Volume 252 — Virginia Reports

<italic>In this review of capital murder convictions and the imposition</italic><italic>of five death sentences for four murders, the sentence for</italic><italic>multiple homicide capital murder is vacated, but no other error</italic><italic>is found in the action of the trial court and no reason is found</italic><italic>to commute the four death sentences for capital murder during the</italic><italic>commission of robbery. The sentences were not imposed under the</italic><italic>influence of passion, prejudice or any other arbitrary factor and</italic><italic>are not excessive or disproportionate to the penalty imposed in</italic><italic>similar cases.</italic> <bold>Criminal Procedure — Criminal Law — Capital Murder — Future</bold><bold>Dangerousness — Multiple Homicide Capital Murder — Constitutional</bold><bold>Law — Double Jeopardy — Evidence — Jury Selection — Jury</bold><bold>Instructions — Mistrial</bold> The defendant and a friend entered a tavern before midnight and the defendant shot the owner, the cook, a waitress and, a customer each once in the head at close range. The next day the defendant was arrested on a public intoxication charge and, once in custody, was served with arrest warrants for the murders. He confessed to the killings, admitting that he and his friend had intended to rob the tavern and that she had taken approximately $400 from the cash register. In one indictment, the defendant was charged with robbery. use of a firearm in the commission of a robbery, and four separate counts of capital murder during the commission of murder, as well as four counts of use of a firearm in the commission of murder. In a second indictment, the defendant was charged with one count of multiple homicide capital murder based on the killing of the four victims as part of the same act or transaction. At the conclusion of the guilt phase of the trial, the jury convicted the defendant of all charges. At the conclusion of the penalty phase, the jury returned a verdict of five death sentences, based on a finding of both future dangerousness and vileness. The trial court entered judgment on the jury verdict. On appeal, forty assignments of error are made. 1. Because the defendant did not address in his brief the issues raised in certain of his assignments of error, he has waived those assignments of error under Rule 5:27. Also, another assignment of error was not made before the trial court and will not be considered on appeal. Rule 5:25.<page_number>Page 80</page_number> 2. The defendant raised a number of issues which have been rejected in previous decisions and, since there is no reason found to modify previously expressed views concerning those issues, the earlier decisions are reaffirmed. 3. The introduction of a videotape of a news interview the defendant gave to a local reporter was admissible as a party admission and, thus, not subject to exclusion under the hearsay rule. 4. It was not an abuse of discretion for the trial court to permit the jury to view a videotape of the crime scene in which two of the bodies had been moved from their original positions by emergency personnel because the trial court instructed the jury as to the fact. 5. Since the defendant had been informed that a particular person was a potential witness prior to trial, even if he had been informed only shortly before trial and that she would be called only during the penalty phase, the fact that she was called during the guilt phase was found by the trial court not to be so prejudicial as to require a mistrial. The decision whether an occurrence at trial is so prejudicial as to require a mistrial is a question of fact to be resolved by the trial court in each case and here there was no prejudice to the defendant. 6. The admission into evidence of photographs of the body of a murder victim is left to the sound discretion of the trial court and will be disturbed only upon a showing of a clear abuse of discretion; a graphic photograph is admissible so long as it is relevant and accurately portrays the scene of the crime. 7. A photograph which is verified by the testimony of a witness as fairly representing what the witness has observed is admissible in evidence and here the testimony was adequate to establish the authenticity of the representation of the photograph to which the defendant objected. 8. The granting of a mistrial is a matter within the trial courts discretion and it cannot be said that the trial court erred in determining that the Commonwealth's action in introducing the testimony of the defendants former wife regarding his propensity to extreme domestic violence was not so prejudicial as to warrant a mistrial. 9. While the arresting officer was aware that the defendant was being sought by the detective unit, the record adequately supports the trial courts finding that the officer had probable cause to arrest the defendant on a public intoxication charge and the defendant may not have his post-arrest statements suppressed on the ground that the arrest was pretextual. 10. There is no general right to discovery of witness statements, reports, or other memoranda possessed by the Commonwealth and because the requested documents were represented as containing no exculpatory material, the trial court properly denied the defendants requests for certain material. 11. During voir dire, the trial court permitted members of the venire to be asked whether they would automatically impose the death penalty no matter what the factors were and this inquiry was adequate to assure the removal of those jurors who would invariably impose capital punishment.<page_number>Page 81</page_number> 12. The trial courts decision whether to strike a juror for cause is a matter submitted to its discretion and will not be disturbed on appeal unless the refusal constitutes manifest error and, in the present case, the trial court had the opportunity to observe each jurors demeanor when evaluating his responses to the questions of counsel and the instructions of the court. Nothing in the record suggests that the trial court abused its discretion in refusing to strike these jurors for cause. 13. The evidence adduced against the defendant was overwhelming, precluding the possibility that any prejudice which might have resulted from the introduction into evidence of prior criminal history could have improperly influenced the jury's decision-making process and the introduction of the evidence was harmless beyond any reasonable doubt. 14. The trial court properly ruled that the defendant had been given an opportunity to interview the Commonwealth's firearms expert prior to trial and, since the portion of the expert's testimony to which the defendant objected was not part of the experts written report, those findings were not subject to disclosure under Rule 3A:11. 15. The trial court did not abuse its discretion in permitting the Commonwealth to recall a witness to correct or explain a factual misstatement in her prior testimony. 16. Nothing in the record indicates that the witness overheard the defendants attorneys conversation intentionally or surreptitiously, impinging on the attorney-client privilege, and the trial court did not err in permitting the witness to be recalled to the stand to correct her prior testimony. 17. When the commission of a crime has been fully confessed by the accused, only slight corroborative evidence is necessary to establish the corpus delicti and here the facts provide the necessary corroborative evidence that the crime of robbery had been committed; accordingly, the trial court did not err in failing to strike the robbery charge for lack of corroboration. 18. Because the Commonwealth sufficiently corroborated the corpus delicti of capital murder and the predicate felony of robbery, the trial court did not err in failing to strike the capital murder charges. 19. The evidence shows that the defendants guilt is not in question when the facts are viewed in a light favorable to the Commonwealth and the trial court properly denied the defendants motion to set aside the verdicts as contrary to the law and evidence. 20. Right following the commission of a crime is evidence of guilt and the jury may be so instructed. 21. Right includes taking any action, even of short duration, intended to disguise ones identity and distance oneself from the crime. Viewed in the light most favorable to the Commonwealth, the defendants overnight trip to North Carolina was taken with the purpose of concealing his identity as the perpetrator and constituted flight, and thus there was no error in the instruction given.<page_number>Page 82</page_number> 22. Even assuming that the Commonwealth's case, apart from the defendants confession, rests solely on circumstantial evidence, instructions given by the trial court adequately address the standard to be applied to circumstantial evidence. 23. The trial courts answer to a question about parole during jury deliberation on the punishment for the non-capital offenses was appropriate. 24. The defendant failed to establish and the record does not show that the defendant was parole ineligible and, therefore, <italic>Simmons v. South Carolina</italic>, <cross_reference>512 U.S. 154</cross_reference> (1994) does not apply. 25. Since the defendant failed to proffer the testimony about the accomplices remorse that he expected to elicit from the lead investigator when the trial court sustained the Commonwealth's objection to the cross-examination, the issue of the limited cross-examination will not be considered on appeal. 26. Generally, a defendant cannot be placed in jeopardy more than once for a single criminal act, but the state may, under one or multiple indictments, charge a defendant using multiple theories concerning the same crime or greater and lesser crimes arising out of the same act or transaction. In such cases, the prohibition against multiple prosecution double jeopardy does not apply so long as the defendant is arraigned and tried in a single proceeding where the accused cannot be subjected to more than one conviction and punishment for each discrete criminal act. 27. Here, each of the convictions for capital murder during the commission of a robbery may stand on its own, but since the conviction for multiple homicide capital murder is derivative of the other four, the conviction and the corresponding sentence for that crime is vacated. 28. Since there is no error found in the trial courts rulings, the contention that the sentence of death was imposed under the influence of passion, prejudice or other arbitrary factor is rejected. 29. An independent review of the entire record fails to disclose that the death sentences were imposed under the influence of passion, prejudice or any other arbitrary factor. 30. Considering the nature of the crime and the evidence presented during the guilt and penalty phases of the trial, it is concluded that juries in Virginia customarily impose the death sentence for conduct similar to that of the defendant.