Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Lemons, JJ., and Compton, S.J.
MICHAEL W. LENZ
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 002779 April 20, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Thomas H. Wood, Judge
In this appeal, we review the capital murder conviction
and sentence of death imposed upon Michael William Lenz.
I. Proceedings
The defendant was tried before a jury on an indictment
charging him with the capital murder of Brent H. Parker in
violation of Code § 18.2-31(3), "[t]he willful, deliberate,
and premeditated killing of any person by a prisoner confined
in a state or local correctional facility." At the time of
Parker's death, the defendant and Parker were inmates at the
Augusta Correctional Center. The jury found the defendant
guilty of capital murder.
In the penalty phase of the capital murder trial, the
jury fixed the defendant's punishment at death, finding that
he represented a continuing serious threat to society and that
his conduct in committing the offense was outrageously or
wantonly vile, horrible, or inhuman in that it involved
torture, depravity of mind, or aggravated battery to the
victim. See Code § 19.2-264.2. After considering a report
prepared by a probation officer pursuant to Code § 19.2-264.5,
the circuit court sentenced the defendant in accord with the
jury's verdict.
II. The Evidence Adduced During Guilt Phase
Applying familiar principles of appellate review, we will
recite the evidence presented at trial in the light most
favorable to the Commonwealth, the prevailing party in the
circuit court, and we will accord the Commonwealth the benefit
of all inferences fairly deducible from that evidence. Dowden
v. Commonwealth, 260 Va. 459, 461, 536 S.E.2d 437, 438 (2000).
During the early evening of January 16, 2000, the
defendant, Parker, Jeffrey Remington, and three other inmates
attended a meeting of a group referred to as the Ironwood
Kindred. The meeting occurred in Building J-5, which is a
part of the Augusta Correctional Center.
Earl Jones, a correctional officer, was assigned to
Building J-5 that evening. Jones permitted the six inmates to
enter a room where the meeting occurred. He closed the door,
which contained windows, and "secured" the room.
As Jones sat down at his post outside the meeting room
and began to "sort through" inmate passes that he had
collected, he "noticed a commotion." Jones "got on" his radio
and requested help from other correctional officers because he
observed a fight. As Jones walked toward the room where the
2
inmates were meeting, three of the inmates "ran out of the
room," and one of the inmates said, "[t]hey're stabbing him."
Jones went to the door and saw "Remington and Lenz
stabbing Parker." Parker was lying "on his back; on the
floor, between Remington and Lenz." Parker "was making a
feeble attempt to defend himself. . . . He had his hands up."
As Parker tried to use his hands to "block" the knives from
piercing his body, the defendant and Remington "took their
free hand[s]; pushed [Parker's] hands aside and then stabbed
him."
Jones opened the meeting room door and ordered the
defendant and Remington to stop stabbing Parker. Jones
testified, "[t]hey simply looked at me and went back to
stabbing him." Jones used his radio again to request help and
asked his fellow correctional officers to hurry because
Remington and the defendant "were trying to kill this guy."
Jones did not go into the room because Remington and the
defendant had knives, and Jones was unarmed.
Edward V. Houching, a correctional officer, responded to
Jones' request for assistance. When Houching arrived at the
meeting room, he saw the defendant and Remington stab Parker
between 10 to 15 times as Parker was lying on the floor in a
fetal position. Like Jones, Houching ordered the defendant
and Remington to stop, but they continued to stab Parker.
3
Parker was not "doing anything to defend himself," and the
defendant "was bent over, stabbing [Parker], over and over and
over."
Within a few seconds after Houching arrived at the
meeting room, two sergeants and correctional officer John
Edward Simmons also responded. Simmons saw the defendant stab
Parker six or seven times in an area that extended from
Parker's "underarm" to his waist as Parker was lying on his
side on the floor. Simmons also saw Remington stab Parker in
the shoulder and back. After a sufficient number of
correctional officers arrived at the meeting room, the
officers, some of whom were armed with mace, entered the room,
and Simmons told the defendant and Remington "to drop" their
knives. The defendant placed his knife on a table, and
Remington eventually surrendered his knife. The officers
placed handcuffs on the defendant and Remington and escorted
them from the area.
Rita K. Dietz, a registered nurse employed at the Augusta
Correctional Center, rendered emergency assistance to Parker.
When she walked into the meeting room to assist him, he was
"very pale" and "surrounded by blood." As she approached him,
she noticed that his shirt was soaked in blood. She ripped
his shirt off. She testified that "[e]very time I encountered
a couple of wounds, I encountered more wounds." She described
4
Parker's medical condition as "[v]ery critical." She placed
bandages on his wounds until she "ran out." She testified,
"at that point, the stretcher had arrived. So we took the
sheet off the stretcher . . . Parker was still alive, and he
helped roll onto the sheet. And we lifted the sheet up, which
the one wound, out of the left side, just poured like water;
like somebody had turned a faucet on, when we lifted him. And
we got him on the stretcher." Parker was transported by
ambulance to the Augusta Medical Center, where he died.
Gregory Price Wanger, the Assistant Chief Medical
Examiner for the Western District of Virginia, performed an
autopsy on Parker's body. Wanger testified that Parker had
sustained 68 stab wounds and one cut wound, all of which were
inflicted upon Parker when he was alive. Dr. Wanger explained
that a stab wound is "shorter on the surface than it is deep"
and "implies a thrusting motion[,]" whereas a cut wound "is
longer on the surface than it is deep" and "implies a
slashing-like motion." The stab wounds penetrated Parker's
chest, abdomen, back, left arm, and right forearm.
Dr. Wanger identified 40 stab wounds, "from the upper
part of [Parker's] chest down through the middle and center
part of the chest, and into the abdomen." These wounds all
contributed to his death. Parker's left lung and liver were
stabbed seven times each and the wounds produced serious
5
internal bleeding. The wounds to Parker's lungs would have
been fatal without the other wounds. Additionally, "the
wounds to the liver; by themselves, would have been fatal
without the other wounds to [his] body."
III. Evidence Adduced During Penalty Phase
During the penalty phase of the trial, the Commonwealth
presented evidence regarding the defendant's future
dangerousness and the vileness of his crime. The Commonwealth
introduced the defendant's prior convictions for possession of
a firearm after being convicted of a felony and breaking and
entering. The Commonwealth also relied upon evidence that it
presented in the guilt phase of the trial.
The defendant offered evidence in mitigation of his
offense. Martin Rogozinski, a psychologist employed at the
Augusta Correctional Center, testified that he spoke with the
defendant soon after Parker was murdered and that it was
Rogozinski's opinion that the defendant had murdered Parker
based "solely on a religious conviction."
The defendant testified during the penalty phase. He
stated that he was a practicing member of the "Asatru"
religion. According to the defendant, several inmates had
approached him and asked him to "construct" an Asatru group,
but his efforts to do so were "thwarted" by Parker.
6
The defendant testified that on the evening of the
murder, he planned to perform an Asatru ceremony in the
meeting room. The defendant recited poetic literature and
then asked Parker to approach an altar. The defendant
testified that "I called [Parker] up to the altar and I asked
— and I said to him, 'It's been a long, hard path between us.'
And [Parker] said, 'Yes, it is.' And I pulled the knife out
of my pocket. And I said, 'Are you trying to take it to the
next step?' And he said, 'Yes, I am.' And so I stabbed him."
The defendant admitted that he did not like Parker, that he
had planned to kill Parker that day, and that he had
threatened others in the meeting room with the knife.
The defendant presented the testimony of Gary Lee Bass,
the Chief of Operations at the Virginia Department of
Corrections and Jerry Wayne Armentrout, the Assistant Warden
of Operations at the Red Onion State Prison. Bass and
Armentrout testified about "prison life" and the security
conditions that the defendant would encounter at a Virginia
maximum security correctional facility if he were sentenced to
life imprisonment. Two officers assigned to the Augusta
Correctional Center testified that the defendant had never
given them any problems while he was under their supervision.
Patricia Daley Lenz, the defendant's mother, testified
about his childhood and family interaction. She stated that
7
the defendant's biological father was absent during much of
the defendant's early childhood and that the defendant's
adoptive father was very strict and favored his biological
child.
IV. Assignments of Error Waived
The defendant filed 18 separate assignments of error,
which he has reduced to 15 questions presented on appeal.
However, the defendant failed to brief three of his
assignments of error. Consequently, they are waived, and we
will not consider them on appeal. Kasi v. Commonwealth, 256
Va. 407, 413, 508 S.E.2d 57, 60 (1998), cert. denied, 527 U.S.
1038 (1999). The assignments of error waived are: "2. The
[c]ourt erred in its denial of defendant's motion for
discovery and inspection;" "9. The [c]ourt erred in its
denial of defendant's motion to prevent introduction of
defendant's prison record;" and "15. The [c]ourt erred in its
refusal to allow defendant to pose certain questions to jury
panel."
V. Issues Previously Decided
The defendant raised several issues on appeal which have
been decided adversely to his claims by our previous
decisions. We adhere to those rulings, and we will not
discuss them further. The issues previously resolved are:
8
(i) Whether Virginia's death penalty statutes provide
"meaningful guidance" to the jury. See Williams v.
Commonwealth, 248 Va. 528, 535, 450 S.E.2d 365, 371 (1994),
cert. denied, 515 U.S. 1161 (1995).
(ii) Whether Virginia's penalty phase instructions
adequately informed the jury regarding the concept of
mitigation. See Swann v. Commonwealth, 247 Va. 222, 228, 441
S.E.2d 195, 200, cert. denied, 513 U.S. 889 (1994).
(iii) Whether the use of unadjudicated conduct to prove
future dangerousness without proof of such conduct beyond a
reasonable doubt is constitutional. See Goins v.
Commonwealth, 251 Va. 442, 453, 470 S.E.2d 114, 122, cert.
denied, 519 U.S. 887 (1996).
(iv) Whether the "upon good cause shown" standard in
Code § 19.2-264.5 is constitutional. See Breard v.
Commonwealth, 248 Va. 68, 76, 445 S.E.2d 670, 676, cert.
denied, 513 U.S. 971 (1994).
(v) Whether Virginia's capital murder statute is
unconstitutional because it permits the court to consider
hearsay evidence in the post-sentence report. See Goins, 251
Va. at 453, 470 S.E.2d at 122.
(vi) Whether the appellate review procedures in Virginia
are constitutional. See Mickens v. Commonwealth, 252 Va. 315,
9
320, 487 S.E.2d 302, 305 (1996), cert. denied, 520 U.S. 1269
(1997).
(vii) Whether the circuit court erred in denying the
defendant's motion to mail a questionnaire to the potential
jury venire. See Goins, 251 Va. at 454, 470 S.E.2d at 122;
Strickler v. Commonwealth, 241 Va. 482, 489-90, 404 S.E.2d
227, 232, cert. denied, 502 U.S. 944 (1991).
(viii) Whether the circuit court erred in denying
defendant's motion to prohibit death qualification of jurors
and whether the circuit court erred in overruling defendant's
objection to the seating and the death qualification of the
jury. See Yeatts v. Commonwealth, 242 Va. 121, 127, 410
S.E.2d 254, 258 (1991); cert. denied, 503 U.S. 946 (1992);
Eaton v. Commonwealth, 240 Va. 236, 246, 397 S.E.2d 385, 391
(1990), cert. denied, 502 U.S. 824 (1991); Pruett v.
Commonwealth, 232 Va. 266, 277-78, 351 S.E.2d 1, 7-8 (1986),
cert. denied, 482 U.S. 931 (1987).
(ix) Whether the circuit court erred in denying
defendant's motion to examine investigators under oath. See
Burns v. Commonwealth, 261 Va. 307, 328, ___ S.E.2d ___, ___
(2001).
VI. Effective Assistance of Counsel
The defendant argues that he was "denied effective
assistance of [c]ounsel in that the Department of Corrections
10
housed [him] hours away from the site of the trial and of the
offices of his appointed attorneys. Because of these great
distances the defendant could only meet with his attorneys for
a short period of time. The time the defendant spent with his
attorneys was much less than the travel time to and from the
location."
We will not consider this claim on direct appeal. Claims
raising ineffective assistance of counsel must be asserted in
a habeas corpus proceeding and are not cognizable on direct
appeal. Johnson v. Commonwealth, 259 Va. 654, 675, 529 S.E.2d
769, 781, cert. denied, ___ U.S. ___, 121 S.Ct. 432 (2000);
Roach v. Commonwealth, 251 Va. 324, 335 n.4, 468 S.E.2d 98,
105 n.4, cert. denied, 519 U.S. 951 (1996).
VII. Pretrial Motions
A.
The defendant filed a pretrial motion and requested that
the circuit court appoint James Evans Aiken as an expert
witness on the subject of prison operations and
classifications. Aiken is a former warden and a former
commissioner of the Indiana Department of Corrections. The
defendant wanted to retain Aiken, at the Commonwealth's
expense, to assist the defendant with the presentation of
"prison life" evidence. The defendant, relying upon Ake v.
Oklahoma, 470 U.S. 68 (1985), and Husske v. Commonwealth, 252
11
Va. 203, 476 S.E.2d 920 (1996), argues that the due process
and equal protection clauses of the Fourteenth Amendment of
the federal constitution required the circuit court to
appoint, at the Commonwealth's expense, an expert to assist
him.
We disagree with the defendant. In Ake, the Supreme
Court considered whether an indigent defendant has a
constitutional right to a psychiatric examination and
psychiatric assistance necessary to prepare an effective
defense based upon his mental condition, when his sanity at
the time he committed the criminal offense was seriously in
question. The Supreme Court held that an indigent defendant
is entitled to the appointment of a psychiatrist to assist him
in his defense in such circumstances and explained its
rationale:
"We recognized long ago that mere access to the
courthouse doors does not by itself assure a proper
functioning of the adversary process, and that a
criminal trial is fundamentally unfair if the State
proceeds against an indigent defendant without
making certain that he has access to the raw
materials integral to the building of an effective
defense. Thus, while the Court has not held that a
State must purchase for the indigent defendant all
the assistance that his wealthier counterpart might
buy, see Ross v. Moffitt, 417 U.S. 600 (1974), it
has often reaffirmed that fundamental fairness
entitles indigent defendants to 'an adequate
opportunity to present their claims fairly within
the adversary system,' id., at 612. To implement
this principle, we have focused on identifying the
'basic tools of an adequate defense . . . ,' Britt
12
v. North Carolina, 404 U.S. 226, 227 (1971), and we
have required that such tools be provided to those
defendants who cannot afford to pay for them."
Ake, 470 U.S. at 77. The Supreme Court concluded that the due
process clause's guarantee of fundamental fairness is
implicated
"when [an indigent] defendant demonstrates to the
trial judge that his sanity at the time of the
offense is to be a significant factor at trial, [and
that in such circumstances] the State must, at a
minimum, assure the defendant access to a competent
psychiatrist who will conduct an appropriate
examination and assist in evaluation, preparation,
and presentation of the defense."
Id. at 83.
In Husske, we applied the Supreme Court's holding in Ake,
and we held that the Commonwealth of Virginia, upon request,
must provide indigent defendants with the basic tools of an
adequate defense and that in certain instances, these basic
tools may include the appointment of non-psychiatric experts.
Husske, 252 Va. at 211, 476 S.E.2d at 925. We stated:
"[A]n indigent defendant's constitutional right to
the appointment of an expert, at the Commonwealth's
expense, is not absolute. We hold that an indigent
defendant who seeks the appointment of an expert
witness, at the Commonwealth's expense, must
demonstrate that the subject which necessitates the
assistance of the expert is 'likely to be a
significant factor in his defense,' Ake, 470 U.S. at
82-83, and that he will be prejudiced by the lack of
expert assistance. Id. at 83. An indigent
defendant may satisfy this burden by demonstrating
that the services of an expert would materially
assist him in the preparation of his defense and
that the denial of such services would result in a
13
fundamentally unfair trial. . . . The indigent
defendant who seeks the appointment of an expert
must show a particularized need."
Id. We held that an indigent defendant who seeks the
appointment of an expert, at the Commonwealth's expense, must
show a particularized need for such services and that he will
be prejudiced by the lack of expert assistance. Id. at 213,
476 S.E.2d at 926. We stated that whether a defendant has
made the requisite showing of a particularized need lies
within the discretion of the circuit court. Id. at 212, 476
S.E.2d at 926.
Applying the aforementioned principles, we hold that the
circuit court did not abuse its discretion in denying the
defendant's request for the appointment of an expert at the
Commonwealth's expense on the subject of "prison life." The
circuit court's denial of the defendant's request did not
result in a fundamentally unfair trial, and we note that the
defendant, who adduced testimony from witnesses who testified
on the subject of "prison life," suffered no prejudice.
The defendant also argues that "[i]n addition to equal
protection and due process, the [S]ixth [A]mendment right to
counsel and due process, compensation for experts, even in
non-capital cases, has been required to satisfy the [S]ixth
[A]mendment's entitlement to the effective assistance of
14
counsel." The defendant's claim is just another twist of the
foregoing contentions, and we reject it.
B.
The defendant argues that the circuit court erred in
denying his pretrial "motion to poll individual jurors as to
which statutory aggravating factors and elements of vileness
were found." The defendant, in his brief, says that the
circuit court denied his motion, and the defendant refers this
Court to an order dated July 25, 2000, which is contained in
the appendix as well as the record. The circuit court,
however, did not grant or deny the defendant's motion in the
circuit court's order dated July 25, 2000. We have reviewed
all the circuit court's orders which are in the record, and we
have not found an order disposing of this particular motion.
We can only conclude that the circuit court did not rule on
the defendant's motion, and the defendant failed to request a
ruling from the circuit court. Therefore, the defendant has
waived his claim because he was required to request a ruling
from the circuit court, and he failed to do so.
VIII. Voir Dire
A.
The defendant argues that the circuit court "erred in
sustaining the Commonwealth's objection to defense counsel's
inquiring during voir dire of a prospective juror['s] ability
15
to follow Virginia law concerning mitigation evidence." The
defendant says that the circuit court's failure to permit him
to ask these questions to the venire "regarding the individual
mitigation elements contained in the Virginia statutes"
violated the Sixth, Eighth, and Fourteenth Amendments to the
federal constitution.
The defendant complains about his voir dire of two
members of the venire, Christina M. Rigney and Keith D.
Wilkins. During the defendant's voir dire of Rigney, the
following colloquy occurred:
"[DEFENSE COUNSEL]: Okay. Would you be able
to consider facts — and I call them facts of
mitigation, such as a troubled family history, abuse
of drugs . . .
"MS. RIGNEY: Yes.
"[COMMONWEALTH'S ATTORNEY]: Judge, I'm going
to object, unless there's instructions about
mitigation factors . . .
"COURT: That's one thing. And the second
thing is that I — I think your question is
objectionable because you're asking her to decide a
hypothetical question, Mr. Hill [defendant's
counsel].
"[DEFENSE COUNSEL]: I — I'll withdraw the
question.
"COURT: Okay.
"[DEFENSE COUNSEL]: That's all the questions I
have for you.
"MR. RIGNEY: Okay.
16
"[DEFENSE COUNSEL]: Thank you."
During the defendant's voir dire of Wilkins, the
following colloquy occurred:
"[DEFENSE COUNSEL]: Before deciding on the —
whether to impose a punishment of life or a
punishment of guilt, if the Court were to instruct
you that there were certain facts that would
mitigate the sentence . . .
"[COMMONWEALTH'S ATTORNEY]: Judge, I'm going
to object to that. There's no instruction of the
Court in that regard.
"[DEFENSE COUNSEL]: Judge, I thought I had
asked that question of an earlier witness. And
maybe I just didn't . . .
"COURT: He objected . . . You did, and he can
object to it . . . We haven't given Mr. Wilkins that
instruction.
"You know, gentlemen, that's going to require a
great deal of work at this point. I mean, as you
know . . .
"The question is whether you will follow the
instructions.
"[DEFENSE COUNSEL]: I . . .
"COURT: All of them.
"[DEFENSE COUNSEL]: Right. I'll withdraw the
question, Your Honor.
"COURT: All right."
As the above colloquies clearly demonstrate, the
defendant's counsel withdrew his questions about mitigation
when he was questioning Rigney and Wilkins. We will not
permit the defendant's counsel to withdraw questions and then,
17
on appeal, assign error to the circuit court's ruling on
objections to the questions that he voluntarily withdrew. We
hold that his contentions are procedurally defaulted.
B.
After the jury was sworn and seated, the defendant stated
that he "also object[s] to the [c]ourt's ruling disallowing
the questions regarding the individual mitigation elements of
the — of the statute." The defendant assigns a separate error
to this objection. However, as we have already stated, we
will not permit the defendant to withdraw questions that he
asked of the venire and subsequently make an objection based
upon questions that he voluntarily withdrew. Just as
significant, once a jury is sworn, any objection to the
seating of a juror can only be made with leave of court, and
the defendant failed to obtain leave of court. Code § 8.01-
352; Hill v. Berry, 247 Va. 271, 273-74, 441 S.E.2d 6, 7
(1994).
IX. Issues that Arose at Trial
A.
As we have already stated, the victim, Parker, was an
inmate incarcerated in the Augusta Correctional Center. The
Commonwealth filed a pretrial motion in limine requesting that
the circuit court prohibit the defendant from introducing
evidence about the victim's criminal record. The circuit
18
court granted the Commonwealth's motion. In spite of the
circuit court's ruling, during the penalty phase of the trial,
the defendant tried to elicit information regarding the
victim's criminal record. The Commonwealth objected, and the
circuit court sustained the objection.
The defendant argues that the circuit court erred in
sustaining the objection because the defendant says that he
was entitled to present to the jury all the facts when it is
making a decision regarding his life or death. Continuing,
the defendant says that Code § 19.2-264.4(B) requires that the
circuit court admit in evidence the victim's criminal record
because that statute permits the admission of evidence
regarding circumstances surrounding the offense, subject to
the rules of evidence. We disagree with the defendant's
assertions.
Code § 19.2-264.4(B) states:
"In cases of trial by jury, evidence may be
presented as to any matter which the court deems
relevant to sentence, except that reports under the
provisions of § 19.2-299, or under any rule of
court, shall not be admitted into evidence.
"Evidence which may be admissible, subject to
the rules of evidence governing admissibility, may
include the circumstances surrounding the offense,
the history and background of the defendant, and any
other facts in mitigation of the offense. Facts in
mitigation may include, but shall not be limited to,
the following: (i) the defendant has no significant
history of prior criminal activity, (ii) the capital
felony was committed while the defendant was under
the influence of extreme mental or emotional
19
disturbance, (iii) the victim was a participant in
the defendant's conduct or consented to the act,
(iv) at the time of the commission of the capital
felony, the capacity of the defendant to appreciate
the criminality of his conduct or to conform his
conduct to the requirements of law was significantly
impaired, (v) the age of the defendant at the time
of the commission of the capital offense, or (vi)
mental retardation of the defendant."
Contrary to the defendant's assertions, Code § 19.2-
264.4(B) did not require the circuit court to admit in
evidence the victim's criminal history, which was not relevant
to any issue in this proceeding. The defendant simply wanted
to introduce evidence of the victim's prior criminal record to
show that the victim had been convicted of murder. The
victim's prior convictions had no relevance to the issue
whether the defendant's acts were vile, inhuman, or showed
depravity of mind, and the victim's criminal record was not
relevant to the issue whether the defendant would constitute a
serious continuing threat to society.
We also note that the defendant had no constitutional
right to present evidence of the victim's criminal history and
that the defendant's reliance upon Lockett v. Ohio, 438 U.S.
586 (1978), is misplaced. In Lockett, the Supreme Court held
that the Eighth and Fourteenth Amendments of the federal
constitution require that "the sentencer, in all but the
rarest kind of capital case, not be precluded from
considering, as a mitigating factor, any aspect of a
20
defendant's character or record and any of the circumstances
of the offense that the defendant proffers as a basis for a
sentence less than death." 438 U.S. at 604 (plurality
opinion). The Supreme Court pointed out in Lockett that
"[n]othing in this opinion limits the traditional authority of
a court to exclude, as irrelevant, evidence not bearing on the
defendant's character, prior record, or circumstances of his
offense." Id. at 605 n.12 (plurality opinion).
As we have already stated, the victim's criminal history
was not relevant and had no bearing on the defendant's
character, prior record, or the circumstances of the
defendant's offense. The defendant admitted during the
penalty phase of the trial that he did not like the victim,
that he had intended to kill the victim, and that he killed
the victim because the victim did not respect the defendant's
religious beliefs.
B.
The circuit court, without any objection from the
defendant, gave the following jury instruction:
"The Court instructs the jury that the evidence
must establish beyond a reasonable doubt that the
defendant actually caused the death of Brent Parker
before you can find him guilty of capital murder.
One who is present, aiding and abetting the actual
killing, but who is not the immediate perpetrator,
is a principal in the second degree and may not be
found guilty of capital murder.
21
"You may find the defendant guilty of capital
murder if the evidence establishes that the
defendant jointly participated in the fatal
stabbing, if it is established beyond a reasonable
doubt that the defendant was an active and immediate
participant in the act or acts that caused the
victim's death."
The defendant contends that the circuit court erred in
granting this jury instruction. The defendant, however,
admits that he did not object in the circuit court.
Accordingly, the defendant's argument is procedurally barred,
and we will not consider it on appeal. Rule 5:25.
C.
The jury returned a verdict which fixed the defendant's
punishment at death based upon both aggravating factors
contained in Code § 19.2-264.2, future dangerousness and
vileness. The defendant argues that the circuit court
erroneously refused his proposed instruction which stated that
the jury could only fix the defendant's punishment at death
based upon the vileness predicate if the jury unanimously
agreed that the Commonwealth's evidence proves torture or
depravity of mind or an aggravated battery to the victim
beyond the minimum necessary to accomplish an act of murder.
The proposed instruction would have also informed the jury
that its "decision must be unanimous as to at least one of the
above to find that [the defendant's] conduct was outrageously
or wantonly vile, horrible or inhuman."
22
We need not decide the defendant's contention because the
jury fixed the defendant's punishment at death based upon both
statutory aggravators. The jury's finding that the defendant
constituted a continuing serious threat to society is an
independent basis for the jury's imposition of the death
penalty. The defendant does not challenge the jury's finding
of the future dangerousness aggravator, therefore, that issue
is not before this Court on appeal. See Rash v. Hilb, Rogal &
Hamilton Co., 251 Va. 281, 286-87, 467 S.E.2d 791, 794-95
(1996); United Leasing Corp. v. Thrift Ins. Corp., 247 Va.
299, 308, 440 S.E.2d 902, 907 (1994); Crist v. Metropolitan
Mortgage Fund, 231 Va. 190, 193, 343 S.E.2d 308, 310 (1986);
Stamie E. Lyttle Co. v. County of Hanover, 231 Va. 21, 27, 341
S.E.2d 174, 178 (1986); Haynes v. Bekins Van & Storage Co.,
211 Va. 231, 233, 176 S.E.2d 342, 344 (1970).
We do not consider the defendant's argument that the
circuit court's failure to grant the proffered jury
instruction violates his Sixth and Fourteenth Amendment rights
to effective assistance of counsel because such claims are not
cognizable upon direct appeal. Johnson, 259 Va. at 675, 529
S.E.2d at 781.
X. Motion to Set Aside the Jury Verdict
The defendant argues that the Commonwealth failed to
present sufficient evidence that he had committed a capital
23
murder in violation of Code § 18.2-31(3). The defendant
states that "due to the similarities in the weapons taken from
Remington and Lenz it was impossible to determine which of
Parker's wounds came from Lenz's weapon." The defendant
contends that the Commonwealth failed to prove "that stab
wounds created by Lenz could by themselves have killed
Parker." Continuing, the defendant argues that the testimony
of correctional Officers Jones, Simmons, and Houching was not
credible and that the Commonwealth failed to prove that the
defendant had a specific intent to kill the victim.
The defendant's contentions are without merit. We hold
that the Commonwealth proved, beyond a reasonable doubt, that
the defendant intentionally killed Parker. The jury was
instructed that it "may find the defendant guilty of capital
murder if the evidence establishes that the defendant jointly
participated in the fatal stabbing, if it is established
beyond a reasonable doubt that the defendant was an active and
immediate participant in the act or acts that caused the
victim's death." As we have already stated, Officer Jones
testified that he saw the defendant stab Parker "on the front
part of [Parker's] body." Officer Houching testified that he
saw the defendant stab Parker between 10 and 15 times.
Officer Simmons testified that when he arrived at the meeting
24
room, he saw the defendant stab Parker about six or seven
times.
Officer Jones also testified that the defendant stabbed
the victim from the "waist up." Dr. Wagner testified that the
victim had 40 stab wounds in his chest area and that the stab
wounds had penetrated the victim's lungs, liver, and other
major organs. He also testified that all the wounds
contributed to the victim's death.
The defendant, relying upon Smith v. Commonwealth, 220
Va. 696, 261 S.E.2d 550 (1980), argues that the Commonwealth
failed to prove beyond a reasonable doubt that he acted with
premeditation. The defendant's argument is without merit. We
stated in Smith:
"To premeditate means to adopt a specific intent to
kill, and that is what distinguishes first and
second degree murder. The intent to kill must come
into existence at some time before the killing; it
need not exist for any particular length of time.
As we said in Pannill v. Commonwealth, 185 Va. 244,
255, 38 S.E.2d 457, 463 (1946), quoting from
McDaniel v. Commonwealth, 77 Va. 281, 284 (1883),
'it is necessary that the killing should have been
done on purpose and not by accident or without
design. . . .' The exact state of the defendant's
mind at the time of killing is the crucial factor in
determining intent. 'It is the will and purpose to
kill, not necessarily the interval of time, which
determine the grade of the offense.' Akers v.
Commonwealth, 216 Va. 40, 48, 216 S.E.2d 28, 33
(1975)."
220 Va. at 700-01, 261 S.E.2d at 553; accord Rhodes v.
Commonwealth, 238 Va. 480, 485, 384 S.E.2d 95, 98 (1989). The
25
evidence of record in this case was sufficient to permit the
jury to find that the defendant acted with premeditation. The
jury was entitled to conclude that the defendant had a
specific intent to kill the victim, based upon the defendant's
acts of stabbing the victim repeatedly in the chest with a
knife.
The defendant's argument that the testimony of Officers
Jones, Simmons, and Houching is not credible lacks merit. It
was the province of the jury to assess the credibility of the
witnesses. Phan v. Commonwealth, 258 Va. 506, 513, 521 S.E.2d
282, 286 (1999); Goins v. Commonwealth, 218 Va. 285, 289, 237
S.E.2d 136, 139 (1977).
XI. Statutory Review
A.
Pursuant to Code § 17.1-313(C)(1), we must determine
whether the sentence of death in this case was imposed under
the influence of passion, prejudice, or any other arbitrary
factor. We observe that the defendant does not contend that
the sentence of death imposed upon him was the influence of
passion, prejudice, or other arbitrary factor. Nonetheless,
we have reviewed the record, and we find no evidence that any
such factor was present or influenced either the jury's or the
circuit court's sentencing decision.
B.
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Code § 17.1-313(C)(2) requires this Court to determine
whether the sentence of death in this case is "excessive or
disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant." Pursuant to
Code § 17.1-313(E), we have accumulated the records in all
capital murder cases reviewed by this Court. The records
include not only those capital murder cases in which the death
penalty was imposed, but also those cases in which the circuit
court or jury imposed a life sentence, and the defendant
petitioned this Court for an appeal.
C.
The defendant argues in his brief that the "dominating
circumstances surrounding [his] crime is [sic] the
determination that the victim and defendant were at the time
of it's [sic] commission prisoners confined in a state
correctional facility. There is no underlying felony in this
case. Had this same event taken place outside the prison it
could only have been charged as first degree murder. The
defendant therefore argues that the similar cases this [C]ourt
should compare his with are those dealing with murders where
the defendant and the victim are inmates at a correctional
facility." We disagree with the defendant.
In Johnson v. Commonwealth, 259 Va. at 683, 529 S.E.2d at
786, we rejected an argument which is substantially similar to
27
the argument that the defendant asserts in this appeal. In
Johnson, the defendant argued that his death sentence was
disproportionate and excessive when compared to the penalties
imposed on other defendants who were 16 years old when they
committed similar offenses. Rejecting this contention, we
held that when conducting our proportionality review, we must
determine whether other sentencing bodies in this Commonwealth
generally impose the supreme penalty for comparable or similar
crimes, considering both the crime and the defendant. We
refused to limit our proportionality review to cases involving
16-year-old males who had committed similar offenses. Rather,
we compared the record in Johnson with the records in other
capital murder cases, and, because the jury based Johnson's
sentence of death upon both future dangerousness and vileness,
we gave particular consideration to other capital cases in
which the death penalty was imposed under both predicates. We
pointed out that the defendant's age was only one factor to
consider in determining whether other juries generally imposed
the sentence of death for similar crimes.
Likewise, in the appeal before this Court, the fact that
the defendant was an inmate, who killed another inmate, is
only one factor to consider in determining whether other
juries generally impose the sentence of death for similar
crimes. Code § 17.1-313(C)(2) does not require that this
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Court confine its review to crimes that are identical; rather,
we consider comparable or similar crimes.
Applying the appropriate test, we have examined records
in all capital murder cases previously reviewed by this Court
when, as here, the death penalty was imposed based upon Code
§ 18.2-31(3), the capital murder of an inmate while the
defendant was confined in a state or local correctional
facility. See Payne v. Commonwealth, 233 Va. 460, 357 S.E.2d
500, cert. denied, 484 U.S. 933 (1987). Additionally, we have
examined the records in all capital murder cases previously
reviewed by this Court when the sentence of death was based
upon aggravated battery, vileness, and future dangerousness
and the victim died as a result of multiple stabbings. See
Johnson v. Commonwealth, 259 Va. 654, 529 S.E.2d 769; Wilson
v. Commonwealth, 249 Va. 95, 452 S.E.2d 669, cert. denied, 516
U.S. 841 (1995); Breard v. Commonwealth, 248 Va. 68, 445
S.E.2d 670; Murphy v. Commonwealth, 246 Va. 136, 431 S.E.2d
48, cert. denied, 510 U.S. 928 (1993); Satcher v.
Commonwealth, 244 Va. 220, 421 S.E.2d 821 (1992), cert.
denied, 507 U.S. 933 (1993); King v. Commonwealth, 243 Va.
353, 416 S.E.2d 669, cert. denied, 506 U.S. 957 (1992); Mu’Min
v. Commonwealth, 239 Va. 433, 389 S.E.2d 886 (1990), aff'd,
500 U.S. 415 (1991); Watkins v. Commonwealth, 238 Va. 341, 385
S.E.2d 50 (1989), cert. denied, 494 U.S. 1074 (1990); Hoke v.
29
Commonwealth, 237 Va. 303, 377 S.E.2d 595, cert. denied, 491
U.S. 910 (1989); Coleman v. Commonwealth, 226 Va. 31, 307
S.E.2d 864 (1983), cert. denied, 465 U.S. 1109 (1984); Smith
v. Commonwealth, 219 Va. 455, 248 S.E.2d 135 (1978), cert.
denied, 441 U.S. 967 (1979).
Our examination of these decisions, as well as capital
cases resulting in life imprisonment, reveals that the
defendant's sentence of death is neither excessive nor
disproportionate when compared to sentences generally imposed
by sentencing bodies in this jurisdiction for comparable or
similar crimes.
D.
The defendant argues that his research suggests that
"despite there being over twenty two cases as [sic] inmate on
inmate homicides in Virginia prisons since 1985 . . . only one
has resulted in a sentence of death . . . . Furthermore, the
death sentence of Joseph Payne was later committed [sic] to
life in prison by the Governor." Hence, the defendant
contends that his sentence is excessive.
We find no merit in the defendant's assertion that his
sentence is excessive merely because the Governor of this
Commonwealth chose to commute the death sentence of an inmate
who had killed another inmate. We do not consider the actions
30
of the executive branch when making our statutory
determination of proportionality.
The defendant also argues that the sentence of death is
excessive and disproportionate, and that it violates the
Sixth, Eighth, and Fourteenth Amendments to the federal
constitution. This argument is not the subject of an
assignment of error and, therefore, we will not consider it on
appeal.
XII. Verdict Form
This Court, sua sponte, asked the litigants to address
the verdict form utilized during the penalty phase of the
defendant's trial in view of our decision in Atkins v.
Commonwealth, 257 Va. 160, 179, 510 S.E.2d 445, 457 (1999).
Upon considering the letter briefs, the record, and argument
of counsel, we conclude that any questions concerning the
verdict form in this case are procedurally defaulted because
the defendant neither raised these issues in the circuit court
nor assigned error to the verdict form before this Court. See
Rule 5:25; Burns, 261 Va. at 343 n.16, ___ S.E.2d at ___ n.16;
Orbe v. Commonwealth, 258 Va. 390, 403 n.13; 519 S.E.2d 808,
816 n.13 (1999), cert. denied, 529 U.S. 1113 (2000).
XIII. Conclusion
Having reviewed the sentence of death, finding no
reversible error in the record, and perceiving no reason to
31
commute the death sentence, we will affirm the judgment of the
circuit court.
Affirmed.
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