Gragg claimed that
Finch had threatened to call the police if she did not return
their children to him that afternoon. Gragg also told the
11
detectives that she did not believe that Elliott had committed
the murders.
On January 7, 2001, Detective Hoffman conducted another
interview with Elliott during which Elliott admitted that he had
been in Finch’s neighborhood “hundreds of times.” He further
admitted walking through the neighborhood, but again denied that
he had ever been on the property of the townhouse where Thrall
and Finch lived.
On January 8, 2001, Officer Leo, the crime scene analyst,
took possession of Elliott’s pick-up truck pursuant to a search
warrant. He determined that the interior of the truck had
recently been cleaned, noting that the carpet was wet and that
the seats and interior had been covered with a “silicone type
base cleaner.” Nonetheless, testing of samples collected from
the underside of the truck’s floor mats showed a trace residue
of blood, though the samples were too small for accurate DNA
testing. A further blood sample found in the seat cushion was
consistent with Elliott’s DNA.
Detectives investigating the murders interviewed Gragg on
January 12, 2001 and again on January 19, 2001. She continued
to deny any knowledge of the murders. Based on the results of a
polygraph examination that Gragg had agreed to take, police
suspected that Gragg was not being fully forthcoming, but they
12
were not certain to what extent she had knowledge of the murders
or whether she may have been directly involved. Over the next
several months, Gragg had continuing contact with the police
concerning the investigation of the murders, but she did not
provide any additional information concerning Elliott.
On May 9, 2001, Elliott was arrested in Maryland and
charged with capital murder. At that time, according to
Maryland State Police, Elliott was “leaving [in his vehicle] at
a high rate of speed,” and there was some concern that he was
attempting to flee. Elliott claimed, however, that he had
intended to turn himself in.
On May 10, 2001, Prince William County detectives again
interviewed Gragg. During that interview, Gragg agreed to
submit to a second polygraph examination. After the polygraph
examiner and Detective Hoffman told Gragg that her responses to
questions concerning her knowledge of the murders indicated that
she was being untruthful, Gragg asked to speak with her
attorney.
After consulting with her attorney, Gragg told the police
that the telephone call she had received early on the morning of
the murders was not from Finch, although initially she had
assumed it was because the connection was not good and she could
not hear the caller clearly. Gragg then related that when the
13
caller realized that she thought she was talking to Finch, the
caller said he was “tired of this s*** and was going to take
care of it” and hung up. Gragg then realized that the call had
come from Elliott. She attempted to call his cellular
telephone, but the call was answered by a voice mail system.
Gragg told the detectives that she received several more
calls on her cellular telephone from Elliott later on January 2,
2001. During one call, Elliott told her that “all of our
problems had been taken care of.” In another call, Elliott
claimed that “Jerry,” a cryptic figure Elliott supposedly knew
through his work with military counterintelligence, “had come
out of nowhere to help him, that he had to go clean up this
mess.” Later, Elliott told Gragg that he was looking for a
place “to dump . . . these bloodied black trash bags from the
mess that Jerry had made.”
Gragg told the police that she had not been truthful in her
prior interviews because she was afraid of Elliott and “Jerry,”
because Elliott had once told her that “Jerry” was watching her
and that he would kill her or her family if she went to the
police. Once Elliott was in custody and the police had assured
her that there was no “Jerry,” she stated that she had decided
to be truthful. Gragg’s attorney confirmed that she had told
14
him on several occasions that she feared Elliott would harm her
if she told the police what she knew.
Indictment and Pre-trial Proceedings
On August 6, 2001, the Prince William County grand jury
returned indictments charging Elliott with the capital murder of
Thrall, the first degree murder of Finch, and two counts of the
use of a firearm in the commission of a felony. Elliott was
tried on these indictments initially in a jury trial in July
2002. After the jury had found Elliott guilty and sentenced him
to death, the trial court declared a mistrial after it had been
determined that a juror had improperly discussed the case with a
third party during the trial.
Prior to the July 2002 trial, Elliott had filed numerous
motions, among which were motions to have the Virginia capital
murder and death penalty statutes declared unconstitutional and
to have the jury instructed that, if the Commonwealth presented
evidence of vileness during the penalty determination phase of
the trial, the jury was to be unanimous in its determination of
the elements of the act that caused it to be vile. The trial
court denied these motions without comment. After the mistrial
was declared, Elliott did not renew any of these motions or
otherwise request that the trial court adopt the pre-trial
15
rulings of the first trial and apply them to the conduct of the
retrial.
Prior to the retrial, Elliott filed motions seeking
disclosure of exculpatory and impeaching information within
Rebecca Gragg’s initial statement to police and related police
reports. Elliott maintained that, as a result of Gragg’s
testimony during the first trial, he now believed that the
Commonwealth was in possession of statements by Gragg or police
reports contradicting her testimony. Elliott also sought an in
limine ruling from the trial court to permit the introduction at
trial of a videotape of Gragg’s polygraph examinations. Elliott
maintained that the polygraph evidence would show that Gragg had
a motive to fabricate a story implicating him when she learned
that police knew that she had been untruthful in her prior
interviews when she denied any knowledge of or involvement in
the murders.
The trial court, by letter to counsel, directed the
Commonwealth to disclose to Elliott all statements, whether
exculpatory or not, “authored by Rebecca Gragg and furnished to
the Office of the Commonwealth’s Attorney at some point during
the pendency of this prosecution.” The record shows that the
Commonwealth provided Elliott with additional material not
previously provided under a Brady order entered in the first
16
trial, including a forty-eight-page statement “generated by Ms.
Gragg.” The Commonwealth averred in a cover letter to the
packet containing this material that Elliott had thus been
“provided . . . with transcripts or summaries of all material
contacts between Ms. Gragg and the police concerning this . . .
case.”
On February 10, 2003, and in anticipation of Elliott’s
second trial, a hearing was conducted on Elliott’s motion to
permit the videotape of Gragg’s polygraph examinations into
evidence. During that hearing, Elliott’s counsel asserted that
he should be permitted to establish that Gragg had changed her
“story” after the police told her that she had “failed” the
polygraph examinations. The trial court ruled that during
cross-examination of Gragg, Elliott could establish that police
had confronted her on May 10, 2001, with the assertion that she
had been untruthful in her prior interviews and that is why she
had made prior inconsistent statements to the police. The trial
court reasoned that Elliott’s right to cross-examination could
be conducted “without getting into this morass of polygraph, no
polygraph, passing, failing and the like.”
17
Guilt Determination Phase
Elliott’s second trial commenced on March 24, 2003.1 During
the guilt determination phase of the trial, the Commonwealth
presented evidence in accord with the above-recited facts
concerning the murders and the subsequent police investigation.
During the course of the guilt determination phase, several
issues arose which principally relate to the polygraph
examinations of Gragg and are the subject of various assignments
of error asserted by Elliott in this appeal. For clarity, we
will confine our recitation here to the facts relevant to the
murders and subsequently recite additional facts where
appropriate to address those assignments of error.
Brandon T. Jackson, an employee of the United States Army
Intelligence & Security Command at Fort Belvoir, Virginia, had
known Elliott since 1991. He testified that on December 26,
2000, Elliott had sent him an e-mail stating that Elliott and
some co-workers at Fort Meade wanted to establish a gun range
for practice shooting. Jackson recounted that Elliott knew that
Jackson had a federal firearms dealer’s license, and that
Elliott wanted to know if Jackson could acquire gun silencers
1
Elliott has not assigned error to any aspect of the jury
selection process. Accordingly, we need not recount the
incidents of that portion of the trial.
18
because these were needed for use at the gun range to avoid
complaints from neighbors.
Jackson testified that he ignored the e-mail because he
believed Elliott’s request was “ludicrous.” He explained that
gun silencers would never be used for practice shooting because
the repeated use of silencers made them less effective at
reducing the sound of gunfire. He also testified that obtaining
gun silencers legally was a complex process. Several days after
sending the e-mail, Elliott telephoned Jackson and asked if he
had received the e-mail. He also asked Jackson detailed
questions about gun silencers and whether Jackson thought
Elliott could purchase a silencer at a gun show.
Gragg testified at length concerning her relationship with
Elliott. While not denying her willingness to financially
exploit Elliott’s attraction to her, she maintained that from
the outset she had made it clear to Elliott that she was not
seeking a romantic or sexual relationship. Gragg testified,
however, that Elliott had once claimed to her that they had
sexual intercourse while Gragg had been under the effects of a
pre-operative sedative the night before her breast augmentation
surgery.
Following this incident, Elliott was “constantly”
professing his love to Gragg and provided her with more and more
19
financial support and material goods. Though continuing to
accept these gifts, Gragg became uncomfortable with the
relationship and began refusing to see Elliott socially.
Elliott then began making excuses to see Gragg allegedly on
business related matters and would arrive unannounced at places
where he knew Gragg would be.
Elliott had employed a private investigator to aid Gragg in
her child custody dispute with Finch. When the investigator
failed to provide Elliott with any useful information, Elliott
told Gragg that “he knew people that could do it better.”
Gragg, who still had romantic feelings for Finch, told Elliott
not to interfere.
Eventually, Gragg revealed to Elliott that she had resumed
her relationship with Finch and was still in love with him.
Elliott then told Gragg that “Jerry” was “checking up” on her so
that Elliott could “keep [Gragg] in line.” When Gragg made
light of this claim, Elliott grabbed her by the arm and told her
that she should take him seriously because “people’s lives were
in danger.” Elliott also told her that if she went to the
police, these people would be killed. Elliott specifically
mentioned Finch as one of the people who would be killed.
In mid-December 2000, Elliott told Gragg that she “had
gotten him into this mess,” and that she had to help him get out
20
of it. Elliott said that, if Gragg refused, he did not know
what “Jerry” might do. Elliott gave Gragg personal information
about his wife’s financial accounts and had her pose as his wife
on the telephone to make transfers out of those accounts.
Elliott threw the paper with the information on it away, but
Gragg retrieved it and later turned it over to the police.
On December 26, 2000, the same day that Elliott sent the e-
mail to Jackson inquiring about obtaining gun silencers, Elliott
sent a rambling e-mail to Gragg to “give [her] a little more
information concerning a couple of issues that are in the
works.” Indicating that he had sent her a carbon copy of his e-
mail to Jackson, Elliott further stated that Jackson was “only
one of two people that I am working this issue with.” Elliott
claimed that the other person, who he identified as “Mac,” was
“into anything that went bang and he just may have some
connections.” Elliott further indicated that he had to meet
with “Mac” personally because “[h]e is the type of guy that
would bolt if I mentioned any of this in an email.”
Throughout the e-mail, as he had in previous communications
to Gragg, Elliott made references to having “this one issue
resolved” and the possibility of he and Gragg “hav[ing] a
relationship when [her] problem [is] taken care of.” Gragg
testified that she understood that by the “issue” and the
21
“problem” Elliott was referring to the child custody dispute
with Finch. Elliott concluded the e-mail with a postscript
telling Gragg to remember that he loved her even “if everything
goes south.”
After the Commonwealth rested, Elliott recalled Detective
Hoffman for the limited purpose of inquiring into one of the
issues, previously referenced herein, that had arisen during the
Commonwealth’s presentation of evidence. Elliott otherwise did
not offer any evidence. After being instructed by the trial
court and hearing argument from the Commonwealth and the
defense, the jury retired to consider its verdicts. During
deliberations, the jury sent a question to the trial court
asking to view a videotape of the crime scene that had been
admitted into evidence. With the concurrence of the parties,
the trial court permitted the jury to view the videotape. The
record does not reflect that there was any other communication
from the jury during this phase of the trial.
After four hours of deliberation, the jury returned its
verdicts, convicting Elliott of the capital murder of Thrall,
the first degree murder of Finch, and the two related firearm
offenses. At the request of the defense, the jury was polled
and each juror indicated agreement with the verdicts.
22
Penalty Determination Phase
Elliott has not assigned error to the conduct of the
evidentiary portion of the penalty determination phase of his
trial. Accordingly, we will recount the evidence presented in
summary fashion. The Commonwealth called Thrall’s mother,
brother, and sister-in-law as witnesses to give victim impact
testimony. Each recounted the effect of Thrall’s murder on her
family, including the effect it had on her two sons.
Elliott called his wife and six of his co-workers as
character witnesses. Their testimony consisted principally of
assertions of Elliott’s good character, mild manner, and strong
work ethic, including his twenty years enlisted service in the
United States Army as a counterintelligence specialist and his
subsequent civilian employment in that same capacity.
Elliott’s wife testified that they had married in 1976 and
that they had a daughter. Elliott also had children from a
prior marriage. She admitted that Elliott had not had a close
relationship with their daughter. She maintained, however, that
he was not a violent person and “would not hurt anybody.” On
cross-examination, Elliott’s wife maintained that she had been
unaware of Elliott’s relationship with Gragg. Mrs. Elliott also
testified that she was unaware until after the murders that
23
Elliott had dissipated about $200,000 of her separate assets
during the course of his relationship with Gragg.
The trial court, having ruled that the Commonwealth could
not argue Elliott’s future dangerousness to society as an
aggravating factor supporting the imposition of the death
penalty, ruled that the case would be submitted to the jury only
on the vileness aggravating factor. During consideration of the
jury instructions, Elliott’s counsel stated that he agreed with
the proposed instruction which, in relevant part, defined the
vileness aggravating factor as requiring that the murder of
Thrall “was outrageously or wantonly vile, horrible or inhuman,
in that it involved torture, depravity of mind or aggravated
battery of the victim beyond the minimum necessary to accomplish
the act of murder.”
Elliott did not request an instruction requiring that the
jury agree unanimously on the basis for finding the murder to
have been vile, as he had requested in his pre-trial motion
prior to his first trial. Rather, Elliott’s sole assertion at
this point was that, “for the record,” he objected to the jury
being instructed on capital murder because the evidence would
not support a finding that the murder of Finch was vile. While
conceding that he had no authority other than “a new article [he
had] read,” Elliott’s counsel contended that where the capital
24
murder charge was premised on there having been one or more
killings as part of the same transaction, the jury was required
to find that all the killings were vile. The trial court
overruled this objection and again asked if Elliott concurred
with the instructions. Elliott’s counsel replied, “Yes, other
than the objection I’ve made.”
While the jury was deliberating, it sent a question to the
trial court asking clarification on where the money to pay a
fine imposed on Elliott would come from and “where would the
money go.” With concurrence of the parties, the trial court
instructed the jury that it was not to concern itself with these
matters. The record does not reflect that there was any other
communication from the jury during this phase of the trial.
The jury returned its verdicts, sentencing Elliott to death
for the capital murder of Thrall, to life imprisonment for the
first degree murder of Finch, and to a total of eight years
imprisonment for the two firearm offenses. At the request of
the defense, the jury was polled and each juror indicated
agreement with the verdicts.
Sentencing
After the jury returned its verdict imposing the death
sentence, the trial court ordered the preparation of a post-
sentence report in accord with Code § 19.2-264.5. In that
25
report, Elliott claimed for the first time that his relationship
with Gragg had in fact evolved into a sexual, though not
necessarily romantic, arrangement. Elliott maintained that he
had not disclosed this fact to the police at Gragg’s request.
Elliott continued to maintain his innocence.
Following preparation of the post-sentence report, the
trial court held a sentencing hearing on May 22, 2003. During
that proceeding, the trial court overruled several post-verdict
motions filed by Elliott. To the extent these motions are
pertinent to issues raised in this appeal, we will address their
substance within the discussion of the relevant assignments of
error. Addressing the trial court prior to the imposition of
sentence, Elliott denied any involvement in the murders of
Thrall and Finch, asserting that he was the victim of “lies that
were told in [the] courtroom” and “a police department that
practices Gestapo techniques.” The trial court imposed sentence
in accord with the jury’s verdicts.
We consolidated the automatic review of Elliott’s death
sentence with his appeal of the capital murder conviction. Code
§ 17.1-313(F). Elliott’s appeal of his non-capital convictions
was certified from the Court of Appeals, Code § 17.1-409,
26
consolidated with his capital murder appeal, and the
consolidated appeals were given priority on our docket.2
DISCUSSION
Elliott raises twenty assignments of error with respect to
the conduct of his trial and the imposition of the death
sentence. The Commonwealth contends that many of Elliott’s
assignments of error either were not properly preserved in the
trial court or otherwise have been procedurally defaulted. We
will address Elliott’s assignments of error seriatim,
considering the Commonwealth’s assertions of waiver where
relevant.
The “Reasonable Doubt” Jury Question Issue
In preparing for this appeal, Elliott’s appellate counsel3
discovered in the trial court’s manuscript record a handwritten
note, apparently composed by a juror, which reads:
Can you supply a more simplistic definition of
reasonable Doubt from a guilt or im (sic) innocence
point of View?
2
Except to the extent that Elliott asserts that errors in
the general conduct of his trial would require a reversal of all
his convictions, Elliott does not directly challenge his
convictions or sentences for the non-capital crimes.
3
Elliott’s trial counsel had sought to withdraw from
representation following the mistrial of Elliott’s first trial.
The trial court denied the motion to withdraw, and trial counsel
represented Elliott pro bono publico during the second trial.
Subsequently, Elliott’s appellate counsel were substituted and
served pro bono publico.
27
In his first assignment of error, Elliott contends that the
trial court erred in failing to inform his counsel of this jury
question. Elliott asks that this Court remand the case to the
trial court for an evidentiary hearing “to determine whether the
jury asked the reasonable doubt question appearing in the
record.”
Because the existence of the “reasonable doubt” jury
question was not discovered until after the trial court’s
jurisdiction had expired, no inquiry was made in the trial court
as to whether the jury had intended for this question to reach
the trial judge. The Commonwealth contends that because the
alleged failure of the trial court to inform Elliott of the
question was not the subject of any objection in the trial
court, the issue cannot be raised for the first time on appeal.
Rule 5:25. Elliott responds that “a party can[not] waive an
argument before becoming aware of the error.”
As we previously noted herein, there is no indication in
the record that the trial court received any inquiry from the
jury other than the request to view the crime scene videotape
during the guilt determination phase and the question concerning
the imposition of a fine during the penalty determination phase.
Unlike the questions received by the trial court, the
“reasonable doubt” jury question contains no response from the
28
trial court. Beyond these facts, the matter reduces itself to
one involving pure speculation, and we decline to speculate
whether the jury actually intended to send the purported jury
question at issue to the trial court for a response.
Accordingly, we will take no further consideration of this issue
in this appeal.4
Polygraph Evidence Issues
In his second assignment of error, Elliott asserts that the
trial court erred in overruling his motion in limine to have the
videotape of Gragg’s polygraph examinations admitted into
evidence. Elliott acknowledges that evidence of polygraph
examinations is not admissible to show the correctness of the
results of such examinations. Relying on Crumpton v.
Commonwealth, 9 Va. App. 131, 384 S.E.2d 339 (1989), he contends
that evidence of a polygraph examination may be admissible to
explain “the motive for, or context underlying, testimony or
statements given by a witness after the witness is told of the
results of his polygraph examination.” The Commonwealth
responds that Elliott’s reliance on Crumpton is misplaced and
that the trial court’s ruling in this case is in accord with our
4
Moreover, the relief that Elliott seeks, a remand for an
evidentiary hearing in the trial court, is not one that may be
afforded in a direct appeal.
29
decision in Robinson v. Commonwealth, 231 Va. 142, 155, 341
S.E.2d 159, 167 (1986), where we held that results of a
polygraph examination may not be used to impeach a witness. We
agree with the Commonwealth.
In Crumpton, the Court of Appeals held that a criminal
defendant had a right to give a full explanation of his prior
inconsistent statements to the police “so long as that
explanation did not also necessarily invoke the polygraph
examination results as proof that he had been truthful” when he
testified. 9 Va. App. at 137, 384 S.E.2d at 343. The Court in
Crumpton emphasized that its holding was based upon “the
particular facts and procedural posture” in which the issue
arose in that case. Id., 384 S.E.2d at 342. Moreover, the
Court expressly acknowledged our clear precedent, as expressed
in Robinson, 231 Va. at 156, 341 S.E.2d at 167, that the results
of polygraph examinations are not admissible whether they favor
the accused or are agreed to by both the accused and the
Commonwealth. Crumpton, 9 Va. App. at 135, 384 S.E.2d at 342.
Crumpton is inapplicable to the present case. It is
evident that Elliott sought to impeach Gragg’s credibility by
the introduction of evidence of Gragg’s polygraph examinations
as reflected in the videotape of those examinations.
Accordingly, our decision in Robinson is controlling, and we
30
hold that the trial court did not err in denying Elliott’s
motion in limine to admit into evidence the videotape of Gragg’s
polygraph examinations.
The remaining polygraph issues raised by Elliott in this
appeal arose at trial in the following context. During
Elliott’s counsel’s cross-examination of Detective Hoffman in
the guilt determination phase of the trial, the following
exchange occurred:
Q. Now there is a gentleman in your police department
− and I don’t necessarily want you to tell me what he
does, but I want to ask you the question. There is a
Mr. Meyers; you are familiar with that name?
A. Yes, sir.
Q. He is a person that interviewed Rebecca [Gragg] as
well as you; am I right?
A. I believe you’re referring to the polygrapher?
Elliott’s counsel immediately requested a bench conference.
Counsel asserted that he had specifically framed his question so
that Detective Hoffman would not identify Meyers as a polygraph
examiner. The trial court agreed and asked, “[w]hat if anything
do you want to do?” Elliott’s counsel asserted that Hoffman had
“opened the door and I want to go in it.” The trial court
reflected that it was “a little dismayed by the answer [Hoffman]
gave,” excused the jury, and proceeded to question Hoffman.
31
The trial court questioned Detective Hoffman on why he had
referred to Meyers as “the polygrapher.” Hoffman explained that
there were two officers in the police department named Meyers.
He conceded upon further questioning, however, that the other
officer was a patrolman who had not been involved in the
investigation of the Thrall/Finch murders.
Elliott’s counsel maintained that because the jurors were
now aware that Gragg had taken a polygraph examination, they
would naturally assume that she had passed the examination and,
thus, tend to find her testimony more credible. The trial court
offered to instruct the jury either that it should disregard
Detective Hoffman’s last answer and/or to specifically instruct
the jury that the fact that a witness may have taken a polygraph
examination should not lend credence to the witness’s testimony.
Elliott’s counsel indicated that he would prefer that the jury
only be instructed to disregard the answer, and that he agreed
to this remedy “under protest.”
Elliott’s counsel then moved for a mistrial, stating that
“[i]t was the responsibility on the part of the Commonwealth to
inform [Detective Hoffman] not” to make reference to Gragg
having taken polygraph examinations. Elliott’s counsel further
stated that while he did not “know why [Hoffman] did it . . . he
has been a police officer long enough to know that he shouldn’t
32
be discussing polygraphs in courtrooms . . . it was intentional
in that regard.” The trial court denied the motion for
mistrial. The trial court then instructed Detective Hoffman
that he was not to mention the polygraph examinations again.
When the jury returned, the trial court instructed the jurors
that they “will disregard the last answer given by this
witness.”
Elliott subsequently filed a post-verdict motion for a new
trial, asserting that the jury would have been unable to follow
the trial court’s instruction and disregard Detective Hoffman’s
answer indicating that Meyers was a polygraph examiner. During
the sentencing hearing, the trial court expressly found that
Hoffman had inadvertently mentioned Meyers’ role as a polygraph
examiner, and that, without a more definitive assertion that
Gragg had undergone polygraph examinations, it would require “an
inference upon inference upon inference” for the jury to have
concluded that Gragg had passed the examinations. The trial
court denied the motion for a new trial, ruling “that one can
assume to the extent that answer has any effect at all, that
[the jury] did in fact follow the Court’s instructions to”
disregard the answer.
In his third assignment of error, Elliott contends that the
trial court erred in not permitting him to introduce the results
33
of Gragg’s polygraph examinations to rebut the false impression
that Gragg had been truthful in her statements to the police.
Elliott contends that the jury would naturally have such an
impression from Detective Hoffman’s reference to a “polygrapher”
having interviewed Gragg. Elliott asserts, as he did at trial,
that Hoffman’s response “opened the door” to the admission of
the results of Gragg’s polygraph examinations. We disagree.
The term “opening the door” is a catchphrase often used to
refer to the doctrine of curative admissibility. Curative
admissibility, in its broadest form, allows a party to introduce
otherwise inadmissible evidence when necessary to counter the
effect of improper evidence previously admitted by the other
party. See Clark v. State, 629 A.2d 1239, 1244-45 (Md. Ct. App.
1993); see also 1 John H. Wigmore, Wigmore on Evidence, § 15
(Rev. ed. 1983). The specific facts of this case do not
implicate the application of this doctrine. We are of opinion
that the trial court properly exercised its discretion to give a
curative instruction to the jury under the circumstances rather
than to permit Elliott to introduce otherwise inadmissible and
unreliable evidence.
In his fourth and fifth assignments of error, Elliott
contends, respectively, that the trial court erred in not
granting his motion for mistrial and in not granting his motion
34
for a new trial on the ground that the curative instruction
given by the trial court was not adequate to cure the prejudice
caused by Detective Hoffman’s testimony.
A trial court exercises its discretion when it
determines whether it should grant a motion for
mistrial. Whether improper evidence is so prejudicial
as to require a mistrial is a question of fact to be
resolved by the trial court in each particular case.
Unless this Court can say that the trial court’s
resolution of that question was wrong as a matter of
law, it will not disturb the trial court’s decision on
appeal. A judgment will not be reversed for the
improper admission of evidence that a court
subsequently directs a jury to disregard because
juries are presumed to follow prompt, explicit, and
curative instructions.
Beavers v. Commonwealth, 245 Va. 268, 280, 427 S.E.2d 411, 420,
cert. denied, 510 U.S. 859 (1993) (citations omitted).
As the trial court noted during the sentencing hearing, the
oblique reference to a “polygrapher” is not so inherently
prejudicial as to require the trial court to grant a mistrial or
to set aside the verdict and order a new trial. See Epperly v.
Commonwealth, 224 Va. 214, 234, 294 S.E.2d 882, 893-94
(1982) (holding that a witness’s mention of the word “polygraph”
did not cause harmful error because the reference was elicited
“without definition or elaboration”). We hold that in this case
the giving of a prompt curative instruction to disregard the
reference, which the jury is presumed to have obeyed, was
sufficient to avoid any prejudice to Elliott and, thus, the
35
trial court did not abuse its discretion in denying the motions
for a mistrial and for a new trial.
Gragg’s Alleged False Testimony
During his cross-examination of Gragg, Elliott’s counsel
attempted to impeach Gragg by asserting that she had embellished
her trial testimony with inculpatory details that had not been
included in the interview she gave to police on May 10, 2001.
Specifically, Elliott’s counsel contended that, in contrast to
her trial testimony, she had not told police that Elliott had
said during one of the telephone calls after the murders that he
was “covered with blood” and that the police were “swarming”
around. Gragg testified that while these details were not in
the transcript of her interview with the police, she had “told
[Detective Hoffman] everything when we were outside” taking a
cigarette break and that “when I came back inside they made me −
they wrote it down.” Under further questioning, Gragg was
uncertain whether the police had written the statement
containing these additional details for her to sign or whether
she had written the statement herself.
Elliott’s counsel, noting that such a statement “has not
been provided to the Defense,” requested that Elliott be
provided a copy of this written statement. The Commonwealth’s
Attorney advised the trial court that he had no knowledge of the
36
written statement’s existence. As it was late in the day, the
trial court called a recess and directed the Commonwealth’s
Attorney to make inquiries regarding the existence of the
written statement.
After the Commonwealth’s Attorney and Elliott’s counsel
jointly interviewed Detective Hoffman, the Commonwealth’s
Attorney advised the trial court that, according to Hoffman, “no
such document was created by him or by anyone . . . he did not
have [Gragg] sign anything or read over anything” on May 10,
2001. Elliott’s counsel stated that he wanted “a stipulation
from the government that there is no such statement.” The trial
court ruled that either the Commonwealth could agree to such a
stipulation or Elliott could call Hoffman “to establish that no
such statement exists . . . absent the stipulation by the
Commonwealth the statement does not exist, you’re entitled to
prove that it doesn’t exist.” The trial court then asked
Elliott’s counsel, “What else do we need to do?” Elliott’s
counsel replied, “Not a thing.”
Elliott’s counsel then asked the Commonwealth’s Attorney
whether he would stipulate that the statement did not exist.
The Commonwealth’s Attorney replied, “We don’t know it doesn’t
exist, we don’t have any evidence on it. You’ve just got to
argue that to the jury that there is no such document.” The
37
trial court again asked, “Well, what else can we do today?”
Elliott’s counsel replied, “That’s it, your Honor.”
When the trial resumed the following morning, Elliott’s
counsel continued his cross-examination of Gragg. Gragg
conceded that she did not mention Elliott saying he was “covered
in blood” or that police were “swarming” in either the May 10,
2001 interview or in a written statement she later prepared for
the police.5
Elliott’s counsel then questioned Gragg about the written
statement she alleged contained these details, asking her to
describe the paper it had been written on and to clarify whether
she or Detective Hoffman had written the statement. Gragg
testified that she could not recall whether the statement had
been written on a pad or on loose paper, but that she believed
Hoffman had written the statement and she had read it and signed
it. Gragg further testified that when she later asked the
Commonwealth’s Attorney for a copy of this statement, he told
her to ask Detective Hoffman, who “told me that he could not
find it.”
After Elliott’s counsel concluded his cross-examination of
Gragg, the trial court called a bench conference and asked the
5
This written statement was the one provided to Elliott
during the pre-trial proceedings.
38
Commonwealth’s Attorney if he had any recollection of having
been asked by Gragg about the May 10, 2001 written statement or
referring her to Detective Hoffman. The Commonwealth’s Attorney
stated that he had no such recollection.
Elliott’s counsel stated that while he was “not suggesting
that [the Commonwealth] did anything improper” concerning
Gragg’s testimony, his “concern is how do we proceed knowing
there is no such statement.” The trial court again opined that
Elliott could call Detective Hoffman to testify that the
statement did not exist. Elliott’s counsel then stated that he
was concerned the Commonwealth might try to rehabilitate Gragg
in redirect examination. The trial court then asked whether
Elliott’s counsel was asserting that “the Commonwealth knows
this is . . . perjury.” Elliott’s counsel responded he was not
making that assertion. Although the Commonwealth conducted a
brief redirect examination of Gragg, it did not return to the
issue of the alleged May 10, 2001 written statement.
After the Commonwealth rested, Elliott recalled Detective
Hoffman and asked him whether he had prepared a written
statement for Gragg to sign on May 10, 2001. Hoffman testified
that neither he nor any other officer prepared a statement for
Gragg to sign on that day.
39
Elliott filed a post-verdict motion for an evidentiary
hearing “to determine the factual circumstances surrounding the
existence of a written statement allegedly signed by Rebecca
Gragg at the behest of the police on May 10, 2001.” Elliott
contended that either “Gragg lied on the stand in a deliberate
attempt to make her story appear more credible and consistent”
or “the written statement was signed by her off the record, and
the police and/or the Commonwealth lost it or suppressed it.”
Elliott stated that an evidentiary hearing was necessary because
“any possibility of witness perjury or police misconduct must be
fully explored.”
At the sentencing hearing, the trial court ruled that the
matter had been “explored before this jury to the extent . . .
that the Defendant saw fit to do so . . . . [T]o conduct an
additional hearing at this point on the same issue . . . is not
warranted.” The trial court denied the motion for an
evidentiary hearing in the sentencing order.
In his sixth assignment of error, Elliott contends that
“[t]he trial court erred in failing to declare a mistrial based
upon the presentation of false testimony by the Commonwealth’s
witness Rebecca Gragg that she had signed a written statement
during an interview with the police on May 10, 2001.” In his
seventh assignment of error, Elliott contends that “[t]he trial
40
court erred in failing to require the Commonwealth to cure the
false testimony by its witness Rebecca Gragg that she had signed
a written statement during an interview with the police on May
10, 2001.” In briefing these assignments of error, Elliott
directs the Court to two points in the trial transcript,
asserting that at these points “the trial court failed to
declare a mistrial, to require the Commonwealth to take steps to
correct the falsehood offered by its star witness, or to
otherwise remedy the introduction of this testimony.”
The Commonwealth contends that the record does not show
that Elliott requested a mistrial or otherwise requested the
trial court to “remedy the introduction of this testimony.”
Accordingly, the Commonwealth asserts that Elliott may not raise
these issues for the first time on appeal. Rule 5:25.
In his eighth, ninth, and tenth assignments of error,
Elliott contends, respectively, that the trial court erred “in
failing to find that the Commonwealth violated its obligation to
disclose exculpatory evidence,” in failing to grant his post-
trial motion for an evidentiary hearing to inquire into the
existence of Gragg’s alleged written statement, and “in failing
to grant a mistrial based upon the Commonwealth’s failure to
disclose exculpatory evidence.” The Commonwealth contends that
Elliott, though purporting to relate these assignments of error
41
to the question presented in which he argued his sixth and
seventh assignments of error, failed to adequately brief these
issues.
We have reviewed the trial transcript at the two points
referenced by Elliott with respect to the trial court’s failure
to grant a mistrial or provide him with some other remedy for
Gragg’s alleged false testimony. In addition, we have
considered the entire record of Gragg’s testimony concerning the
statement that she alleged she signed on May 10, 2001 and the
various bench conferences related to that testimony. At no
point in the record can we discern where Elliott requested that
the trial court declare a mistrial, sought a directive from the
trial court requiring the Commonwealth to “cure” Gragg’s false
testimony, or asked the trial court for any specific remedy.
At best, the record shows that Elliott’s counsel asked
whether the Commonwealth would stipulate that Gragg had not
signed any statement on May 10, 2001. In response, the trial
court opined that in the absence of such a stipulation,
Elliott’s recourse was to call Detective Hoffman to rebut
Gragg’s testimony. In each instance where the trial court
offered this opinion, Elliott’s counsel did not object or
otherwise assert that this course of action was not adequate.
Moreover, Elliott availed himself of that remedy by calling
42
Detective Hoffman as his own witness. Thus, we agree with the
Commonwealth that Elliott did not preserve for appeal in the
trial court the issues raised in assignments of error six and
seven.
Similarly, we can discern no argument of assignments of
error eight, nine, and ten within Elliott’s opening appellate
brief. The failure to brief an assignment of error constitutes
a waiver of the argument. See, e.g., Burns v. Commonwealth, 261
Va. 307, 318, 541 S.E.2d 872, 880, cert. denied, 534 U.S. 1043
(2001). Moreover, as with assignments of error six and seven,
there does not appear to be any point in the record were Elliott
requested the trial court to rule that the Commonwealth had
failed to disclose exculpatory evidence, assuming that Gragg’s
alleged statement could be considered exculpatory, or sought a
mistrial on that ground. Thus, even if argued on brief, these
assignments of error would be barred in any case by the lack of
preservation in the trial court.
In his reply brief, Elliott contends that even if he is
precluded from raising these issues by his failure to preserve
them in the trial court, “the ends of justice would demand that
this Court address [these issues] because the false testimony by
a government witness strikes at the very heart of the legitimacy
of the judicial system.” Even if we were to assume, and indeed
43
there is support in the record for making the contention, that
Gragg fabricated her testimony concerning the May 10, 2001
written statement, the record is amply clear that the jury was
aware of this possibility. Every instance in which it is
possible, or even probable, that a witness has been untruthful
with respect to some part of her testimony does not require the
declaration of a mistrial, the striking of the witness’s
testimony, or some other intervention on the part of the trial
court. To the contrary, one of the principal duties of a jury
as factfinder is to make judgments on the credibility of the
witnesses and “[a] factfinder who appreciates a heightened
possibility of perjury will respond with heightened scrutiny.”
Ohler v. United States, 529 U.S. 753, 764 (2000).
Elliott thoroughly cross-examined Gragg about her claim to
having signed the May 10, 2001 written statement and called
Detective Hoffman to rebut that testimony.6 The record reflects
that in the guilt determination phase of the trial, the question
of Gragg’s credibility was a central theme of Elliott’s closing
argument. Moreover, Elliott consistently maintained at trial
6
In his post-trial motion for an evidentiary hearing,
Elliott contended that he wanted to question other police
detectives who might have knowledge of whether the statement
existed. As the trial court indicated in denying that motion,
Elliott had ample opportunity to call witnesses at trial.
44
that he did not ascribe any misconduct to the Commonwealth with
respect to Gragg’s questionable testimony. Under these
circumstances, we perceive no reason to invoke the ends of
justice exception in order to permit Elliott to raise here
issues that were never presented to or ruled on by the trial
court.
For these reasons, we hold that Elliott has waived the
issues raised in assignments of error six, seven, eight, and ten
by failing to preserve those issues in the trial court, and that
he has waived the issue raised in assignment of error nine by
failing to brief that issue in this appeal.
Exclusion of Evidence of Third Parties’
Animosity Towards Finch
During the trial, Elliott sought to question Gragg about an
incident in which Gragg’s husband had brandished a gun at Finch.
The trial court sustained the Commonwealth’s objection, ruling
that “unrelated acts of violence would have no bearing on the
case . . . I don’t see that it’s relevant.” In his eleventh
assignment of error, Elliott contends that the trial court erred
in not permitting him to introduce this evidence. Elliott
contends that the evidence was relevant to show that Gragg’s
husband “had as much motivation as [Elliott] to murder Mr.
Finch, and the evidence of his prior brandishment of a gun
45
against Mr. Finch shows that he was capable of acting on that
motivation.”
“Proffered evidence that merely suggests a third party may
have committed the crime charged is inadmissible; only when the
proffered evidence tends clearly to point to some other person
as the guilty party will such proof be admitted. We have stated
that a large discretion must and should remain vested in the
trial court as to the admission of this class of testimony.”
Johnson v. Commonwealth, 259 Va. 654, 681, 529 S.E.2d 769, 784,
cert. denied, 531 U.S. 981 (2000) (citations and internal
quotation marks omitted). As in Johnson, the evidence proffered
by Elliott “bore no direct relation to the crimes charged,” but
tended only to show a prior history of a bad relationship
between one of the victims and a third party. Id., 529 S.E.2d
at 785; cf. Karnes v. Commonwealth, 125 Va. 758, 766-67, 99 S.E.
562, 565 (1919) (holding evidence of recent death threats by
third party admissible). Accordingly, we hold that the trial
court did not abuse its discretion in ruling that this evidence
was irrelevant and inadmissible.
Elliott also sought to question Detective Hoffman on
whether he was aware of an allegation by Finch, found in an
affidavit in the record of Gragg’s and Finch’s custody dispute,
that Gragg had induced some acquaintances to assault Finch. The
46
trial court ruled that the statement was inadmissible hearsay.
In his twelfth assignment of error, Elliott contends, citing
Chambers v. Mississippi, 410 U.S. 284, 302 (1973), that the
trial court should not have “applied [the hearsay rule]
mechanistically to defeat the ends of justice.” Id. The
Commonwealth responds that Elliott did not argue for a Chambers
exception to the hearsay rule in the trial court and, thus, this
argument is barred by Rule 5:25.
We need not consider whether Elliott’s generalized
objection to the trial court’s exclusion of this evidence as
hearsay was adequate to encompass the argument he now makes on
appeal. Even if the due process argument under Chambers were
cognizable on this appeal, unlike the direct or exculpatory
proof noted by the United States Supreme Court in that case,
here the evidence is too tenuous and speculative to have
relevance to prove that Gragg or some other third party acting
for her may have committed the murders. Accordingly, we hold
that the trial court properly excluded this evidence.
Sufficiency of the Evidence
At the conclusion of the Commonwealth’s presentation of
evidence in the guilt determination phase of the trial, Elliott
made a motion to strike the Commonwealth’s evidence “to preserve
the record.” However, Elliott did not offer any express
47
argument that the Commonwealth had failed to make out a prima
facie case for capital murder or the other crimes with which he
was charged. The trial court denied the motion to strike the
Commonwealth’s evidence.
In a post-trial motion for “a new trial,” Elliott contended
that the evidence was not sufficient beyond a reasonable doubt
to prove that he committed the murders.7 Elliott contended in
that motion that the Commonwealth had failed to exclude every
reasonable hypothesis of his innocence. Elliott further
contended that even if the evidence were sufficient to prove
that Elliott committed the murders, the Commonwealth failed to
prove that Finch’s murder preceded Thrall’s murder. Though
citing no authority for the proposition, Elliott contended that
a capital murder premised upon the “killing of more than one
person as a part of the same act or transaction” under Code
§ 18.2-31(7) required proof that the victim of the capital
murder was killed after some other person had been killed.
Following argument at the sentencing hearing, the trial court
denied this motion without comment.
7
It goes without saying that if the trial court had
concurred in Elliott’s contention that the evidence had not
proven his guilt beyond a reasonable doubt as a matter of law,
the relief to which he would have been entitled was the setting
aside of the verdicts and a dismissal of the indictments with
prejudice, not a new trial.
48
In his thirteenth assignment of error, Elliott contends
that the trial court erred in failing to grant his motion to
strike during the guilt determination phase of the trial. In
his fourteenth assignment of error, he contends that the trial
court erred in failing to grant his “motion to set aside the
verdicts for insufficiency of the evidence (denominated a motion
for a new trial).” Elliott failed to expressly relate either of
these assignments of error to a question presented and in
reviewing his questions presented, we do not find any that would
incorporate these issues. Moreover, we cannot discern any
argument within his brief that expressly addresses these
assignments of error. Accordingly, we hold that Elliott has
waived these assignments of error.8 See Burns, supra.
Vileness Aggravating Factor Issues
In his fifteenth assignment of error, Elliott contends that
the trial court erred in overruling his motion to have
Virginia’s capital murder and death penalty statutes declared
unconstitutional “on the ground that the ‘vileness’ aggravator
8
In any case, when considering challenges to the
sufficiency of the evidence in a criminal trial, we will not
disturb the factfinder’s verdict unless it is plainly wrong or
without evidence to support it. Stockton v. Commonwealth, 227
Va. 124, 146, 314 S.E.2d 371, 385, cert. denied, 469 U.S. 873
(1984). The record of Elliott’s second trial is adequate to
support the jury’s verdicts convicting him of the murders of
Thrall and Finch and the related firearm offenses.
49
. . . is unconstitutionally vague on its face and as applied in
this case and therefore fails to provide meaningful guidance to
the jury.” This contention is an amalgam of three arguments
raised by Elliott in the omnibus motion filed prior to his first
trial challenging the constitutionality of the capital murder
and death penalty statutes.
In his sixteenth assignment of error, Elliott contends that
“[t]he trial court erred in failing to instruct the jury on the
narrowing construction of the ‘vileness’ aggravator adopted by
this Court.”9 Although it is not entirely clear from the
argument he makes on brief with respect to this assignment of
error, it would appear that Elliott is asserting the same
argument as was made in one section of the omnibus motion to
have the capital murder and death penalty statutes declared
unconstitutional filed prior to his first trial. In any event,
we can find nothing in the record of his second trial to suggest
9
Elliott does not expressly state how the definition of the
vileness aggravating factor should have been narrowed or limited
in jury instructions. Presumably, Elliott is contending that
the killing of Thrall lacked one or more of the elements tending
to show that it involved “torture, depravity of mind or an
aggravated battery to the victim.” Elliott provides no
authority for his assertion that this Court has “adopted”
instructions to this effect, although we have permitted trial
courts the discretion to provide further guidance as to the
meaning of these terms. See Jones v. Commonwealth, 228 Va. 427,
446, 323 S.E.2d 554, 564-65 (1984), cert. denied, 472 U.S. 1012
(1985).
50
that he sought an instruction giving a “narrowing construction”
of the vileness aggravator.
In his seventeenth assignment of error, Elliott contends
that “[t]he trial court erred in denying appellant’s motion to
instruct the jury to agree unanimously upon a single element of
‘vileness.’ ” This argument was also raised in the omnibus
motion filed prior to Elliott’s first trial and in a separate
motion filed prior to the first trial seeking a specific jury
instruction. Elliott did not proffer an instruction to this
effect during the penalty determination phase of his second
trial.
The Commonwealth asserts that because Elliott did not renew
the pre-trial motions from his first trial or ask that the trial
court adopt its prior rulings on those motions in his second
trial, he failed to preserve these issues for appeal. The
Commonwealth further contends that by agreeing to the jury
instruction defining the vileness aggravating factor in his
second trial and not proffering any alternative instructions, he
has waived his claims that the trial court should have given
“narrowing construction” and “single element of vileness
unanimity” instructions.
In his reply brief, Elliott asserts that he was not
required to reassert his pre-trial motions from his first trial
51
because “the rulings in the first trial automatically carry over
to the second one.” For the same reason, Elliott contends that
he was not required to proffer his alternative instructions
limiting the vileness aggravating factor or requiring a
unanimous determination of the elements making the crime vile,
because the trial court had ruled on these issues prior to his
first trial.
The cases that Elliott relies upon for his assertion that
rulings from a mistrial carry over to a subsequent retrial are
inapposite and distinguishable. In Bradley v. Duncan, 315 F.3d
1091 (9th Cir. 2002), the federal Court of Appeals for the Ninth
Circuit ruled that where a trial court had determined that an
entrapment instruction was required in a trial that ended in a
mistrial, the instruction was also required to be given in the
subsequent retrial where “no additional evidence to the
contrary” rebutted the prior ruling. Id. at 1098. Thus,
Bradley does not stand for the proposition that all rulings of a
trial court in a prior mistrial carry over to a subsequent trial
but, rather, that the rationale underlying a particular ruling
in the first trial had been correct and should have been applied
to identical circumstances in the retrial.
In City of Cleveland v. Cleveland Electric Illuminating
Co., 538 F.Supp. 1328 (N.D. Ohio 1981), the trial court did
52
observe that “a mistrial does not affect or invalidate any of
the pre-trial proceedings in the case.” Id. at 1330. However,
that statement is made in an opinion addressing a motion to have
the pre-trial rulings from a mistrial adopted in the retrial.
Moreover, the rulings at issue were those in orders disposing of
discrete claims within a complex litigation, not rulings on
issues of law related to matters that would arise during the
retrial. In commenting on the rationale of the Cleveland
Electric decision, the federal Court of Appeals for the Sixth
Circuit has opined that the trial court is not bound in a
subsequent trial by the rulings of a prior mistrial, so much as
it has the discretion to “recognize and enforce prior rulings
. . . but also retains the power to reconsider previously
decided issues as they arise in the context of a new trial.”
United States v. Todd, 920 F.2d 399, 404 (6th Cir. 1990).
We concur in the view expressed by the Commonwealth in the
present case that when a criminal case ends in a mistrial, the
rulings made by the trial court prior to or during the aborted
trial do not automatically carry over to a subsequent retrial.
Thus, a defendant may not rely upon objections made at an
aborted trial to preserve issues for appeal following his
conviction in a subsequent trial. See, e.g., United States v.
Palmer, 122 F.3d 215, 221 (5th Cir. 1997) (“objections made at
53
the aborted trial have no bearing on the retrial, as the two are
entirely separate affairs”). Similarly, a defendant may not
assert that rulings made on pre-trial motions prior to a
mistrial are binding upon the trial court in a subsequent trial
unless the trial court adopts those rulings on its own motion or
in addressing a motion of one or both of the parties. See,
e.g., United States v. Oakey, 853 F.2d 551, 554 (7th Cir. 1988),
cert. denied, 488 U.S. 1033 (1989). In the absence of a ruling
in the second trial adopting the rulings of the aborted trial,
the defendant is required to renew his motions with specificity
in order to preserve the record of the trial court’s rulings and
the defendant’s objections thereto for any subsequent appeal of
the retrial.
Elliott does not assert that the trial court adopted its
prior rulings for purposes of his second trial, and we have not
been directed to any place in the record where such was done or
requested. Accordingly, we hold that under these circumstances
Elliott is barred from raising the issues asserted in this
appeal in assignments of error fifteen, sixteen, and seventeen.
Additionally, we also agree that Elliott’s failure to proffer in
his second trial alternative instructions limiting the
definition of the vileness aggravating factor or requiring
unanimity on the elements of vileness acts as a waiver of the
54
claim that the trial court should have given such instructions
to the jury.10
Statutory Review
Elliott’s eighteenth and nineteenth assignments of error
merely restate the elements of the statutory review of any death
sentence mandated by Code § 17.1-313(C). Accordingly, we will
combine the mandatory review of Elliott’s death sentence with
our discussion of the issues raised by Elliott in his
assignments of error.
10
We note further that, as framed within the omnibus
pretrial motion challenging the constitutionality of Virginia’s
capital murder and death penalty statutes, Elliott’s contention
that the vileness aggravating factor is vague is a reassertion
of an argument previously rejected by this Court on numerous
occasions. See, e.g. Wolfe, 265 Va. at 208, 576 S.E.2d at 480
and cases cited therein. Shortly before Elliott’s first trial
commenced, the United States Supreme Court released its opinion
in Ring v. Arizona, 536 U.S. 584 (2002). In briefing his
argument in this appeal that the vileness aggravating factor is
unconstitutionally vague, Elliott for the first time asserts
that Ring somehow implicates our prior consideration of this
issue. Elliott’s failure to argue the application of Ring in
the trial court, despite the fact that nine months elapsed
between that opinion’s release and the commencement of his
second trial, not only constitutes a waiver of that issue on
appeal, but demonstrates the necessity of prohibiting a
defendant from attempting to rely upon rulings from a prior
aborted trial. In any event, we have already addressed the
claim that Ring affects our prior consideration of
constitutional issues in death penalty cases and have determined
that “nothing . . . in Ring suggests that the Court intended to
revisit broader issues of due process protections afforded in
the penalty determination phase of all capital murder trials.”
Powell v. Commonwealth, 267 Va. 107, 137, 590 S.E.2d 537, 555
(2004).
55
Code § 17.1-313(C)(1) requires that we determine whether
the jury imposed the sentence of death under the influence of
passion, prejudice, or any other arbitrary factor. Elliott
makes no particularized argument that the jury’s verdict was not
the product of a reasoned and dispassionate deliberation. Nor
does our review of the record in this case disclose that the
jury failed to give fair consideration to all the evidence both
in favor and in mitigation of the death sentence, or was
otherwise improperly influenced in favor of imposing the death
penalty. Accordingly, we hold that the sentence of death was
not imposed under passion, prejudice, or any arbitrary factor.
With respect to the consideration “[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), Elliott contends that “[t]he Commonwealth
has never imposed such a sentence upon a man with as long and
accomplished a record of service to his country as” Elliott. He
further contends that “this case lacks the characteristics that
normally distinguish the cases in which the death penalty is
imposed based upon multiple homicides and vileness from those in
which juries choose to impose life imprisonment.”
During the penalty determination phase of the trial, the
jury heard testimony recounting Elliott’s service as a soldier
56
and non-commissioned officer in, and later as a civilian
employee of, the United States Army. The jury also heard
evidence throughout the course of the trial that Elliott
betrayed his wife of twenty-three years, pursuing a former
prostitute and squandering hundreds of thousands of dollars on
this illicit relationship. The evidence showed that Elliott
murdered two innocent people in a brutal and premeditated
manner, showing no remorse for and purposefully seeking to
conceal his crimes. The murder of Thrall was particularly
heinous in that it appears she was a victim of opportunity,
killed while her young children were nearby and simply because
she was present in the home with Finch or perhaps because she
saw and could have identified Elliott.
The jury could reasonably have concluded from Elliott’s
actions in his secret relationship with Gragg that he had
renounced the values he purported to support and follow in his
public life. Faced with the incongruent reality of Elliott’s
two lives, the jury was well within its province to determine
that the mitigating value of Elliott’s years of service in the
armed forces did not outweigh his culpability for the death of
Thrall under the circumstances of that murder.
Because of the statutory directive that we compare this
case with “similar cases,” we have focused on cases in which an
57
individual was murdered as part of the same act or transaction
as another killing and the death penalty was imposed upon a
finding of the vileness aggravating factor. However, our
proportionality review includes all capital murder cases
presented to this Court for review and is not limited to
selected cases. Even though no two capital murder cases are
identical, we are confident that, given the heinousness
associated with the murder of Thrall, the sentence of death
imposed on Elliott is neither excessive nor disproportionate to
sentences generally imposed by other sentencing bodies in this
Commonwealth for crimes of a similar nature considering the
crime and this defendant. See, e.g., Hudson v. Commonwealth,
267 Va. 29, 590 S.E.2d 362 (2004); Bailey v. Commonwealth, 259
Va. 723, 529 S.E.2d 570, cert. denied, 531 U.S. 995 (2000); Kasi
v. Commonwealth, 256 Va. 407, 508 S.E.2d 57 (1998), cert.
denied, 527 U.S. 1038 (1999); Woodfin v. Commonwealth, 236 Va.
89, 372 S.E.2d 377 (1988), cert. denied, 490 U.S. 1009 (1989).
In his twentieth assignment of error, Elliott contends that
“[t]he trial court erred in sentencing appellant to death.”
Elliott purports to relate this assignment of error to the
questions presented addressing his challenges to the
constitutionality of the vileness aggravating factor and the
mandatory review of his death sentence. Within the sections of
58
his brief addressing those questions presented, we can discern
no particularized argument that the trial court erred in
imposing the sentence of death in accord with the jury’s
verdict. Thus, we conclude that this assignment of error is
merely an assertion of general or cumulative error in the
conduct of the trial. We do not consider such generalized
assertions of error.
CONCLUSION
Having found no error below and perceiving no other reason
to commute or set aside the sentence of death, we will affirm
the judgment of the trial court.
Affirmed.
59