Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Compton, Senior Justice
MARK WESLEY BAILEY
OPINION BY
v. Record Nos. 992840, JUSTICE LAWRENCE L. KOONTZ, JR.
000151 April 21, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Walter J. Ford, Judge
As mandated by Code § 17.1-313, we review the convictions
and death sentences imposed upon Mark Wesley Bailey (Bailey),
for the capital murder of Nathan Mark Bailey (Nathan), Bailey’s
two-year-old son. We also review Bailey’s convictions for the
first-degree murder of Katherine Ester Bailey (Katherine),
Bailey’s wife, and use of a firearm in the commission of capital
murder and first-degree murder. 1
1
By order entered January 27, 2000, we certified from the
Court of Appeals of Virginia to this Court the record of
Bailey’s appeal of the noncapital convictions (Record No.
000151). The effect of the certification is to transfer
jurisdiction over the noncapital appeal to this Court. Code
§ 17.1-409(A). Because the certification occurred after the
filing of the opening brief in the capital appeal (Record No.
992840), we permitted Bailey to file a supplemental brief based
upon the petition for appeal he had filed in the Court of
Appeals. Only the first of Bailey’s assignments of error in the
supplemental brief raises an issue not already raised in the
capital appeal. The remaining assignments of error in the
supplemental brief, numbers 2, 3, and 4, correspond to
assignments of error numbers 10, 11, and 12 in the capital
appeal. Accordingly, we will address those issues in this
opinion with reference to the latter designations.
BACKGROUND
Under familiar principles of appellate review, we will
review the evidence in the light most favorable to the
Commonwealth, the party prevailing below. Clagett v.
Commonwealth, 252 Va. 79, 84, 472 S.E.2d 263, 265 (1996), cert.
denied, 519 U.S. 1122 (1997). In his opening brief, Bailey
recounts a self-serving narrative of his wife’s infidelity which
he contends drove him to commit these crimes. The facts
underlying this narrative were developed during the penalty-
determination phase of Bailey’s trial as evidence in mitigation
against the death penalty. The prurient details of this
evidence are not relevant to any issue to be considered in these
appeals other than the appropriateness of the imposition of the
death penalty. Accordingly, we will limit our present
recitation of the facts to those relevant to our consideration
of Bailey’s assignments of error.
Bailey was married to Katherine, his cousin whom he had
known most of his life and with whom he had been romantically
involved for over a year, on December 25, 1993 in Reno, Nevada.
In March 1996, Katherine gave birth to the couple’s son, Nathan.
After the birth of their son, the couple became emotionally
estranged, although they continued living in the same household.
2
In mid-1998, Bailey began relating to his co-workers a
fabricated account of his wife having received threatening
telephone calls and notes. Bailey subsequently admitted to
police that he invented these stories in order to divert
suspicion from himself when he murdered his wife. In August
1998, Bailey borrowed a .22-caliber pistol from a friend and
purchased ammunition for the pistol.
On September 10, 1998, Bailey awoke about 4:30 a.m., went
to the bedroom where his wife was sleeping, and shot her three
times in the head with the borrowed pistol. Bailey then heard
Nathan awaking in the next bedroom. He went to his son’s
bedroom and shot the child twice in the head as the child was
climbing out of bed.
Bailey washed blood off his face and dressed for work. He
cut the bathroom window screen with a razor knife and cut the
outside telephone line in order to give the appearance that a
break-in had occurred. Bailey then left for work, taking the
pistol and razor knife with him.
When Bailey arrived at work, he told Richard Moravec, his
supervisor, that his wife had received another threatening note
that read “X-U-T” or “X-U-P” and that he believed this meant
“Time’s up.” Bailey repeated this story to Joseph Yount,
Moravec’s supervisor. A short time later, Bailey told Moravec
3
that he had received a telephone call from someone claiming that
he “had [Bailey’s] wife.” Moravec reported these events to
Yount, who instructed Moravec to call the police. Yount then
accompanied Bailey to Bailey’s home.
When Yount and Bailey arrived at Bailey’s home, police had
already arrived and an officer emerging from one of the bedrooms
stopped the two men in the living room. Yount suggested that
they wait outside. Yount later testified that as they waited
Bailey “was stone-faced and cold-looking.” Thomas Killilea, a
detective with the Hampton Police Department, informed Bailey
that his wife and son were dead. Killilea testified that upon
hearing this, Bailey lurched forward and appeared to have tears
in his eyes. Bailey then told Killilea about the threatening
telephone calls and notes that he claimed his wife had received.
Killilea asked Bailey to accompany him to the police
station and Bailey agreed. Bailey rode in the front of
Killilea’s police vehicle; Yount rode in the back seat. Bailey
was not under arrest at this time. At the police station,
Bailey signed a consent form allowing the police to search his
home; he also consented to take a polygraph test. While at the
police station, Bailey was offered food, drink, and the
opportunity to use the lavatory. He engaged the police officers
in casual conversation and was allowed to step outside to smoke
4
cigarettes. During this time, Bailey wrote a statement
detailing the fictitious story of the threats made against his
wife.
The polygraph was administered to Bailey at 12:15 p.m.
During the polygraph, the examiner detected deception in
Bailey’s response to the question, “Are you intentionally
withholding the name of the killer . . .?” The examiner asked
Bailey if he thought it was time to tell the detectives “what
was really going on.” Bailey looked at the floor and answered,
“[Y]eah.”
At 1:42 p.m., Bailey was taken to an interview room where
Killilea and Detective Jimmy L. Forbes spoke to him for a little
over an hour. Bailey was mostly unresponsive during this
interview. Forbes raised the subject of his own religious
beliefs. He suggested that Bailey needed to get his “heart
right with the Lord and that his soul would not rest until he
did.” Bailey asked for a soft drink. When Killilea left the
room to get the soft drink, Bailey took a legal pad and pen from
the table in the interview room and wrote, “I Mark Bailey do
hereby without any coercsion [sic] admit to the murder of my
wife and son.”
When Killilea returned with the soft drink, Forbes showed
him the statement Bailey had written. Bailey then said, “You
5
got what you wanted. I guess I’m not leaving now.” At 3:19
p.m., Bailey was advised of his Miranda rights, and the
detectives began an interrogation that lasted until 5:45 p.m.
During this period Bailey wrote out answers to the detectives’
questions and a videotape of his confession to the murders was
made.
During his stay at the police station Bailey never asked to
leave, nor did he request an attorney. At the conclusion of the
interrogation, Bailey remarked to Killilea, “You probably think
I’m an [expletive deleted] for killing my wife and family - - or
my wife and son.” The detective explained that if he had
thought that he would not have treated Bailey with dignity and
respect. Bailey agreed he had been “treated well.”
PROCEEDINGS
A. Pre-trial
On December 7, 1998, the grand jury of the City of Hampton
returned an indictment against Bailey charging him with the
capital murder of Nathan as part of the same act or transaction
as the killing of Katherine, Code § 18.2-31(7), “and/or” as the
killing of a person under the age of fourteen by a person
twenty-one years of age or older, Code § 18.2-31(12). In
separate indictments, Bailey was also charged with the first-
degree murder of Katherine, Code § 18.2-32, and with one count
6
of the use of a firearm in each of the two killings, Code
§ 18.2-53.1.
On January 12, 1999, Bailey filed a motion for the
appointment of an “expert investigator.” Bailey contended that
he needed the assistance of an investigator to “locate essential
witnesses and data, [and] examine and evaluate testimony and
documents . . . likely to be significant at a capital murder
trial.” By order entered that same day, the trial court denied
the motion, finding there was no “sufficient reasonable cause
for an investigator to be assigned to the defense in this case.”
On February 9, 1999, Bailey filed a motion to have the
Virginia capital murder and death penalty statutes declared
unconstitutional. Within a supporting memorandum filed with
that motion, Bailey set out various arguments that the manner in
which capital murder trials are conducted and death sentences
reviewed on appeal violated aspects of the Fifth, Sixth, Eighth,
and Fourteenth Amendments of the United States Constitution.
Since Bailey challenges the denial of his motion by the trial
court in this appeal, we need not recite those arguments here,
but will address them in our discussion of Bailey’s assignments
of error.
On that same day, Bailey filed a motion for discovery and
inspection. Within that motion, Bailey made a litany of
7
requests for information from the Commonwealth, which, as his
counsel subsequently conceded during argument of the motion,
went well beyond any reasonable interpretation of what the
Commonwealth could be required to provide a defendant under Rule
3A:11 and the dictates of Brady v. Maryland, 373 U.S. 83 (1963).
The trial court, acknowledging that the Commonwealth had an
“open file” policy, granted the motion only to the extent that
criminal discovery is required by Rule 3A:11.
On March 29, 1999, Bailey filed a motion to suppress the
statements he made to the police on September 10, 1998. During
oral argument in support of that motion, Bailey contended that
any statements made to the police prior to his having been read
his Miranda rights were the product of an improper custodial
interrogation. He further contended that his confession given
thereafter was not voluntary because the detectives through
trickery and manipulation had overborne his will. After hearing
evidence from the three detectives principally responsible for
the interview and interrogation of Bailey, the trial court found
that Bailey had not been in custody prior to his initial
admission of culpability for the murders and that his subsequent
confession was not the result of his will having been overborne
by the detectives. The trial court denied the suppression
motion.
8
On May 5, 1999, Bailey filed a motion for a bill of
particulars requesting, inter alia, that the Commonwealth
specify which of the aggravating factors of future dangerousness
or vileness it would rely upon in seeking to impose the death
penalty and the evidence in support thereof it would present.
Following oral argument on this motion, the trial court denied
the motion, finding that the indictment adequately informed
Bailey of the nature of the charges brought against him.
B. Guilt-determination Phase
On July 20, 1999, a three-day jury trial commenced in the
trial court. Evidence in accord with the facts recited above
concerning the events of September 10, 1998 was developed
through the testimony of various police officers and Bailey’s
co-workers. In addition, the Commonwealth presented forensic
evidence through the testimony of Assistant Chief Medical
Examiner Dr. Leah L.E. Bush.
Dr. Bush performed autopsies on the bodies of both victims.
She testified that Katherine had sustained three gunshot wounds
to the parieto-occipital area of the skull behind the left ear.
From the absence of powder stippling on the body, Dr. Bush
estimated that the shots had been fired from a distance of three
feet or more and that any one of the three wounds would have
been lethal. Dr. Bush further testified that Nathan had
9
sustained two close range gunshot wounds to the head and that
both shots penetrated the brain and either alone would have been
lethal.
The Commonwealth introduced photographs of the crime scene
through the testimony of Patrol Officer Keith Tucker and
paramedic Chris Skutans, who were among the first to arrive at
the crime scene. Each testified that these photographs depicted
what they saw inside the house, the only difference being that
the house had been dark when they entered it and the photographs
showed the scene illuminated rather than dark. The trial court
admitted these photographs in evidence over Bailey’s objection
that a proper foundation had not been laid for their admission.
Bailey also objected to several of these photographs and to
autopsy photographs of both victims on the grounds that they
were inflammatory and irrelevant. The trial court overruled
this objection, finding that the photographs were relevant to
show the nature of the victims’ wounds.
Bailey did not testify or offer any evidence in his defense
in the guilt-determination phase. Rather, Bailey relied on the
content of his statement to police, arguing to the jury that it
showed he had not planned or intended to kill his son, but that
he had done so in a moment of passion after he panicked when he
realized that Nathan would be traumatized by finding his
10
mother’s dead body. Similarly, he contended that the killing of
Katherine was not premeditated, but the result of his mental
anguish and emotional disturbance.
Bailey objected to two instructions proffered by the
Commonwealth that permitted the jury to find Bailey guilty of
two counts of capital murder based upon the two theories of
capital murder stated in the indictment. Bailey contended that
the indictment charged only one count of capital murder. The
trial court found that the “indictment is subject to two
different, separate sections of the statute . . . and [it would
be] proper to actually have two capital murder charges.”
The jury found Bailey guilty of two counts of capital
murder in the killing of Nathan as charged in the indictment, of
first-degree murder in the killing of Katherine, and of both
firearm charges.
C. Penalty-determination Phase
Prior to the commencement of the penalty-determination
phase, the Commonwealth elected not to present evidence of
Bailey’s future dangerousness to society. Thus, the
Commonwealth relied solely upon the vileness aggravating factor
to establish the appropriateness of imposing death sentences for
the two capital murder convictions. The Commonwealth presented
evidence of vileness based upon the statutory definition that
11
“the offense . . . involved . . . depravity of mind or an
aggravated battery to the victim.” Code § 19.2-264.2.
Dr. Bush again testified for the Commonwealth and
reiterated her prior testimony concerning the gunshot wounds
sustained by the two victims. She further testified that the
manner in which Nathan was killed was consistent with an
“execution-style gunshot wound.” The Commonwealth also
presented victim-impact testimony from Katherine’s mother.
Prior to resting its case, the Commonwealth asked the trial
court to instruct the jury to also consider all the testimony
from the guilt-determination phase in considering the sentences.
Testifying for the defense, Dr. Evan Nelson, a clinical
psychologist, described Bailey as suffering from a borderline
personality disorder. Dr. Nelson testified that impulsive
actions are characteristic of this condition. Dr. Nelson
further opined that the killing of Nathan was “a very impulsive
act . . . an impulsive, stupid, terrible, senseless act . . .
and that fits with [a diagnosis of a] borderline personality.”
As mentioned previously, the balance of Bailey’s evidence
during the penalty-determination phase was directed toward
establishing that his wife’s infidelity and aberrant lifestyle
had emotionally traumatized Bailey and, thus, mitigated his
culpability for having committed these crimes. Although the
12
Commonwealth does not dispute the essential facts as recounted
by Bailey’s witnesses, Bailey’s interpretation that the evidence
showed him to be the “victim” of his wife’s emotional
manipulation was by no means established beyond controversion.
It was for the jury to determine what weight to accord this
evidence in determining Bailey’s sentence. We are cognizant of
the record and will consider it in our review of the jury’s
sentence even though we do not recount that evidence.
Bailey objected to the Commonwealth’s proposed verdict
forms for the capital murder charges, which permitted the jury
to impose a death sentence upon finding either that the killing
of Nathan was vile because it resulted from an aggravated
battery or because the murder resulted from a depravity of mind,
or that both of these circumstances were present. Bailey
contended that the forms were confusing, but acknowledged that
the forms properly instructed the jury that it should impose a
life sentence if it found that there was insufficient proof of
the vileness aggravating factor under either theory relied upon
by the Commonwealth. Bailey further indicated that he did not
have alternative forms to proffer. The trial court adopted the
Commonwealth’s verdict forms.
13
The jury imposed the death sentence for each of the capital
murder charges, a life sentence for the first-degree murder
charge, and a total of eight years for the firearm charges.
D. Post-trial
Prior to the sentencing hearing, Bailey filed a motion
requesting that the trial court obtain the records of capital
murder cases maintained by this Court pursuant to Code § 17.1-
313. The trial court denied the motion, indicating that it had
already reviewed “a large volume” of relevant cases in
anticipation of Bailey’s trial and sentencing and that it was
therefore not necessary for the trial court to obtain and review
additional records from this Court.
In that same motion, Bailey sought to have the jury’s death
penalty verdict set aside on the ground that the sentence was
disproportionate to sentences imposed in similar cases.
Following the preparation of a pre-sentencing report, the trial
court held a sentencing hearing and heard argument from Bailey
concerning the appropriateness of imposing the death sentences.
Bailey contended that the death sentence was not appropriate
because the killing of a child by his parent was an “emotional
trigger” which clouded the jury’s judgment, but which did not
indicate the requisite depravity of mind. Bailey asserted that
the vileness of the crime was thus based solely on the question
14
of an aggravated assault, and that the forensic evidence showed
that the victims “never knew what hit them” because the first
shots would have been fatal or rendered the victims unconscious.
The trial court confirmed the death sentences and the other
sentences imposed by the jury. These appeals followed.
DISCUSSION
A. Moot Issues
Bailey’s fourth assignment of error challenges the
constitutionality of the Virginia death penalty statute on the
ground that the Commonwealth may prove the aggravating factor of
future dangerousness through evidence of unadjudicated criminal
conduct. Because the Commonwealth did not present evidence
during the penalty-determination phase concerning Bailey’s
future dangerousness to society, this issue is moot and need not
be addressed. See Swann v. Commonwealth, 247 Va. 222, 228 n.2,
441 S.E.2d 195, 200 n.2, cert. denied, 513 U.S. 889 (1994);
Fisher v. Commonwealth, 236 Va. 403, 414, 374 S.E.2d 46, 53
(1988), cert. denied, 490 U.S. 1028 (1989). For the same
reason, Bailey’s challenges to the constitutionality of the
future dangerousness aggravating factor that are part of his
first and third assignments of error are also moot.
15
B. Issues Previously Decided
In his fourteenth assignment, Bailey asserts that the trial
court erred in denying as overbroad that portion of his
discovery motion that requested information from the
Commonwealth beyond that requisite to meet the requirements of
Rule 3A:11. Bailey contends that a capital murder defendant
should be afforded more extensive discovery because of “the
unique and irreversible nature of the death penalty.” At the
hearing on his motion, Bailey conceded that his motion requested
any and all evidence Rule 3A:11 required the Commonwealth to
provide him and “anything else including the kitchen sink.”
Bailey’s motion and argument are virtually identical to those
discussed in Walker v. Commonwealth, 258 Va. 54, 63, 515 S.E.2d
565, 570-71 (1999). As in that case, the record here reflects
that Bailey received all of the discovery to which he was
entitled. We find nothing in Bailey’s argument that would
warrant an extension of his discovery rights. Id. at 63, 515
S.E.2d at 571.
Bailey further contends in his fifteenth assignment of
error that the trial court erred in denying his motion for a
bill of particulars. There is no merit to this contention. In
Strickler v. Commonwealth, 241 Va. 482, 404 S.E.2d 227, cert.
denied, 502 U.S. 944 (1991), we held that when the indictment is
16
sufficient to give the accused “notice of the nature and
character of the offense charged so he can make his defense,” a
bill of particulars is not required. Id. at 490, 404 S.E.2d at
233; see also Wilder v. Commonwealth, 217 Va. 145, 147, 225
S.E.2d 411, 413 (1976). Here, there is no challenge to the
sufficiency of the indictment. As in Strickler, those parts of
Bailey’s request for a bill of particulars seeking disclosure of
the evidence upon which the Commonwealth intended to rely in the
guilt and sentencing phases of the trial “are sweeping demands
for pretrial disclosure of all the Commonwealth’s evidence.”
Strickler, 241 Va. at 490, 404 S.E.2d at 233. As such, the
request for a bill of particulars was nothing more than an
effort to obtain the same material Bailey had sought to obtain
through his overbroad discovery motion. We find nothing in this
record to warrant reconsideration of the well established
principles reiterated in Strickler concerning a defendant’s
right to a bill of particulars.
C. Matters Within the Trial Court’s Discretion
Bailey’s tenth, eleventh, and twelfth assignments of error
concern rulings committed to the trial court’s discretion. In
each instance we find no evidence to support a finding of an
abuse of that discretion and, accordingly, we hold that no error
occurred.
17
Bailey contends that the trial court erred in denying his
motion to be provided the services of an “expert investigator.”
We have consistently rejected the contention that defendants,
even in capital murder cases, have an indiscriminate entitlement
to the assistance of an investigator. See, e.g., George v.
Commonwealth, 242 Va. 264, 271, 411 S.E.2d 12, 16 (1991), cert.
denied, 503 U.S. 973 (1992). Rather, as with any request for
the Commonwealth to provide a defendant with expert assistance,
the defendant must demonstrate that he has a particularized
need, meaning one which is material to the preparation of his
defense, for the services of an expert, and that the denial of
such services would result in a fundamentally unfair trial. See
Husske v. Commonwealth, 252 Va. 203, 212, 476 S.E.2d 920, 925
(1996). The determination whether a defendant has adequately
demonstrated a particularized need for the assistance of an
expert rests within the discretion of the trial court. Id. at
212, 476 S.E.2d at 926.
Bailey asserted in his motion that he required an
investigator to “locate essential witnesses and data, [and]
examine and evaluate testimony and documents . . . likely to be
significant at a capital murder trial.” At the hearing on his
motion, Bailey merely reiterated his “need [for] some additional
assistance by way of the investigation” being conducted by his
18
counsel. These assertions fall far short of demonstrating a
particularized need for the services of an expert. “Mere hope
or suspicion that favorable evidence is available is not enough
to require that such help be provided.” Id. at 212, 476 S.E.2d
at 925. Accordingly, we cannot say that the trial court abused
its discretion in denying Bailey’s motion for the services of an
expert investigator.
Bailey contends that the trial court erred in admitting
into evidence thirteen photographs of the crime scene without
proper foundation. He contends that these photographs were not
initially proffered by the photographer who produced them and
that they did not accurately reflect the crime scene at the time
the subscribing witness first observed it. 2 The thirteen
photographs at issue were introduced during the testimony of
Officer Tucker and Skutans, the paramedic. Each testified that
the photographs accurately depicted the murder scene except that
the scene was more brightly lit in the photographs than it had
been.
2
Detective James A. Dillabough of the Hampton Police Crime
Scene Unit subsequently testified and identified the photographs
as those he had taken during the investigation of the murders
later on the morning of September 10, 1998. Bailey, however,
stated that he would not waive his prior objection.
19
We consistently have held that the admission of photographs
into evidence rests within the sound discretion of a trial
court, and that the trial court’s decision will not be disturbed
on appeal unless the record discloses a clear abuse of
discretion. Walton v. Commonwealth, 256 Va. 85, 91-92, 501
S.E.2d 134, 138, cert. denied, 525 U.S. 1046 (1998); Goins v.
Commonwealth, 251 Va. 442, 459, 470 S.E.2d 114, 126, cert.
denied, 519 U.S. 887(1996). Photographs are generally admitted
into evidence for two purposes: to illustrate a witness’
testimony, and as an “independent silent witness” of matters
revealed by the photograph. See Ferguson v. Commonwealth, 212
Va. 745, 746, 187 S.E.2d 189, 190, cert. denied, 409 U.S. 861
(1972). “[A] photograph which is verified by the testimony of a
witness as fairly representing what that witness has observed is
admissible in evidence and . . . it need not be proved by the
photographer who made it.” Id.
Here, the testimony of the two witnesses that the
photographs fairly represented what they had observed was
adequate to establish the authenticity of the representation of
the photographs. Clagett, 252 Va. at 87, 472 S.E.2d at 268.
The mere fact that the lighting was different at the time the
photographs were taken is not sufficient to render their
admission into evidence by the trial court an abuse of
20
discretion. See id. at 86, 472 S.E.2d at 267 (permitting jury
to view videotape of crime scene where bodies of victims had
been moved by emergency personnel was not abuse of discretion).
Bailey also asserts that the trial court erred in admitting
four photographs of the crime scene and eight autopsy
photographs of the victims, on the ground that they were
cumulative, gruesome, and unduly inflammatory. Specifically
with respect to the photographs of Nathan, Bailey asserts that
because he stipulated to “the manner of the child’s death” as
depicted by diagrams in the autopsy report, the crime scene and
autopsy photographs “added nothing to the information the jurors
already possessed” and “did not tend to show motive, intent,
method, premeditation, malice, or the degree of atrociousness of
the crime.” We disagree.
Admission of graphic photographs rests within the
discretion of the trial court so long as they are relevant and
accurately portray the scene of the crime or the condition of
the victim. See Clozza v. Commonwealth, 228 Va. 124, 135, 321
S.E.2d 273, 280 (1984), cert. denied, 469 U.S. 1230 (1985).
Contrary to Bailey’s assertion, his stipulation to “the manner
of the child’s death” did not render the crime scene and autopsy
photographs cumulative or irrelevant. The autopsy photographs
were relevant to explain the clinical illustrations of Nathan’s
21
wounds in the autopsy report. Moreover, it is self-evident that
all these photographs tended to establish the method,
maliciousness, and degree of atrociousness of the crime.
Walton, 256 Va. at 92, 501 S.E.2d at 138; Goins, 251 Va. at 459,
470 S.E.2d at 126. Accordingly, we find no abuse of the trial
court’s discretion in the admission of any of these photographs.
D. Constitutionality of the Virginia Capital Punishment Statutes
Bailey’s first, second, third, fifth, and sixth assignments
of error repeat the challenges to the constitutionality of the
Virginia death penalty statute and the statutory scheme under
which capital murder trials are conducted and death sentences
are reviewed on appeal that the trial court rejected in
addressing Bailey’s pre-trial motion. We have thoroughly
addressed and rejected in numerous prior capital murder cases
the arguments raised in these assignments of error, and we find
no reason to modify our previously expressed views on these
issues.
In Breard v. Commonwealth, 248 Va. 68, 74, 445 S.E.2d 670,
674-75, cert. denied, 513 U.S. 971 (1994), we rejected the
assertion that capital punishment statutes do not give
meaningful guidance to a jury because they do not require the
jury to find that aggravating circumstances outweigh mitigating
ones before fixing the death penalty. In Breard we also
22
rejected the contention that the method of instructing jury on
mitigation impermissibly interferes with jury’s consideration of
evidence offered in mitigation. Id.
In Turner v. Commonwealth, 234 Va. 543, 552, 364 S.E.2d
483, 488, cert. denied, 486 U.S. 1017 (1988), we rejected the
assertion that the vileness aggravating factor is
unconstitutionally vague. Similarly, we have repeatedly
rejected the contentions that the death penalty constitutes
cruel and unusual punishment in violation of the Eighth
Amendment, see, e.g., Joseph v. Commonwealth, 249 Va. 78, 82,
452 S.E.2d 862, 865, cert. denied, 516 U.S. 876 (1995), and that
the method of review of a death sentence by trial court and by
this Court on appeal are unconstitutional, see, e.g., Walker v.
Commonwealth, 258 Va. 54, 61, 515 S.E.2d 565, 569 (1999), cert.
denied, ___ U.S. ___, 120 S.Ct. 955 (2000).
In his seventh assignment of error, Bailey contends, inter
alia, that this Court has failed in its statutory duty under
Code § 17.1-313(E) to maintain “records of all capital felony
cases” for use in the proportionality review required by Code
§ 17.1-313(C)(2), and that this constitutes a violation of
“Bailey’s due process and other constitutional rights.” We
disagree.
23
Code § 17.1-313(A) requires that “[a] sentence of death,
upon the judgment thereon becoming final in the circuit court,
shall be reviewed on the record by the Supreme Court.” As part
of that mandatory review, subsection (C)(2) of the statute
directs this Court to determine “[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(E) further provides that:
The Supreme Court may accumulate the records of
all capital felony cases tried within such period of
time as the court may determine. The court shall
consider such records as are available as a guide in
determining whether the sentence imposed in the case
under review is excessive. Such records as are
accumulated shall be made available to the circuit
courts.
(Emphasis added.)
This statute uses discretionary language permitting this
Court to determine the period of time within which the records
of all capital felony cases will be accumulated for purposes of
a proportionality review of a death sentence. Thus, in the
first capital murder case reviewed by this Court following the
enactment of the former version of Code § 17.1-313, the Court
exercised that discretion by entering an order
directing the Clerk of this Court henceforth to
segregate and accumulate the printed records and
opinions in all class 1 felony cases, to maintain a
current index of those cases, and to make the index,
records, and opinions of this Court available for
24
examination upon the request of any court of record in
the Commonwealth or in the federal jurisdiction.
Smith v. Commonwealth, 219 Va. 455, 482 n.8, 248 S.E.2d 135, 151
n.8 (1978), cert. denied, 441 U.S. 967 (1979); see also Jones v.
Commonwealth, 228 Va. 427, 450, 323 S.E.2d 554, 567 (1984),
cert. denied, 472 U.S. 1012 (1985).
This archive now maintained by the Clerk pursuant to our
order contains the records of all appeals of convictions under
Code § 18.2-31, whether the sentence imposed was death or life
imprisonment, filed in this Court since Smith and, from 1986,
those capital cases resulting in a sentence of life imprisonment
first reviewed in the Court of Appeals of Virginia. In
addition, these records have been summarized in digest form, and
are cross-indexed according to the offense of conviction, the
sentence imposed, and whether a jury or the trial court imposed
that sentence. 3
3
Although Bailey offers no supporting authority for the
proposition that these records are incomplete, we recognize that
a small number of defendants convicted of capital murder and
sentenced to life imprisonment waive their right of appeal and,
thus, records of those cases are not included in the archive
maintained by this Court pursuant to Code § 17.1-313(E).
However, we are of opinion that such cases almost invariably
involve guilty pleas and the Commonwealth’s agreement not to
seek the death penalty. Thus, their value for making a
proportionality analysis is minimal because the record would
contain little or no background upon which to make the
proportionality comparison.
25
Moreover, contrary to Bailey’s assertion that the
maintenance of “complete” records is requisite to the
preservation of his right to a proportionality review of his
death sentence, nothing in the statute, nor in the case law
relied upon by Bailey, prescribes the method by which an
appellate court conducts a proportionality review of a death
sentence. Rather, so long as the methods employed assure that
the death sentence is not disproportionate to the penalty
generally imposed for comparable crimes, due process will be
satisfied and the defendant’s constitutional rights protected.
Additional challenges to the constitutionality of the
capital appellate review process raised within Bailey’s seventh
assignment of error have been previously addressed, and we find
no reason to modify our previously expressed views. See, e.g.,
Payne v. Commonwealth, 233 Va. 460, 473-74, 357 S.E.2d 500, 508-
09, cert. denied, 484 U.S. 933 (1987)(procedures for appellate
review of death penalty cases, including expedited review,
provide a meaningful appeal and are constitutional).
On a related issue, in his twentieth assignment of error,
Bailey contends that the trial court erred in refusing his
motion that it obtain from this Court and review the records of
prior capital murder cases maintained pursuant to Code 17.1-
313(E) before determining whether the death sentences were
26
appropriate, or to set them aside for “good cause shown”
pursuant to Code § 19.2-264.5. 4 This contention is without
merit.
As noted above, Code § 17.1-313(E) requires that “[s]uch
records as are accumulated [by this Court] shall be made
available to the circuit courts.” We have previously supplied
our records to a circuit court upon request. See Bunch v.
Commonwealth, 225 Va. 423, 448, 304 S.E.2d 271, 285, cert.
denied, 464 U.S. 977 (1983). However, nothing in the statute
requires the circuit court to make such a request, the matter
being one committed to the trial court’s discretion. Here, the
trial court indicated that it had reviewed a large number of
cases to permit it to fairly determine whether the death
sentences were appropriate. Moreover, nothing in the record
constitutes good cause shown to set these sentences aside and
for the trial court to have imposed life sentences.
4
Bailey further contends that the trial court’s denial of
his motion constitutes a violation of his constitutional right
to a proportionality review. Bailey did not raise this argument
below and, thus, we shall not consider it for the first time on
appeal. Rule 5:25. Moreover, Bailey confuses the
appropriateness review conducted by the trial court pursuant to
Code § 19.2-264.5 with the proportionality review conducted by
this Court pursuant to Code § 17.1-313(C)(2). The
proportionality review conducted by this Court in all death
sentence cases suffices to secure the rights of the defendant in
this regard.
27
Accordingly, we find no abuse of discretion in the trial court’s
denial of Bailey’s motion.
In his motion to have the Virginia death penalty statute
and the statutory scheme under which capital murder trials are
conducted and death sentences are reviewed on appeal declared
unconstitutional, Bailey contended that the Commonwealth’s
system of appointing counsel in capital cases results in a
denial of the right to effective assistance of counsel. The
trial court rejected this contention without comment.
In addition, in his eighth assignment of error, Bailey
asserts that “Virginia has no system for appointment of counsel
. . . [and] expends no public funds on education, assistance, or
training of capital defense counsel.” Bailey further asserts
that appointed counsel in capital cases are “disproportionately
from small firms with resources inadequate to defend a capital
murder charge.” Bailey also contends that the Commonwealth
fails to provide meaningful review of ineffective assistance of
counsel claims raised in habeas corpus petitions. According to
Bailey, “[t]hese factors, individually and collectively, violate
Bailey’s Sixth Amendment right to counsel.” We disagree.
Bailey’s assertion that Virginia has no system for the
appointment of counsel in capital cases is demonstrably in
error. Code §§ 19.2-163.7 and 19.2–163.8 provide, in capital
28
cases, for the appointment of counsel who meet qualifications
determined by the Public Defender Commission in conjunction with
the Virginia State Bar. These statutes provide the criteria to
be considered in determining the qualifications for attorneys so
appointed, including the requirements that they have “current
training in death penalty litigation . . . [and a] demonstrated
proficiency and commitment to quality representation.” We are
of opinion that this statutory scheme for identifying and
appointing qualified attorneys to represent indigent defendants
in capital murder cases adequately safeguards those defendants’
constitutionally guaranteed right to counsel.
Bailey cites no authority for the proposition that a state
is required, as part of its obligation to afford indigent
defendants with appointed counsel in capital cases, to further
provide for the education, assistance, or training of such
counsel. In any case, there is no merit to Bailey’s contention
that Virginia fails to allocate public funds for these purposes.
In addition to establishing and funding the Public Defender
Commission, the General Assembly, through the appropriation made
for the Virginia State Bar, allocates funds for the Virginia
Capital Representation Resource Center. See, e.g., 1998-2000
Executive Budget, 1999 Amendments, page B-17 (1999).
29
Moreover, in 1998, the General Assembly authorized a study
of “the quality of capital representation of indigent defendants
in Virginia . . . [and] the standards for qualification of
counsel promulgated pursuant to [Code] § 19.2-163.8.” House
Joint Resolution 190, Acts 1998, at p. 2649. Although
recommending certain improvements in the manner in which counsel
are appointed in capital cases, the authors of the study
concluded that “[t]he overall state of the system for
representation of indigent capital defendants is good.” Report
of the Virginia State Crime Commission, Capital Representation
of Indigent Defendants, House Document 60, at 1 (1999).
According to a survey conducted as part of the study, the
quality of representation by appointed counsel in capital murder
trials, as appraised by the trial court judges, met or exceeded
the desired level of expertise and performance ninety-eight
percent of the time. Id. at 19. This empirical data refutes
Bailey’s wholly unsupported assertion that appointed counsel in
capital murder cases are generally unqualified to provide
effective representation.
We further reject Bailey’s contention, also unsupported by
reference to any credible data, that appointed counsel in
capital murder trials are “disproportionately from small firms
with resources inadequate to defend a capital murder charge.”
30
Pursuant to Code § 19.2-163, counsel appointed in capital murder
cases may receive a fee in “an amount deemed reasonable by the
court” and “payment of such reasonable expenses incurred.”
Accordingly, the ability of an appointed attorney to represent a
capital murder defendant is not limited to the independent
resources available to that attorney from his or her law firm
because the trial court will compensate the attorney for any
reasonable expenditure of time and expenses. Moreover, we are
unwilling to accept Bailey’s unsupported assertion that
attorneys in “small firms” are not in a position to adequately
defend a client charged with capital murder.
Bailey’s contention that Virginia fails to provide
meaningful review of ineffective assistance of counsel claims
raised in habeas corpus petitions does not state an allegation
of a facial or systemic violation of the constitutionally
guaranteed right to counsel. Moreover, Bailey has not proffered
any evidence in support of this contention. Accordingly, we
reject this unsupported contention.
For these reasons, we hold that Virginia’s statutory scheme
for the conduct of capital murder trials and the review of death
sentences does not violate the due process rights and other
protections afforded by the Fifth, Sixth, Eighth and Fourteenth
Amendments.
31
E. Suppression of Bailey’s Statements to Police
In his thirteenth assignment of error, Bailey contends that
the trial court should have suppressed all statements made by
him to the police because his initial confession was made before
he received Miranda warnings. He further contends that his
detailed confession was the result of police coercion. We
disagree with both of these contentions.
Bailey premises his argument that his initial statements
were inadmissible and, thus, taint his subsequent full
confession, given after he received Miranda warnings, on the
ground that he had not waived his rights against self-
incrimination and to the benefit of counsel “during in-custody
questioning.” The difficulty with this argument is that it
fails to address the trial court’s finding that prior to
Bailey’s making his initial confession he was not in custody.
In Miranda, the Supreme Court held that, before an
individual may be questioned by police, he must be warned of his
right to remain silent and his right to an attorney only when
that “individual is taken into custody or otherwise deprived of
his freedom by the authorities in any significant way and is
subjected to questioning.” Miranda v. Arizona, 384 U.S. 436,
478 (1966). The Supreme Court subsequently explained in Oregon
32
v. Mathiason, 429 U.S. 492 (1977), that Miranda warnings are
implicated only during a custodial interrogation:
Any interview of one suspected of a crime by a police
officer will have coercive aspects to it, simply by
virtue of the fact that the police officer is part of
a law enforcement system which may ultimately cause
the suspect to be charged with a crime. But police
officers are not required to administer Miranda
warnings to everyone whom they question. Nor is the
requirement of warnings to be imposed simply because
the questioning takes place in the station house, or
because the questioned person is one whom the police
suspect. Miranda warnings are required only where
there has been such a restriction on a person’s
freedom as to render him “in custody.” It was that
sort of coercive environment to which Miranda by its
terms was made applicable, and to which it is limited.
Id. at 495.
We have also observed that Miranda warnings are not
required in every instance when a suspect is interrogated at a
police station. Coleman v. Commonwealth, 226 Va. 31, 47, 307
S.E.2d 864, 872 (1983), cert. denied, 465 U.S. 1109 (1984). We
have stated that “[i]t is the custodial nature rather than the
location of the interrogation that triggers the necessity for
giving Miranda warnings.” Id. at 47, 307 S.E.2d at 872; accord
Burket v. Commonwealth, 248 Va. 596, 605, 450 S.E.2d 124, 129
(1994), cert. denied, 514 U.S. 1053 (1995).
Bailey clearly was not in custody such as is contemplated
by Miranda at the time he made his initial confession. The
record shows that he voluntarily accompanied police to the
33
police station in an effort to continue the ruse that his wife
had received threatening telephone calls and notes. His
interaction with police throughout the morning and into the
early afternoon was entirely voluntary and Bailey was made aware
on more than one occasion that he was free to leave, if he so
desired. Accordingly, we find no merit to Bailey’s contention
that any statements he made prior to being given the Miranda
warnings were obtained in violation of his Fifth Amendment
rights. Thus, Bailey’s initial confession was admissible and
did not taint his subsequent confession.
Bailey nonetheless contends that the detailed confession,
obtained after he had been taken into custody and was given the
Miranda warnings, was not voluntary. He contends that “[t]he
interrogators effectively tricked, coerced and cajoled [him]
into making incriminating statements” and, thus, that his “will
was overborne by the interrogators.” We disagree.
When determining whether a defendant’s will has been
overborne, the totality of the circumstances, including the
defendant’s experience and background as well as the conduct of
the police, must be examined. Gray v. Commonwealth, 233 Va.
313, 324, 356 S.E.2d 157, 163, cert. denied, 484 U.S. 873
(1987). While the question whether a statement is voluntary is
ultimately a legal rather than a factual one, subsidiary factual
34
determinations made by the trial court are entitled to a
presumption of correctness. Thus, the trial court’s finding
that Bailey’s will was not overborne is a factual finding,
entitled on appeal to the same weight as a finding by a jury,
and will not be disturbed unless plainly wrong. Witt v.
Commonwealth, 215 Va. 670, 674-75, 212 S.E.2d 293, 297 (1975).
The evidence summarized above is fully sufficient to support the
trial court’s finding that Bailey knowingly and voluntarily
waived his Fifth Amendment rights when he gave his detailed
confession to the police. Thus, the trial court’s denial of
Bailey’s suppression motion was not error.
F. Jury Instructions and Sentencing Form
In his sixteenth assignment of error, Bailey contends that
the trial court erred during the guilt-determination phase in
giving separate instructions proffered by the Commonwealth
defining capital murder as the killing of more than one person
as a part of the same act or transaction, Code § 18.2-31(7), and
capital murder as the killing of a person under the age of
fourteen by a person age twenty-one or older, Code § 18.2-
31(12). Bailey contends that the instructions were confusing in
that they implied to the jury that “it might convict Bailey of
capital murder twice, even though Bailey had only been indicted
on a single count of capital murder, which set forth
35
disjunctively the two grounds for the capital murder charge.”
The Commonwealth contends that the indictment was worded to
permit convictions for two offenses of capital murder. We agree
with the Commonwealth.
In Payne v. Commonwealth, 257 Va. 216, 509 S.E.2d 293
(1999), the defendant was charged in separate indictments with
two offenses of capital murder of one victim. 5 We held that “it
is clear, as well as logical, that the General Assembly intended
for each statutory offense [in Code § 18.2-31] to be punished
separately ‘as a Class 1 felony.’” Id. at 228, 509 S.E.2d at
301. In this case, two offenses of capital murder were charged
in a single indictment. This distinction from Payne does not,
however, preclude the conclusion that the indictment charged two
capital murder offenses upon which Bailey could be convicted and
sentenced.
A single indictment may charge “[t]wo or more offenses
. . . if the offenses are based on the same act or transaction.”
Rule 3A:6. Contrary to Bailey’s assertion, the indictment for
the capital murder of Nathan does not charge two offenses of
capital murder exclusively in the disjunctive. Rather, the
5
In Payne, the Court consolidated two separate capital
murder appeals. In both instances, however, there were multiple
indictments charging the defendant with two counts of capital
murder of one victim.
36
indictment clearly charges that the killing occurred as part of
the same act or transaction as the killing of Katherine “and/or”
as the killing of a person under the age of fourteen by a person
age twenty-one or older. Thus, here, as in Payne, the
Commonwealth was entitled to seek a separate conviction and
death sentence on each offense of capital murder charged in the
indictment.
In his seventeenth assignment of error, Bailey contends
that the trial court erred in presenting the jury with verdict
forms in the penalty-determination phase that “were inherently
confusing and led to a substantial risk of an unreasoned and
hence arbitrary and capricious jury verdict.” Bailey contends
that this is so because the verdict forms set out three
alternative theories under which the jury might find that the
“vileness” predicate would apply.
The Commonwealth contends that because Bailey proffered no
alternative verdict forms, he is deemed to have waived his
objection to the forms used by the trial court. Cf. Atkins v.
Commonwealth, 257 Va. 160, 178 n.8, 510 S.E.2d 445, 456 n.8
(1999). However, unlike the circumstance in Atkins, where we
held that a proffer of alternative verdict forms was sufficient
to preserve an objection even though there was no express
objection to the improper verdict forms proffered by the
37
Commonwealth, here there is an express objection on the record.
When a principle of law is materially vital to the defendant in
a criminal case, it is reversible error for the trial court to
fail to correct a defective instruction or verdict form when the
error is patent or the subject of a proper objection. Id. at
178, 510 S.E.2d at 456; accord Whaley v. Commonwealth, 214 Va.
353, 355-56, 200 S.E.2d 556, 558 (1973); Bryant v. Commonwealth,
216 Va. 390, 392-93, 219 S.E.2d 669, 671-72 (1975). Thus,
although the better practice would have been for Bailey to
proffer alternative verdict forms, he was not required to do so
in order to preserve his objection.
We agree with the Commonwealth, however, that the verdict
forms in this case were not confusing and did not misstate the
law. The verdict forms merely recited the alternative findings
the jury might make in reaching its sentencing decision. Thus,
unlike the situation in Atkins, the trial court’s instructions
on sentencing and the verdict forms were in accord with and
correctly reflected the law.
G. Sufficiency of the Evidence
In his ninth assignment of error, Bailey contends that the
trial court erred in failing to strike the Commonwealth’s
evidence presented during the guilt-determination phase with
respect to the capital murder charges arising from the killing
38
of Nathan. He asserts that the Commonwealth’s evidence was
insufficient to show that he acted with premeditation in that
killing. In the appeal of his related convictions, Bailey
further contends that the evidence was insufficient to support
his conviction for the first-degree murder of Katherine,
asserting that the evidence showed that he was “emotionally
distraught” and “acted impulsively and without malice.” 6 We
disagree.
The question of premeditation is a question to be
determined by the fact-finder. Peterson v. Commonwealth, 225
Va. 289, 295, 302 S.E.2d 520, 524, cert. denied, 464 U.S. 865
(1983). “To establish premeditation, the intent to kill need
only exist for a moment.” Id.
The evidence showed that Bailey acquired the murder weapon
several weeks in advance of the killings and made elaborate
efforts over several months to deflect future suspicion from
himself. From this evidence alone, there can be no doubt that
the murder of Katherine was deliberate and premeditated.
Even accepting Bailey’s contention that initially he had
not considered the impact of Katherine’s murder on his son and
6
This is the only assignment of error in the noncapital
appeal that is not duplicated by an assignment of error raised
in the capital appeal. See note 1, supra.
39
had not intended to kill him also, the record, including
Bailey’s own statement, shows that his decision to kill his son
was not a sudden impulsive act, as he contends. Rather, the
record shows that he took deliberate action after contemplation,
however brief. The evidence in this case is closely on point
with that in Stewart v. Commonwealth, 245 Va. 222, 427 S.E.2d
394, cert. denied, 510 U.S. 848 (1993), where the defendant was
convicted of killing his estranged wife and their infant son.
In Stewart, we said that “evidence that a weapon was placed
against a victim’s head when the fatal shot was fired . . . is
sufficient alone to support a finding that ‘the shot was fired
deliberately and with premeditation.’” Id. at 240, 427 S.E.2d
406 (citation omitted). The record in this case shows that
Bailey went to Nathan’s bedroom and shot the child twice in the
head at close range. This evidence was sufficient for the jury
to determine that the killing of Nathan was a deliberate and
premeditated act.
In his eighteenth assignment of error, Bailey contends that
the trial court erred in failing to set aside the death
sentences imposed by the jury on the ground that there was
insufficient evidence of vileness in the killing of Nathan. We
disagree.
40
Bailey premises his argument on this issue on his
contention that the killing of Nathan was an impulsive act of
misguided compassion. We have already rejected this contention,
finding that there was sufficient evidence of premeditation even
under Bailey’s self-serving characterization of the events.
Similarly, we find sufficient evidence in the record to support
the Commonwealth’s contention that the killing of Nathan was
committed in the course of an aggravated battery and with
depravity of mind. Cf. Walker, 258 Va. at 72, 515 S.E.2d at 575
(multiple gunshot wounds establish aggravated battery); Stewart,
245 Va. at 246, 427 S.E.2d at 409 (manner of killing and
attempts to disguise crime reflect depravity of mind).
H. Sentence Review
In his nineteenth assignment of error, Bailey contends that
the trial court erred in failing to set aside the two death
sentences on the ground that they were “excessive and
disproportionate” and “imposed under the influence of passion,
prejudice, and other arbitrary factors.” These contentions are
reflective of the requirements of Code § 17.1-313(C)(1) that we
determine “[w]hether the sentence of death was imposed under the
influence of passion, prejudice or any other arbitrary factor”
and Code § 17.1-313(C)(2) that we determine “[w]hether the
sentence of death is excessive or disproportionate to the
41
penalty imposed in similar cases, considering both the crime and
the defendant.” Accordingly, we will address Bailey’s
assignment of error and conduct the review required by statute
jointly.
Bailey contends that the death sentences were excessive and
disproportionate because the evidence showed that the capital
murder of Nathan did not involve torture or a predicate felony,
and that death was instantaneous. He further contends that “it
was an impulsive killing with a gun, indistinguishable from
literally thousands of gun-related killings across the country
where the punishment is a term of imprisonment rather than
death.” We disagree.
Without giving any credence to Bailey’s unsupported
assertion that there are “literally thousands” of similar
murders committed in this country, we may nonetheless
distinguish this crime on several grounds from the type of
impulsive killings to which Bailey alludes. The forensic
evidence that Nathan’s wounds resulted from an “execution-style”
shooting rebuts Bailey’s claim that the killing was impulsive.
Moreover, the evidence amply supports the conclusion that Bailey
planned this killing along with the killing of Katherine and
that he took elaborate steps to deflect suspicion from himself.
42
We have examined the records of all capital murder cases
reviewed by this Court, including those cases in which a life
sentence was imposed. We have given particular attention to
those cases in which, as here, the death penalty was based on
the “vileness” predicate alone. Based on this review, we
conclude that Bailey’s death sentences are not excessive or
disproportionate to penalties generally imposed by other
sentencing bodies in the Commonwealth for comparable crimes.
See, e.g., Stewart, 245 Va. at 247, 427 S.E.2d at 410; Davidson
v. Commonwealth, 244 Va. 129, 136, 419 S.E.2d 656, 660, cert.
denied, 506 U.S. 959 (1992); Buchanan, 238 Va. at 418, 384
S.E.2d at 774.
Bailey makes no particularized argument that the death
sentences were imposed under the influence of passion,
prejudice, or other arbitrary factors. However, within his
argument on disproportionality, Bailey contends that “the jury’s
passions and prejudice had been inflamed by the mere fact that
the killing involved a two-year-old boy.” Assuming this
statement is intended to address the review required by Code
§ 17.1-313(C)(1), it is merely conclusory and we find nothing in
the record to support it.
Undeniably, the killing of one’s own child is among the
most abhorrent crimes for a jury to contemplate when considering
43
an appropriate sentence, especially when, as here, that crime
occurs in conjunction with the equally abhorrent crime of the
killing of one’s wife. Nonetheless, the mere fact that a crime
is abhorrent does not raise a presumption that the jury will be
unable to set aside its natural emotions and fairly consider all
the evidence. Our review of this record does not disclose that
the jury failed to give fair consideration to all the evidence
both in favor and in mitigation of the death sentences, and we
find nothing in this record which suggests that the jury, or the
trial court in reviewing the verdicts, imposed the death
sentences under the influence of passion, prejudice, or other
arbitrary factors.
CONCLUSION
Having reviewed the capital murder convictions, the death
sentences imposed thereon, and the related convictions and
sentences for first-degree murder and the firearm charges, we
find no reversible error in the record, and perceive no reason
to commute the death sentences. For these reasons, we will
affirm the judgment of the trial court.
Record No. 992840 — Affirmed.
Record No. 000151 — Affirmed.
44