Sheppard v. Commonwealth

Present: All the Justices

MARK A. SHEPPARD
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record Nos. 950760 November 3, 1995
and 950761

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge

On Sunday, November 28, 1993, Richard A. Rosenbluth and

Rebecca W. Rosenbluth, his wife, were murdered in their

Chesterfield County home. The police discovered their bodies

there two days later; multiple gunshot wounds were found in each

body. On December 3, 1993, near 5:00 a.m., defendant Mark A.

Sheppard was arrested in Henrico County after he was apprehended

while preparing to set fire to Mr. Rosenbluth's Nissan Pathfinder

motor vehicle.
Subsequently, defendant, age 23, was charged in nine

indictments as follows: three indictments for capital murder,

two indictments for robbery, and four indictments for using a

firearm in the commission of a felony. Two capital murder

indictments were based upon allegations of killing the

Rosenbluths during the commission of robbery. Code § 18.2-31(4).

The third indictment for capital murder was based on the charge

of killing Mr. Rosenbluth as part of the same act or transaction

as the killing of Mrs. Rosenbluth. Code § 18.2-31(7).

Prior to defendant's September 1994 trial, Andre L. Graham

was tried on charges of capital murder for the same offenses and

given a life sentence. See Graham v. Commonwealth, 250 Va. ___,
___ S.E.2d ___ (1995), decided today. Both men also were alleged

to have committed other violent crimes recently in the Richmond

Metropolitan Area. See, e.g., Graham v. Commonwealth, 250 Va.

79, 459 S.E.2d 97 (1995).

Following a six-day trial, a jury found defendant guilty of

all charges. The jury fixed his punishment at 20 years'

imprisonment on each of the robbery convictions and assessed a

total of 18 years' imprisonment for the four firearm convictions.
After a separate sentencing proceeding on the capital murder

convictions, the jury imposed two death sentences--one for

killing each of the victims--based upon the vileness and future

dangerousness predicates of the capital murder sentencing

statute. Code § 19.2-264.2. Subsequently, the trial court

considered a probation officer's report and, after a December

1994 hearing, sentenced defendant in accordance with the jury's

verdicts.

The death sentences are before us for automatic review under

Code § 17-110.1(A), see Rule 5:22, and we have consolidated this
review with defendant's appeal of the capital murder convictions.

Code § 17-110.1(F). In addition, by order entered in April

1995, we have certified the appeals of the noncapital convictions

from the Court of Appeals; the effect of the certification is to

transfer jurisdiction over the noncapital appeals to this Court

for all purposes. Code § 17-116.06(A). We have consolidated

those appeals (Record No. 950761) with the appeal of the capital

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murders (Record No. 950760).

The defendant does not assign error attacking the noncapital

convictions. Additionally, he does not ask us to reverse those

convictions. Therefore, we will make no further specific

reference to the validity of those convictions, and they will be

affirmed.

In accordance with settled principles of appellate review,

we shall consider the facts relating to the capital murder

convictions in the light most favorable to the Commonwealth,

which prevailed below.
When the victims' bodies were discovered in their home on

Tuesday, November 30, 1993, the house had been ransacked, but

there was no sign of forced entry into the residence. Many items

of the couple's jewelry and other personal property, including

their two motor vehicles, were missing from the premises. The

victims were last seen alive at their home on the previous Sunday

morning.

The bodies were found in the den of the residence. Mr.

Rosenbluth, age 40, had sustained two gunshot wounds from "close

range." One gunshot entered the left eye and went into the

cranial cavity causing damage to the spinal cord and the brain.

The other gunshot entered the right side of the nose, went into

the cranial cavity, and damaged the brain. Both wounds were

lethal.

Mrs. Rosenbluth, age 35, had sustained four gunshot wounds

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to the head and neck region, also from close range. All her

wounds were "potentially lethal."

Expert testimony fixed the victims' time of death as between

24 to 48 hours prior to the discovery of their bodies. There was

no evidence of any "struggle" by the victims "prior to the shots

being fired." Autopsies revealed that the victims had ingested

alcohol and cocaine within hours of their deaths.

Both of the husband's gunshot wounds and two of his wife's

wounds were inflicted by a handgun that was linked to the

defendant, a .38 caliber revolver. The wife's other two wounds

were inflicted by a .45 caliber automatic handgun belonging to

Andre Graham. That weapon was found in the apartment of Graham's

girlfriend on December 3, the day Graham also was arrested after

having driven defendant to the site where the Rosenbluths'

Pathfinder vehicle was parked when defendant prepared to set fire

to it. Defendant's .38 caliber revolver has not been recovered.
In addition to ballistics evidence, other evidence linked

both defendant and Graham to the homicides. Defendant's

fingerprint was identified on a package of razor blades found on

the kitchen table in the victims' home when the bodies were

discovered. Many of the surfaces at the crime scene had been

"wiped clean" in an obvious effort by the assailants to "cover

their tracks" and obliterate fingerprints.

Also, on Monday and Tuesday following the murders, defendant

and Graham took the victims' two motor vehicles, the Pathfinder

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and a Honda sedan, to two body shops for estimates on repainting

the vehicles. On Wednesday, December 1, the Honda was found

parked near the apartment of Graham's girlfriend. During the

time after the murders and before his arrest, defendant had

possession of the Pathfinder vehicle at the Henrico County home

of his father, where defendant resided.

Additionally, during the period after the murders and before

their arrests, defendant and Graham possessed numerous articles

of the victims' personal property. Search of defendant's room at

his father's house following the arrest produced the victims'

stereo equipment, a piece of their luggage, and the license

plates from the Pathfinder. When arrested, defendant possessed

the wife's wrist watch and one of the husband's credit cards

issued to his employer.
The evidence demonstrated that defendant and Graham were

close friends involved in selling cocaine. Traces of cocaine,

and drug paraphernalia, were found in the den and kitchen when

the victims' bodies were discovered. The victims' personal

records showed that, during the several months immediately

preceding their deaths, the couple made substantial cash

withdrawals and credit card charges averaging hundreds of dollars

per day, apparently to support their addiction to the drug.

Also, the husband used credit cards to provide hotel rooms for

Graham in exchange for cocaine during that period.

The Commonwealth's theory of the case was that the defendant

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and Graham regularly sold cocaine to the victims. During the

weeks before the killings, it became increasingly apparent to

these drug dealers that the victims' funds were being depleted

rendering them unable to finance their habit. Finally, the

victims were murdered either because of unpaid drug debts or

because the assailants anticipated that, when the victims

eventually were arrested for possessing illegal drugs, they would

"point the finger" at defendant and Graham as their suppliers.

The Commonwealth contended that, after the assailants entered the

home to sell drugs to the victims, defendant shot the husband

twice while Graham shot the wife twice, and that defendant fired

two additional shots into the wife's head.
The defendant testified in his own defense, admitting he was

present in the victims' home at the time of the murders, which he

claimed occurred on Saturday, not Sunday. Defendant denied being

present in the den when the victims were shot, testifing that he

was "[i]nside the dining room sitting at the table" when the

homicides took place, and that Graham and one Benji Vaughan, a

friend of defendant and Graham, were in the den with the victims.

Defendant admitted having been armed with a ".380 automatic" at

the time of the shootings, and said he did not know the

whereabouts on the day of trial of the .38 caliber revolver,

which he owned previously.

On appeal, defendant assigns 28 alleged errors committed by

the trial court. Defendant has engaged in the improper

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procedural practice of altering the assignments of error between

the time they were originally filed pursuant to Rule 5:22(b) and

the time his appellate brief was filed. In this discussion, we

shall refer only to the original assignments of error found in

the appendix at pages 195-96.

The defendant has not briefed or argued four of those

assigned errors (Nos. 1, 20, 21, and 25); thus, we will not

consider them. Weeks v. Commonwealth, 248 Va. 460, 465, 450

S.E.2d 379, 383 (1994), cert. denied, ___ U.S. ___, ___ S.Ct. ___
(1995). The remaining assignments of error emphasized by the

defendant present questions dealing with the trial court's

removal of certain jurors for cause, the sufficiency of the

evidence to show that the defendant was the perpetrator of the

crimes, refusal of the trial court to advise the jury of the life

sentence imposed upon Graham for these crimes, admission of

evidence of unadjudicated crimes involving the defendant, and

sufficiency of the evidence to support the vileness and future

dangerousness predicates for the death sentences.

First, defendant contends the trial court improperly removed

for cause four prospective jurors. The defendant procedurally

defaulted the alleged improper exclusion of Winkfield F. Twyman

because defendant failed to object at trial to his exclusion.

Such a claim may not be raised on appeal for the first time.

Rule 5:25.

The trial court excluded prospective jurors Dennis F.

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Hasenfus and David Roberts based upon their voir dire responses

indicating they would be unable to impose a death sentence. For

example, Hasenfus stated repeatedly he could not impose the death

penalty unless the Commonwealth proved "beyond a shadow of a

doubt" that such punishment was "necessary." Roberts said, "I do

not think that I could vote to give the death penalty. I could

not."

Prospective juror Deborah C. Pruitt had been summoned as a

witness in a prior capital murder case tried in the court below

in which the defendant had been sentenced to death. She had not

testified in the case. During voir dire, she indicated that,

although she had not heard any of the testimony in the prior

case, she was not convinced the defendant in the prior case

actually was guilty as charged. Stating that Pruitt's views "are

somewhat alarming to me," the trial court excluded her.
Upon appellate review, we give deference to the trial

court's decision whether to exclude or retain a prospective juror

because the trial court "sees and hears the juror;" accordingly,

the trial court's ruling on this question will be disturbed only

upon a showing of manifest error. Eaton v. Commonwealth, 240 Va.

236, 246, 397 S.E.2d 385, 391 (1990), cert. denied, 502 U.S. 824

(1991) (quoting Wainwright v. Witt, 469 U.S. 412, 426 (1985));

Bennett v. Commonwealth, 236 Va. 448, 469, 374 S.E.2d 303, 316

(1988), cert. denied, 490 U.S. 1028 (1989). In the present case,

we find no manifest error in the trial court's decision to

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exclude Hasenfus, Roberts, and Pruitt.

Next, the defendant contends that the evidence was

insufficient to sustain his convictions for capital murder.

Defendant says he "does not contest the sufficiency of the

evidence on which the robbery convictions were based;" he "does

contest the sufficiency of evidence proving . . . that he was a

triggerman in the murder of the Rosenbluths and . . . that their

murders were committed in the course of a robbery." There is no

merit to this contention.
The Commonwealth has the burden to prove beyond a reasonable

doubt that one accused of capital murder was the actual

perpetrator of the crime. Suspicion of guilt, though strong, or

even a probability of guilt, is insufficient to support a

conviction. When, as here, the evidence is wholly

circumstantial, all necessary circumstances proved must be

consistent with guilt and inconsistent with innocence and exclude

every reasonable hypothesis of innocence. Rogers v.
Commonwealth, 242 Va. 307, 317, 410 S.E.2d 621, 627 (1991); Cheng

v. Commonwealth, 240 Va. 26, 42, 393 S.E.2d 599, 608 (1990).

But when conducting appellate review on this question of

fact, considering the evidence in the light most favorable to the

Commonwealth, we must grant the Commonwealth all reasonable

inferences from the facts proven, and the trial court's judgment

must be affirmed unless it is plainly wrong or without evidence

to support it. Beavers v. Commonwealth, 245 Va. 268, 281-82, 427

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S.E.2d 411, 421, cert. denied, ___ U.S. ___, 114 S.Ct. 171

(1993). And when, as here, the defendant has presented evidence

in his own behalf, after the trial court has denied his motion to

strike the evidence made at the conclusion of the prosecution's

case-in-chief, we consider the entire record to determine whether

the evidence was sufficient. Bunch v. Commonwealth, 225 Va. 423,

439, 304 S.E.2d 271, 280, cert. denied, 464 U.S. 977 (1983).

On November 22, six days before the murders, Benji Vaughan

and defendant were "playing around" at a local motel. Defendant

"had a pistol," accidently shot Vaughan once in the foot, and

transported him to a hospital where the wound was treated and the

bullet recovered. Expert testimony showed that the ".38 class"

bullet was fired from the same handgun later used to shoot the

Rosenbluths.
Three weeks earlier, on November 4, the general manager of a

local motel, who was also "a federally licensed gun dealer,"

accompanied police officers to a room occupied by defendant and

Graham following a report that "two individuals in the room were

armed." Defendant claimed ownership of a "chrome or nickel-

plated revolver, . . . a .38 or a .357 magnum."

On a day "before Thanksgiving" in the bedroom occupied by

defendant, his father observed "a silver shiny looking gun, maybe

about 8 inches long." The father ordered defendant to remove the

weapon from the home.

The defendant "concedes" that the evidence is sufficient to

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prove that the "lost weapon was the same weapon which wounded

Benji Vaughan." Nevertheless, he contends that "the evidence

does not put the gun in his hands on the date of the Rosenbluths'

murders." As the Attorney General argues, this contention

ignores the state of the evidence touching this issue.

The defendant elected to testify, admitting that he was

present in the victims' home when they were shot but denying that

he shot either victim. He suggested in his testimony that

Vaughan was Graham's accomplice in the murders. Defendant

testified that the revolver used to shoot Vaughan actually

belonged to Vaughan and that Vaughan retained possession of the

handgun after the accidental shooting. Defendant admitted he was

armed when he went to the victims' home on the day in question,

but claimed he was carrying a .380 caliber automatic. When asked

on cross-examination the whereabouts of that weapon, defendant

said his brother "has it" and that he had not asked the brother

to produce the weapon at the trial. Defendant also admitted

participating in the theft of the victims' property, as well as

in the attempts to dispose of or destroy their motor vehicles.
But Vaughan also testified at trial, subpoenaed as a witness

by the prosecution. He denied any involvement in the murders,

stating he did not know the location of the victims' home.

Additionally, Vaughan denied that he owned or possessed, either

before or after the accident, the revolver with which defendant

shot him.

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 Therefore, the conflicting testimony on whether defendant

was the actual perpetrator of the murders presented a credibility

question for the jury to resolve. Obviously, the jury in

weighing the evidence refused to accept defendant's denial of

guilt.

"Discarding the evidence of the accused in conflict with

that of the Commonwealth, we must regard as true the

Commonwealth's evidence and all fair inferences to be drawn

therefrom." Toler v. Commonwealth, 188 Va. 774, 782, 51 S.E.2d

210, 214 (1949). The defendant's contradictory statements

"furnish bases for reasonable inferences that his explanations

were made falsely in an effort to conceal his guilt." Id.

Indeed, on cross-examination defendant stated he was fully aware

that to be convicted of capital murder, the Commonwealth was

required to prove "without a reasonable doubt that I was the

triggerman."

Thus, the facts established by the evidence that the jury

was entitled to accept on this issue are as follows. Six days

prior to the homicides, the defendant owned and had in his

possession the very weapon used to kill the victims. He was

physically present in the victims' home and armed at the time of

the shootings. By his own admission, he was armed with a handgun

similar to the one used to shoot the victims. Yet, he failed to

produce that weapon, even though it was in possession, he

claimed, of a near relative. On the day of the crimes, neither

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Vaughan, nor any other person, had possession of the .38 caliber

revolver owned by defendant. The logical and legitimate

inference from these facts and the other evidence is that

defendant used his .38 caliber revolver to shoot both victims.

"The facts, accepted by the jury, admitted of inferences of

guilt more probable and natural than of any reasonable hypothesis

of innocence, and warranted the jury in rejecting [defendant's]

explanations as untrue. In other words, the facts established

are consistent with his guilt and inconsistent with his

innocence." Id. Accordingly, we cannot say the finding that

defendant was the perpetrator of the murders is plainly wrong or

without evidence to support it. Parenthetically, there is no

merit to defendant's contention that the evidence is insufficient

to prove the murders were committed in the course of a robbery.

This case is unlike Rogers and Cheng, in which we reversed

capital murder convictions because the Commonwealth failed to

establish the respective defendants were the perpetrators of the

crimes. Importantly, the defendant in neither case testified in

an attempt to conceal his guilt.

Also, in Rogers, we said that the "significant weakness in
the Commonwealth's case is the lack of any evidence, direct or

circumstantial, which places the murder weapon in defendant's

hands." 242 Va. at 319, 410 S.E.2d at 628. We pointed out that

the defendant's fingerprints were not on the murder weapon, a

knife, and said "there is no evidence which, by legitimate

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inference or otherwise, places the knife in his possession at any

time." Id. Here, in contrast, the firearm used to shoot these

victims was in defendant's exclusive possession at material times

prior to the killings.

Also, in Cheng, unlike the present case, the evidence was

inconclusive on the question whether the defendant was directly

involved with the crimes. 240 Va. at 43, 393 S.E.2d at 608. We

held the jury was not justified in inferring that defendant fired

the fatal shots, "especially when there were three known

participants in the crimes." Id. In the present case, however,

the evidence is clear that defendant directly participated in the

crimes by virtue of his admitted presence at the crime scene

armed with a deadly weapon. Even though there was another known

participant in these crimes, the ballistics evidence establishes

the precise participation of defendant, who shot both victims

with his own handgun while Graham shot only one.

Next, defendant contends that the fact of Graham's life

sentence imposed for his participation in the instant crimes is

relevant to the jury's consideration of defendant's punishment,

and that the court below erred in denying his several motions to

present this evidence to the jury. In May 1994, Graham was

convicted of two charges of capital murder for the premeditated

killing of Mrs. Rosenbluth, two charges of robbery, and three

charges of using a firearm in the commission of a felony. He had

been indicted for the first-degree murder of Mr. Rosenbluth and

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using a firearm in the commission of that offense, but was

acquitted of those charges.

Graham was sentenced for the capital murder of Mrs.

Rosenbluth to life imprisonment and a fine of $100,000. Graham

v. Commonwealth, 250 Va. at ___, ___ S.E.2d at ___. Defendant

argues (inconsistently with his contention on the preceding

issue) that he and Graham "are equally culpable in the

Rosenbluths' murders." Therefore, he says, Graham's life

sentence for almost identical involvement in the same crimes is

relevant to defendant's punishment because it bears on the issue

of mitigation. We disagree.
In Coppola v. Commonwealth, 220 Va. 243, 257 S.E.2d 797

(1979), cert. denied, 444 U.S. 1103 (1980), we said, "Evidence as

to the result of another defendant's trial for the same crime is

irrelevant to the determination by the jury of the appropriate

punishment for the defendant whose sentence is being weighed."

Id. at 254, 257 S.E.2d at 805. We reasoned that, under the

applicable statute, this Court "is required to consider and

determine whether the sentence of death is excessive or

disproportionate to the penalty imposed in similar cases, but no

such responsibility is imposed upon the jury in the trial court."
Id. We said that the jury, during the sentencing phase of the

capital murder trial, "is required to consider evidence in

mitigation of the offense relevant to the defendant's past record

and the nature of his conduct in committing the crime," not the

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details of another defendant's sentence for the same crime. Id.

Next, defendant contends the trial court erred in allowing

the Commonwealth to present, during the penalty phase of the

trial, evidence of unadjudicated crimes involving the defendant.

The prosecution presented evidence tending to prove that

defendant participated during October 1993 in a robbery and

shooting at a local motel, and in another robbery in which there

was a murder and a maiming. The latter incident was the subject

of Graham's convictions reviewed in Graham v. Commonwealth,
supra, 250 Va. 79, 459 S.E.2d 97 (1995). Of course, evidence of

unadjudicated crimes is relevant to the future dangerousness

predicate of the capital sentencing statute, and not to the

vileness predicate. Spencer v. Commonwealth, 238 Va. 295, 317,

384 S.E.2d 785, 799 (1989), cert. denied, 493 U.S. 1093 (1990).

We do not reach this question for decision. The defendant

has failed to assign error to the jury's finding of future

dangerousness. See Rules 5:22(b); 5:17(c). Therefore, the

defendant will not be allowed to challenge the admission of any

evidence relevant to that predicate about which there is no claim

of invalidity.

Next, the defendant argues that the evidence was

insufficient to sustain the jury's finding of vileness. He says

"the record is absolutely silent as [to] the existence of any

physical or psychological torture. Aside from the shots that

killed them, the Rosenbluths suffered no wounds or mutilation.

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There were no other signs of physical or mental abuse. The

record supports only the finding that they were killed almost

instantly and within seconds of each other." We conclude that

the finding was amply supported by the evidence.

Code § 19.2-264.2 provides that the death penalty shall not

be imposed unless the fact finder determines either that the

defendant, based on his criminal record, would be "a continuing

serious threat to society," the future dangerousness predicate,

or that the defendant's "conduct in committing the offense . . .

was outrageously or wantonly vile, horrible or inhuman in that it

involved . . . depravity of mind or an aggravated battery to the

victim," the vileness predicate. Executing two persons in their

home and then stripping their bodies of jewelry and stealing

their personal property manifestly demonstrates a depravity of

mind.
Within the context of the statute, the term "aggravated

battery" means "a battery which, qualitatively and

quantitatively, is more culpable than the minimum necessary to

accomplish an act of murder." Smith v. Commonwealth, 219 Va.

455, 478, 248 S.E.2d 135, 149 (1978), cert. denied, 441 U.S. 967

(1979). A killing inflicted by multiple gunshot wounds may

constitute an aggravated battery when there is an appreciable

lapse of time between the first shot and the last, and when death

does not result instantaneously from the first. Barnes v.
Commonwealth, 234 Va. 130, 139-40, 360 S.E.2d 196, 203 (1987),

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cert. denied, 484 U.S. 1036 (1988).

In the present case, the jury reasonably could have found

that each victim died from an aggravated battery. The evidence

supports the finding that defendant shot the husband in the face

while he was sitting or standing, walked to where the victim had

fallen on his back and shot him again in the face. The defendant

then walked over to the wife, who already had been shot by

Graham, and fired two more bullets into her head. Therefore,

there was an appreciable lapse of time between the two shots

fired by defendant at the husband, as well as between the shots

fired at the wife by Graham and the defendant. The evidence

showed that seconds elapsed between the first shots to each

victim and the last. Thus, neither died "instantaneously." And,

the evidence also showed that neither victim died

"instantaneously" from the first gunshot wounds.
The remaining assignments of error do not merit extended

discussion. In assignment of error No. 2, the defendant argues

the trial court improperly refused to allow three questions on

voir dire regarding the nature and definition of "mitigation" as

the term relates to punishment in a capital murder proceeding.

He says the trial court's action "rendered his trial

fundamentally unfair and deprived him of due process required by

the 14th Amendment." No constitutional objection was made in the

trial court, and we shall not permit it to be raised for the

first time on appeal. Rule 5:25. Additionally, we hold that the

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trial court did not abuse its discretion in refusing the

proffered questions on "mitigation."

In assignment of error No. 7, defendant asserts the trial

court improperly denied his motion to suppress evidence found in

"defendant's home." It will be recalled that defendant occupied

a room in his father's residence. The evidence showed that the

father consented to the search of the room and that, at the very

least, the father, the owner of the premises, had a joint right

of possession in the premises. Thus, the police properly relied

on the owner's consent to search. O'Dell v. Commonwealth, 234

Va. 672, 682, 364 S.E.2d 491, 496, cert. denied, 488 U.S. 871

(1988).

In assignment of error No. 28, the defendant contends the

trial court improperly failed to grant his tendered instruction

that would have allowed the jury to find defendant guilty as an

accessory after the fact. Defendant argues the jury could have

determined from the evidence that he was not involved in the

actual homicides but aided and abetted Graham and Vaughan "in

their get away from the scene and assisted them in concealing

their crime." The trial court properly refused the instruction.

Even if we assume such a theory was supported by the evidence,

the form of the instruction was flawed. It failed to set forth

an essential element of the law with respect to accessories after

the fact, that is, the felony must be completed for the principle

to apply. See Manley v. Commonwealth, 222 Va. 642, 645, 283

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S.E.2d 207, 208 (1981).

In assignment of error No. 12, defendant contends the trial

court incorrectly allowed the jury to view the victim of the

maiming that occurred in one of the prior crimes in which

defendant allegedly participated. The victim, suffering from

permanent brain damage, was permitted to walk into the courtroom

and leave. This demonstration, connected with an unadjudicated

crime, was relevant to the future dangerousness predicate. As we

already have said, the defendant failed to assign error attacking

that finding, and he will not be permitted to challenge

demonstrative evidence relevant to that predicate.
In assignment of error No. 13, defendant contends the trial

court incorrectly permitted one Maurice Turner, a penitentiary

inmate who met defendant in jail, to testify during the penalty

phase of the trial. Turner's testimony concerned defendant's

violent conduct in jail and certain admissions defendant made

about his participation in crimes in the Richmond area. This

action by the trial court, according to the defendant, violated

"the 8th and 14th Amendments of the United States Constitution."

These constitutional claims were not raised at trial, and we

will not entertain them for the first time on appeal. Rule 5:25.

Additionally, this contention also deals with evidence relevant

to the future dangerousness finding, which may not be attacked

because of the procedural default previously discussed.

Likewise, defendant's claim in assignment of error No. 16

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that the trial court incorrectly denied his "motion for a new

sentencing hearing for deprivation of individualized

consideration," is procedurally barred because it relates to the

evidence of unadjudicated crimes, which is barred from attack due

to failure to assign error to the future dangerousness finding.

The defendant, in an obscure argument, says he was not afforded

"individualized consideration" because the "jury received no

guidance as [to] the manner in which the evidence of

unadjudicated crimes should be considered."
We repeatedly have rejected the challenge that defendant

makes in assignment of error No. 17 that the terms "vileness" and

"depravity of mind," used in the capital sentencing scheme, are

unconstitutionally vague. See, e.g., Stockton v. Commonwealth,

227 Va. 124, 134-35, 314 S.E.2d 371, 378, cert. denied, 469 U.S.

873 (1984). Thus, we reject it here.

In assignment of error No. 19, the defendant contends that

the trial court improperly denied his request for a new

sentencing proceeding based upon the prosecutor's alleged failure

to inform defendant of exculpatory evidence. The defendant

complains that the Commonwealth failed to disclose that the

maiming victim had been unable to identify defendant as a

participant in that prior crime. Again, this relates to the

future dangerousness predicate, and the validity of that finding

is immune from attack.

In assignments of error Nos. 22 and 23, defendant contends

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the prosecutor engaged in prejudicial argument during both the

guilt and penalty phases of the bifurcated proceeding. Defendant

asserts the prosecutor sought to shift the burden of proof during

the guilt phase and sought to inflame the jury during the penalty

phase. None of these claims was preserved for appellate review.

Errors assigned because of improper comments of the prosecutor

during argument "will not be considered on appeal unless an

accused timely moves for a cautionary instruction or for a

mistrial." Cheng, 240 Va. at 38, 393 S.E.2d at 606. In the

present case, these alleged errors were not preserved because the

defendant either did not object or move in a timely fashion for a

cautionary instruction or a mistrial.

Finally, in assignments of error Nos. 26 and 27, defendant

argues the trial court incorrectly allowed during the penalty

phase certain testimony of a criminologist, who testified that

defendant is "a dangerous, violent criminal." This issue is

barred from appellate review because the testimony relates to the

future dangerousness predicate, as we already have explained.

When death sentences are before us for automatic review, our

statute requires us to consider, not only the trial errors

enumerated by the defendant, but also whether the sentences to

death were imposed under the influence of passion, prejudice, or

any other arbitrary factor, and whether the sentences are

excessive or disproportionate to the penalty imposed in similar

cases. Code § 17-110.1(C). "On the question of excessiveness

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and disproportionality, we determine whether other sentencing

bodies in this jurisdiction generally impose the supreme penalty

for comparable or similar crimes, considering both the crime and

the defendant." Weeks, 248 Va. at 478, 450 S.E.2d at 391. In

making this determination, we consider records of all capital

murder cases reviewed by this Court, including cases where life

imprisonment has been imposed. Code § 17-110.1(E).

Previous cases in which the death sentence was imposed based

upon the vileness and future dangerousness predicates are

documented in Breard v. Commonwealth, 248 Va. 68, 89, 445 S.E.2d
670, 682, cert. denied, ___ U.S. ___, 115 S.Ct. 442 (1994).

Based upon a review of these cases, we conclude that the death

sentences in this case are not excessive or disproportionate to

the punishment generally imposed by juries in the Commonwealth

for similar conduct. And, we reject defendant's argument that

his punishment is excessive or disproportionate because Graham

received a life sentence arising from the same incident. We

consistently have rejected efforts by defendants to compare their

sentences with those received by confederates. Murphy v.

Commonwealth, 246 Va. 136, 145, 431 S.E.2d 48, 53, cert. denied,

___ U.S. ___, 114 S.Ct. 336 (1993).

Consequently, we hold that the trial court committed no

error, and we have independently determined from a review of the

entire record that the sentences of death were properly assessed.

Thus, the judgment of the trial court will be affirmed.
Record No. 950760 - Affirmed.

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 Record No. 950761 - Affirmed.

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