Jackson v. Commonwealth

Present: All the Justices

KENT JERMAINE JACKSON

v. Record Nos. 030749 & 030750 OPINION BY
JUSTICE ELIZABETH B. LACY
October 31, 2003
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Verbena M. Askew, Judge

In this appeal, we review the capital murder conviction

and death penalty imposed on Kent Jermaine Jackson, along with

his convictions of robbery, felony stabbing, and statutory

burglary.

FACTS

In accord with established principles of appellate

review, we recite the facts in the light most favorable to the

Commonwealth, the party prevailing below. Commonwealth v.

Bower, 264 Va. 41, 43, 563 S.E.2d 736, 737 (2002).

On April 18, 2000, the body of Beulah Mae Kaiser, 79

years of age, was found in her apartment. According to the

medical examiner, Mrs. Kaiser died from a combination of a

stab wound to her jugular vein, a fractured skull, and

asphyxia caused by blockage of her airway by her tongue. Any

one of these injuries could have been fatal. In addition to

these injuries, Mrs. Kaiser suffered two black eyes, a broken

nose, and multiple abrasions, lacerations, and bruises. She

had five stab wounds to her head and neck, including the wound
to her jugular vein. The medical examiner also testified that

Mrs. Kaiser had been anally sodomized with her walking cane

and that the cane then had been driven into her mouth with

such violence that it knocked out most of her teeth, tore her

tongue and forced it into her airway, fractured her jaw, and

penetrated the left side of her face.

When Mrs. Kaiser's body was found, her apartment was in

disarray. Personal items were strewn throughout the

apartment, blood spatters were on the surfaces of the

apartment, and the contents of Mrs. Kaiser's purse had been

dumped on the floor. The police were unable, however, to find

a weapon or any fingerprints of value.

The crime went unsolved for over 16 months until DNA

testing of saliva on a cigarette butt found in the apartment

implicated an individual named Cary Gaskins. An interview

with Gaskins led the police to Joseph M. Dorsett and Jackson,

who had been roommates in an apartment across the hall from

Mrs. Kaiser's apartment at the time of her death. Following

an interview with Dorsett, Newport News police arrested

Dorsett, charging him with Mrs. Kaiser's murder, and obtained

a warrant for Jackson's arrest.

Police arrested Jackson at a girlfriend's home in King

George County around 4:00 a.m. on August 29, 2001. During an

interview with Newport News police detectives at the King

2
George County jail that afternoon, Jackson confessed to the

murder of Mrs. Kaiser.

PROCEEDINGS

On January 14, 2002, Jackson was indicted by a Newport

News grand jury for the capital murder of Beulah Mae Kaiser in

the commission of a robbery or attempted robbery, robbery,

felony stabbing, statutory burglary, and object sexual

penetration, in violation of Code §§ 18.2-31, 18.2-58, 18.2-

53, 18.2-90, and 18.2-67.2, respectively.

Prior to trial, Jackson filed motions seeking a change of

venue, suppression of his confession, a bill of particulars,

and additional peremptory strikes. The trial court denied

these motions and rejected Jackson's arguments that Virginia's

capital murder statutes are unconstitutional. Following a

six-day trial, a jury convicted Jackson of all charges except

object sexual penetration. In a subsequent sentencing

proceeding, the jury found the aggravating factor of vileness

and fixed a sentence of death for the capital murder

conviction and fixed sentences totaling life imprisonment plus

25 years and a $100,000 fine for the remaining convictions.

During a post-verdict hearing, the trial court considered the

pre-sentence report, further evidence presented by Jackson,

and the arguments of counsel. In its final judgment, the

trial court imposed the sentences fixed by the jury.

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 We have consolidated the automatic review of Jackson's

death sentence with his appeal of the capital murder

conviction in Record No. 030749 and have given them priority

on the docket. Code §§ 17.1-313(A), (F), and (G). We have

also certified Jackson's appeal of his non-capital convictions

from the Court of Appeals of Virginia, Record No. 030750, and

have consolidated the two records for consideration.

ISSUES PREVIOUSLY DECIDED

Jackson raises fifteen assignments of error, four of

which contain arguments that this Court has rejected in

previous cases. Since Jackson presents no new arguments on

these questions, we adhere to our previous holdings and affirm

the rulings of the trial court:

(1) denying the defendant's motion for a bill of

particulars seeking a narrowing construction of the

vileness aggravator and identification of the evidence on

which the Commonwealth intended to rely when seeking the

death penalty. See Green v. Commonwealth, 266 Va. 81,

107, 580 S.E.2d 834, 849 (2003); Goins v. Commonwealth,

251 Va. 442, 454, 470 S.E.2d 114, 123 (1996); Strickler

v. Commonwealth, 241 Va. 482, 490, 404 S.E.2d 227, 233

(1991).

(2) refusing to declare Virginia's capital murder

statutes unconstitutional because (a) they do not

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adequately instruct the jury on the weight it should

assign to aggravating and mitigating factors, Satcher v.

Commonwealth, 244 Va. 220, 228, 421 S.E.2d 821, 826

(1992), (b) do not require aggravating factors to

outweigh mitigating factors beyond a reasonable doubt,

Mickens v. Commonwealth, 247 Va. 395, 403, 442 S.E.2d

678, 684 (1994), vacated and remanded on other grounds,

513 U.S. 922 (1994); (c) are unconstitutionally vague in

defining "vileness" and "future dangerousness," Id.; (d)

allow evidence of unadjudicated criminal conduct in the

sentencing phase, Satcher, 244 Va. at 228, 421 S.E.2d at

826; (e) constitute cruel and unusual punishment, Spencer

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

777-78 (1989), and are contrary to "evolving standards of

decency" under Trop v. Dulles, 356 U.S. 86, 100 (1958),

Satcher, 244 Va. at 228, 412 S.E.2d at 826; (f) do not

require the court to set aside the death penalty on

showing of good cause, Breard v. Commonwealth, 248 Va.

68, 76, 445 S.E.2d 670, 675-76 (1994); (g) allow the

court to consider hearsay evidence in its post-sentencing

report, O'Dell v. Commonwealth, 234 Va. 672, 701-02, 364

S.E.2d 491, 507-08 (1988); and (h) fail to provide

meaningful appellate review, Satcher, 244 Va. at 228, 421

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 S.E.2d at 826. See generally Breard, 248 Va. at 75-76,

445 S.E.2d at 675.

(3) denying the defendant's motion for additional

peremptory challenges. See Green, 266 Va. at 107, 580

S.E.2d at 849; Spencer, 240 Va. at 84, 393 S.E.2d at 613;

Buchanan v. Commonwealth, 238 Va. 389, 405, 384 S.E.2d

757, 767 (1989); O'Dell, 234 Va. at 690, 364 S.E.2d at

501.

(4) refusing the defendant's request to use a juror

questionnaire. See Green, 266 Va. at 95-96, 580 S.E.2d

at 842-43; Strickler, 241 Va. at 492-93, 404 S.E.2d at

234.

ISSUES NOT PRESERVED

A. Change of Venue

Jackson, in his second assignment of error, charges that

the trial court erroneously denied his motion for change of

venue. The Commonwealth argues that Jackson has waived this

assignment of error because he neither renewed the motion at

the time the jury was selected nor objected to the seating of

the panel.

In Green, we stated that when a change of venue motion is

taken under advisement or continued until the jury is

empaneled, it is incumbent on the party seeking a change of

venue to renew the motion or otherwise bring it to the court's

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attention. Green, 266 Va. at 94-95, 580 S.E.2d at 842.

Failure to do so implies acquiescence in the jury panel and is

tantamount to waiver of the motion for change of venue. Id.

In this case, the trial court denied Jackson's motion for

a change of venue in a pre-trial hearing but stated that the

motion was "a continuing motion as we go through this

process." Jackson did not seek a ruling on this "continuing

motion," did not bring the matter to the trial court's

attention, and made no objection based on venue before the

trial court empaneled the jury. Accordingly, Jackson has

waived this assignment of error, and we will not address his

claims that the trial court erred by refusing to grant his

motion for a change of venue. Id.; Rule 5:25.

B. Admission of Photographs

Jackson's eighth assignment of error challenges the trial

court's refusal to limit the presentation of crime scene and

autopsy photographs of the decedent. Jackson argues here that

the gruesome content of the photographs served merely to shock

and inflame the jury, and, because Jackson had stipulated to

an autopsy report and diagrams indicating the manner of Mrs.

Kaiser's death, the fourteen photographs introduced by the

Commonwealth were cumulative and had no probative value. The

Commonwealth argues that Jackson has waived this claim because

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he did not object to the admission of the photographs at

trial.

In a pre-trial motion, Jackson sought to limit the number

of photographs depicting the condition of the decedent that

could be introduced at trial, arguing that the photographs

were cumulative. The trial court agreed that it would not

admit cumulative evidence but denied Jackson's motion as

premature because the Commonwealth had not yet determined

which photographs it would introduce at trial. When the

Commonwealth introduced all fourteen photographs as evidence,

Jackson did not object. Jackson's failure to renew his

objection at that time precludes him from raising this issue

on appeal. Rule 5:25.

C. Trial Court's Proportionality Review

Jackson asserts that the trial court erred in not

examining whether the jury's verdict imposing the penalty of

death was based on passion or prejudice and whether the

punishment was disproportionate in this case pursuant to Code

§ 17.1-313. While we note that Code § 17.1-313 does not

require such a review by the trial court, Green, 266 Va. at

107, 580 S.E.2d at 849, Jackson neither asked the trial court

to conduct such a review nor addressed such review by the

trial court on brief or in oral argument in this Court.

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Accordingly, Jackson has waived this assignment of error.

Rule 5:25.

PRE-TRIAL

A. Motion to Suppress

In his first assignment of error, Jackson asserts that

the trial court erred in failing to suppress the confession

Jackson made to the Newport News police officers while

detained in the King George County Jail. Jackson asserts that

the confession should have been suppressed because he did not

knowingly and intelligently waive his constitutional rights to

counsel and against self-incrimination and because the

confession itself was not given voluntarily.

Longstanding principles of federal constitutional law

require that a suspect be informed of his constitutional

rights to the assistance of counsel and against self-

incrimination. Miranda v. Arizona, 384 U.S. 436, 471 (1966).

These rights can be waived by the suspect if the waiver is

made knowingly and intelligently. Id. at 475. The

Commonwealth bears the burden of showing a knowing and

intelligent waiver. Id. Whether the waiver was made

knowingly and intelligently is a question of fact that will

not be set aside on appeal unless plainly wrong. Harrison v.

Commonwealth, 244 Va. 576, 581, 423 S.E.2d 160, 163 (1992).

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 At the suppression hearing, Detective Larry P. Rilee

testified that he informed Jackson of his Miranda rights when

he began questioning Jackson at the King George County Jail

around 2:50 p.m. on August 29 and that Jackson orally waived

those rights at that time. Detective Rilee began taping the

interrogation about 25 minutes later. The transcript of the

taped portion of the interrogation recites that Detective

Rilee stated, "We've advised you of your Miranda Rights, you

understood those is that correct?" Jackson responded, "That's

correct." Following this exchange, Jackson made a statement

confessing to the murder of Mrs. Kaiser.

Jackson asserts that because Detective Rilee did not use

a written waiver of rights form and did not repeat the

elements of the Miranda warning during the taped portion of

the interrogation, the record is insufficient to show that

Jackson intelligently and knowingly waived his Miranda rights.

We disagree.

A valid waiver of Miranda rights does not require the

waiver to be in writing. Harrison, 244 Va. at 583, 423 S.E.2d

at 163. Detective Rilee's testimony and the transcript of the

interrogation support the trial court's factual determination

that Jackson was informed of his Miranda rights and that he

knowingly and intelligently waived those rights.

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 Jackson also contends that his confession was not

voluntary because it was not the product of his free and

unconstrained will. Whether a confession was voluntary is a

legal question to be resolved by the court, considering all

the circumstances. Roach v. Commonwealth, 251 Va. 324, 341,

468 S.E.2d 98, 108 (1996).

Jackson maintains that the officers conducting the

interrogation overbore his will. The police officers,

according to Jackson, applied psychological pressure and

engaged in trickery, and lied to him about the evidence

connecting him with Mrs. Kaiser's death. These actions along

with his conditions of confinement resulted in a confession

that, he argues, he did not voluntarily make. We disagree

with Jackson.

Jackson recites a number of factors that, he argues,

rendered his statement involuntary. Prior to and during his

interrogation, he was tired, hungry, and kept in a "freezing"

cell. According to his court-appointed expert psychologist,

Dr. Stephen C. Ganderson, the verbal performance component of

Jackson's IQ was below average although his overall IQ was in

the normal range. Jackson further maintains that he was told

that if he made a statement he could call his mother, and he

stated that the promise was the reason he gave the statement

confessing to the murder.

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 We agree with the trial court that neither the expert

testimony nor the adverse conditions Jackson alleged

constituted sufficient evidence that Jackson suffered from an

impaired ability to understand what he was doing or saying, or

that his ability to decide whether to give a statement of his

own free will was overcome. As noted by the trial court, the

degree of detail in Jackson's confession belies his assertion

that he only gave the statement to secure the right to

telephone his mother.

The interrogation methods used by the officers in this

case do not render this confession involuntary per se. Smith

v. Commonwealth, 219 Va. 455, 470, 248 S.E.2d 135, 144-45

(1978). Furthermore, the record shows that Jackson did not

cite police trickery or deceit as a ground for suppressing his

confession in the trial court. Jackson has not preserved that

argument for consideration here. Rule 5:25.

Based on our review of the record, we hold that Jackson

confessed voluntarily and that the trial court did not err in

concluding that Jackson knowingly and intelligently waived his

Miranda rights.

B. Polling Jurors

In a pre-trial motion, Jackson asked that, if the jury

imposed the death sentence based on the aggravating factor of

vileness, the jury be polled as to "which statutory element(s)

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established vileness, specifying at the time of polling one or

more of torture, depravity of mind or aggravated battery." To

that end, Jackson requested jury instructions and a verdict

form that required unanimity on one or more vileness elements.

Relying on Richardson v. United States, 526 U.S. 813 (1999),

Jackson argues that when imposing the death sentence, due

process requires unanimity not only as to the aggravating

factor of vileness but also to one or more of its composite

elements.

This Court has rejected the proposition that the jury

must identify the element or elements of the vileness factor

upon which it based its decision. Clark v. Commonwealth, 220

Va. 201, 213, 257 S.E.2d 784, 791 (1979). The Supreme Court's

decision in Richardson does not require us to revisit our

decision in Clark.

Richardson involved a prosecution for engaging in a

continuing criminal enterprise. As relevant here, conviction

required proof that the defendant committed a specific federal

offense and that the offense was part of a "continuing series"

of offenses undertaken by the defendant in concert with five

or more other persons. The trial court instructed the jury

that it had to find unanimously that the defendant committed

at least three federal narcotics offenses but did not have to

agree as to the particular three offenses. The Supreme Court

13
reversed, holding that the several violations required for

conviction were an element of the offense and thus the jury

had to agree on the same three violations. Richardson, 526

U.S. at 819-20, 824.

The Supreme Court explained in Richardson that, for

example, the jury must unanimously find force as an element of

the crime of robbery, but whether the force is created by the

use of a gun or a knife is not an element of the crime and

therefore does not require jury unanimity. Id. at 817. In

this case, the element the jury was required to find

unanimously to impose the death sentence was the aggravating

factor of vileness, which requires the defendant's actions be

"outrageously or wantonly vile, horrible or inhuman." Code

§ 19.2-264.2. Depravity of mind, aggravated battery, and

torture are not discrete elements of vileness that would

require separate proof but rather are "several possible sets

of underlying facts [that] make up [the] particular element."

Richardson, 526 U.S. at 817. Neither Clark nor Richardson,

therefore, requires juror unanimity on these points.

Accordingly, we reject this assignment of error.

GUILT PHASE

A. Juror Disqualification

Jackson charges that the trial court erred in not

striking Sandra Peiffer from the jury panel for cause.

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 Absent manifest error, we will not disturb the trial

court's judgment whether to strike a potential juror for

cause. Green, 266 Va. at 98, 580 S.E.2d at 844; Clagett v.

Commonwealth, 252 Va. 79, 90, 472 S.E.2d 263, 269 (1996). The

law does not require that a juror be ignorant of all facts,

only that jurors be impartial. Breeden v. Commonwealth, 217

Va. 297, 300, 227 S.E.2d 734, 736 (1976).

During voir dire, Peiffer volunteered that she had read

newspaper accounts about the case and remembered that the

person charged with the crime had made some comments to the

newspaper earlier. Peiffer did not remember the name of the

person. She went on to say, however, that she had not formed

an opinion on the defendant's guilt and repeated that she

would decide the case based on the evidence produced at trial.

Because the person interviewed by the media was Dorsett

and not Jackson, Jackson maintained that Peiffer could not be

impartial and would taint the jury if she told them her

recollections of the newspaper account. The trial court

refused to strike Peiffer for cause, finding that the juror

was "very, very emphatic" about her ability to decide the case

solely on the law and on the evidence.

Peiffer's statements, taken as a whole, demonstrate that

she would be impartial in deciding the case. We find no error

in the trial court's decision not to strike Peiffer for cause.

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 B. Batson Challenge

In Batson v. Kentucky, 476 U.S. 79, 89 (1986), the United

States Supreme Court held that excluding a potential juror

solely on the basis of the juror's race is purposeful

discrimination and a violation of the Equal Protection Clause

of the Fourteenth Amendment of the United States Constitution.

In his tenth assignment of error, Jackson claims that the

trial court erred in rejecting his claim that the Commonwealth

violated the rule in Batson because the Commonwealth exercised

all five of its peremptory strikes against African-Americans.

When a defendant raises a challenge based on Batson, he

must make a prima facie showing that the peremptory strike was

made on racial grounds. At that point, the burden shifts to

the prosecution to produce race-neutral explanations for

striking the juror. The defendant may then provide reasons

why the prosecution's explanations were pretextual and the

strikes were discriminatory regardless of the prosecution's

stated explanations. Whether the defendant has carried his

burden of proving purposeful discrimination in the selection

of the jury is then a matter to be decided by the trial court.

The trial court's findings will be reversed only if they are

clearly erroneous. Buck v. Commonwealth, 247 Va. 449, 450-51,

443 S.E.2d 414, 415 (1994).

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 In this case, the Commonwealth offered the following

explanations for the exercise of its peremptory strikes

against five African-Americans:

(1) The Commonwealth struck Charles Blanco because
he was previously represented by one of the defense
attorneys and would be more likely to believe that
attorney. Mr. Blanco also was concerned about the
impact of the trial on his responsibility to take
care of his children who had special needs.

(2) Amy Leggett was struck because she answered
that she did not believe in the death penalty and
even though she said she could apply it, "she would
have a very, very hard time in applying the laws and
evidence."

(3) Vento Carter, according to the Commonwealth,
changed his position throughout his voir dire,
stating initially he would impose a higher standard
of proof on the Commonwealth but then stating that
he could nevertheless listen to the instructions of
the court on the Commonwealth's burden. Carter also
changed his position with regard to the necessity of
the defendant testifying. The Commonwealth stated
it had no "faith" in Carter's final answers.

(4) The Commonwealth struck Geraldine Thomas
because she stated that she would have to have "no
doubt" as to the guilt of the defendant before
imposing the death penalty regardless of what the
court said.

(5) Christopher Sledge testified that he would hold
the Commonwealth to a higher standard even though he
supposed he could follow the court's instructions.
Sledge also stated that he "didn't like" the death
penalty.

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The trial court concluded that these explanations were race-

neutral and rejected Jackson's Batson challenge. 1

On appellate review, the trial court's conclusion

regarding whether reasons given for the strikes are race-

neutral is entitled to great deference, and that determination

will not be reversed on appeal unless it is clearly erroneous.

Wright v. Commonwealth, 245 Va. 177, 186, 427 S.E.2d 379, 386

(1993), vacated and remanded on other grounds, 572 U.S. 1217

(1994).

The trial court has the unique opportunity to observe the

demeanor and credibility of potential jurors during voir dire,

and the record supports the Commonwealth's characterization of

the statements made by the potential jurors in question.

Based on our review of the record, we conclude that the trial

court's ruling on Jackson's Batson challenge was not clearly

erroneous.

C. Question Regarding Failure to Cooperate

Jackson complains that the trial court improperly allowed

the Commonwealth to cross-examine his court-appointed DNA

expert, Shawn Weiss, regarding the witness' refusal to meet

with the Commonwealth's DNA expert.

1
Jackson did not assert that these answers were pre-
textual.

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 In his direct testimony, Weiss testified that he did not

conduct independent testing of the DNA samples but questioned

the Commonwealth's testing results in a number of areas.

During cross-examination, Weiss acknowledged that the

Commonwealth had attempted to set up a meeting between Weiss

and the Commonwealth's DNA experts to "talk about" and "look

at each other's calculations." The Commonwealth then asked

Weiss why he had not agreed to the meeting. Weiss replied

that he was "under the direction of the person that hired

[him]." The Commonwealth went on to ask if Weiss knew that

the Commonwealth had "just opened everything up, showed it, no

requests having been made." At this point Jackson objected,

saying that the Commonwealth's questioning implied that

"somehow we weren't following the rules." The trial court

overruled the objection.

Jackson argues here that the Commonwealth's questioning

misled the jury because it implied that Jackson did not adhere

to the rules of discovery. 2 The Commonwealth responds, that by

asking the reasons for Weiss' refusal to meet with the

Commonwealth's DNA experts, it was exploring Weiss'

credibility, potential bias and the basis of his opinions.

2
Jackson also asserts that the exchange violated his
constitutional rights of due process. He did not make this
argument in the trial court and we do not consider it here.
Rule 5:25.

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 Cross-examination of a witness to establish or explore

the bias of that witness based on a relationship to a party in

the case is proper. Goins v. Commonwealth, 251 Va. 442, 465,

470 S.E.2d 114, 129 (1996). Furthermore, limitation of cross-

examination is within the trial court's discretion. Norfolk &

Western Railway Co. v. Sonney, 236 Va. 482, 488, 374 S.E.2d

71, 74 (1988). In this case Weiss' statement that he refused

to meet with the Commonwealth's DNA experts because of his

relationship to the defense could have reflected bias.

Accordingly, we cannot say that the trial court erred in

overruling Jackson's objection to the Commonwealth's question.

D. Expert Testimony on False Confessions

Jackson argues in his fourteenth assignment of error that

the trial court incorrectly barred Jackson from asking his

expert witness, Dr. Steven C. Ganderson, "a hypothetical

question about false confessions." 3 While the trial court was

willing to permit Dr. Ganderson to testify generally regarding

circumstances that could lead to false confessions, it forbade

Dr. Ganderson from testifying about the truth or falsity of

Jackson's statement. We find no error in the trial court's

ruling.

3
Jackson does not isolate any specific question in his
brief.

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 The physical and psychological environment surrounding a

confession can be very relevant in determining whether a

confession is reliable, and expert witnesses may testify "to a

witness's or defendant's mental disorder and the hypothetical

effect of that disorder." Pritchett v. Commonwealth, 263 Va.

182, 187, 557 S.E.2d 205, 208 (2002). Expert witnesses may

not, however, render an opinion on the defendant's veracity or

reliability of a confession because whether a confession is

reliable is a matter in the jury's exclusive province. Id.

During voir dire, the trial court accepted Dr. Ganderson

as an expert on psychology and sexual-psychological issues.

Jackson elicited testimony from the doctor on the factors that

contribute to "transference," a phenomenon in which a subject

becomes more prone to suggestion and may say things which are

untrue in an attempt to gain approval from an authority

figure. Dr. Ganderson also testified about antecedents and

objective goals of a defendant that could affect the

reliability of a defendant's statements. While the trial

court permitted this questioning, it sustained the

Commonwealth's objection when Dr. Ganderson questioned the

veracity of Jackson's statement based on transference theory.

The trial court, relying on our decision in Pritchett, ruled

that Dr. Ganderson could testify regarding the circumstances

surrounding Jackson's confession but not about its truth:

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 Now, I still think in terms out of what he can't
say, that's a false confession. I think the jury
still has to make those kinds of conclusions. Those
are factual conclusions, but he can testify about
the surroundings and what he believes the impact has
on this defendant with his mental capacity as well
as the surroundings of the circumstances out of
which the confession was taken.

There is no error in this holding.

E. Negative Evidence of Reputation

Jackson asserts that the trial court erred in "preventing

Jackson from presenting certain so-called 'negative' evidence

of good character." Jackson refers specifically to the

testimony of two individuals he called as character witnesses.

Jackson asked the witnesses if they were aware of or had heard

that Jackson had a reputation in the community for being

violent. The Commonwealth objected, stating that before

asking a question of this sort, Jackson had to establish that

the witness was aware of Jackson's reputation in the

community. The trial court sustained the objections.

This assignment of error is without merit. Jackson was

not prohibited from presenting negative evidence of good

character. Negative evidence of good character is based on

the theory that a person has a good reputation if that

reputation has not been questioned. Zirkle v. Commonwealth,

189 Va. 862, 871-72, 55 S.E.2d 24, 29-30 (1949). It is

admissible, as is other reputation evidence, if the proper

22
foundation is established. See Barlow v. Commonwealth, 224

Va. 338, 340-41, 297 S.E.2d 645, 646 (1982). Thus, a witness

must be aware of the party's reputation in the community

before he may testify as to the lack of any reputation for a

particular characteristic.

Jackson did not establish that either witness had

knowledge of Jackson's reputation in the community before

asking the type of question recited above. Accordingly, the

trial court not only was correct in sustaining the

Commonwealth's objection to the questions, but nothing in the

record shows that Jackson was prevented from introducing

negative evidence of reputation. In fact, the record shows

that in at least one instance, Jackson proceeded to establish

that the witness had the requisite knowledge of Jackson's

reputation in the community and then testified that he never

"heard anything from anybody of [Jackson] doing any wrongdoing

to anybody." We find no error in the ruling of the trial

court.

F. Motion to Strike

Jackson asserts that the trial court erred in denying his

motion to strike the Commonwealth's evidence. He argues that

the evidence was insufficient to support his convictions

because his confession was not reliable, the forensic testing

23
was inadequate, and no other evidence connected him to the

crime scene.

In reviewing the record to determine whether the evidence

was sufficient to support the convictions, we consider the

evidence in the light most favorable to the Commonwealth and

give the Commonwealth all inferences fairly deducible from

that evidence. Burns v. Commonwealth, 261 Va. 307, 313-14,

541 S.E.2d 872, 878 (2001).

Jackson argues that his confession was not reliable for

two reasons: his will was overborne by the deception of the

officers and the confession was false. We have already held

that Jackson's will was not overborne, and, therefore, we

reject that argument as a basis for finding his confession

unreliable.

Jackson also bases his assertion that his confession was

false on the alleged deception of the officers during his

interrogation. Jackson does not offer, and we cannot find,

any rationale or evidence supporting the conclusion that the

tactics utilized by the officers during his interrogation

caused Jackson's confession to be false.

The forensic testing was inadequate, according to

Jackson, because the DNA testing of the blood mixture on the

toe of a sock found at the crime scene involved only eight

loci. Jackson's DNA loci matched six of the eight loci. The

24
standard procedure of the state laboratory is to test 13 or 16

loci. Shawn Weiss, Jackson's expert in DNA testing, testified

that, had 13 or 16 loci been tested, there was a "possibility"

that other suspects may have had more loci matches than

Jackson.

Jackson's criticism of the Commonwealth's forensic

testing does not change the fact that some of the loci matched

his DNA. Under these circumstances, as his own expert

testified, "Kent Jackson cannot be excluded as a minor

contributor."

Finally, the lack of other forensic evidence connecting

Jackson to the crime scene does not support the conclusion

that the evidence was insufficient to prove Jackson's guilt

beyond a reasonable doubt. Jackson's detailed confession,

corroborated by evidence of the injuries Mrs. Kaiser suffered,

was sufficient to establish his guilt beyond a reasonable

doubt. The trial court did not err in denying Jackson's

motion to strike. Clozza v. Commonwealth, 228 Va. 124, 133,

321 S.E.2d 273, 279 (1984).

STATUTORY REVIEW

Under Code § 17.1-313(C)(1), we must inquire whether

passion, prejudice, or any other arbitrary factor affected the

sentencing decision. Jackson contends that "numerous horrific

photographs of the decendant" inflamed the jury and improperly

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influenced its sentencing decision. Jackson's argument is

not, and cannot be, that allowing the pictures to be seen by

the jury was error. As discussed above, he did not object to

their introduction during the guilt phase of the trial. Thus,

whether the pictures were properly or improperly admitted is

not the issue before us in this statutory review. We do

however, consider the potential impact these pictures may have

had on the decision to impose the death sentence. Emmett v.

Commonwealth, 264 Va. 364, 371, 569 S.E.2d 39, 44 (2002).

The pictures at issue, while gruesome, accurately

depicted the condition of the victim and were relevant to the

"motive, intent, method, malice, premeditation and the

atrociousness of the crime." Id. at 372, 569 S.E.2d at 45.

In this context, the jury was entitled to use the photographs

to make an informed decision on the defendant's guilt and the

appropriate sentence thereafter. The record contains ample

evidence supporting the imposition of the death sentence, and

nothing in the record suggests that passion or prejudice

played any part in that decision.

Code § 17.1-313(C)(2) requires us to determine whether

the sentence in this case is "excessive or disproportionate to

the penalty imposed in similar cases, considering both the

crime and the defendant." Our examination seeks "to reach a

reasoned judgment regarding what cases justify the imposition

26
of the death penalty." Orbe v. Commonwealth, 258 Va. 390,

405, 519 S.E.2d 808, 817 (1999).

We have examined the capital murder cases where robbery

was the predicate offense and where the Commonwealth sought

the death penalty based on the aggravating factor of vileness.

Our review encompassed both cases where the jury fixed the

death penalty and where it fixed life imprisonment. Based on

that review, we find that defendant's sentence was not

excessive or disproportionate to sentences imposed in capital

murder cases similar to the instant case. See Bennett v.

Commonwealth, 236 Va. 448, 374 S.E.2d 303 (1988) (defendant

bound, beat, and stabbed victim); Boggs v. Commonwealth, 229

Va. 501, 331 S.E.2d 407 (1985) (defendant beat his 87-year-old

neighbor with a piece of steel and then stabbed her); Bunch v.

Commonwealth, 225 Va. 423, 304 S.E.2d 271 (1983)(defendant

shot his lover in the head, ransacked her house, and hung her

from a doorknob); LeVasseur v. Commonwealth, 225 Va. 564, 304

S.E.2d 644 (1983) (defendant beat victim and stabbed her with

a carving fork and ice pick); Whitley v. Commonwealth, 223 Va.

66, 286 S.E.2d 162 (1982) (defendant strangled victim, cut her

throat, and inserted umbrellas into her anus and vagina post-

mortem); Coppola v. Commonwealth, 220 Va. 243, 257 S.E.2d 797

(1979) (defendant entered house with co-conspirators, robbed

victim, and then choked and beat her to death).

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 At oral argument, Jackson's counsel argued that the death

penalty should not be imposed in this case because Jackson

himself did not commit some of the more heinous acts involved

in the murder of Mrs. Kaiser, but rather primarily assumed the

role of a bystander and only stabbed Mrs. Kaiser with a knife.

Counsel asked this Court to set aside the death penalty and

impose a penalty of life pursuant to the provisions of Code

§ 17.1-313(D)(2).

We reject this request. Beulah Mae Kaiser suffered a

brutal, vicious, and painful death at Kent Jermaine Jackson's

hands. The record indicates that Jackson agreed to the plan

to enter Mrs. Kaiser's apartment and rob her and that he

kicked her and held her down while Dorsett punched, kicked,

and stabbed her. Jackson stabbed Mrs. Kaiser and he handed

Dorsett the cane that ultimately was shoved through her face.

For the above reasons we affirm the conviction for

capital murder and the imposition of the death penalty entered

in Case No. 030749 and affirm the non-capital convictions in

Case No. 030750.

Record No. 030749 - Affirmed.
Record No. 030750 - Affirmed.

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