ProDeathPenalty.com

In 1999, it took just over an hour for a jury to find Mark Wesley Bailey guilty of capital murder and 1st-degree murder in the shooting deaths of his wife and 2-1/2-year-old son. Bailey, who showed no emotion during the reading of the verdicts, was found guilty of 2 counts of capital murder, both in connection with the Sept. 10, 1998, death of his son, Nathan Bailey. The jury found that Nathan's death was a "willful, deliberate and premeditated killing" that took place as part of the same act as the killing moments before of Bailey's wife, Katherine.

The 2nd count was brought under a statute that states capital murder can be charged when the victim is under 14 and the killer is 21 or older. Bailey was charged with first-degree murder in Katherine's death and faces 20 years to life on that count. He was also found guilty of the use of a firearm while committing each of the killings, adding 8 more years.

The defense didn't dispute that Bailey committed the murders or that he'd intended to kill Katherine. "The plan of Mark Bailey to kill his wife, Katie, is clearly shown," Attorney George M. Rogers III said in his closing remarks. But Nathan's death was not planned, he said. "You haven't heard anybody in this courtroom say that," Rogers said. "The evidence has not said at all that he planned to kill Nathan." Rogers said the lack of planning was clearly shown in Bailey's videotaped confession to police.

Armed with a .22-caliber pistol that morning, Bailey said he walked into his bedroom at the family's Grimes Road home three times before finally firing 3 shots into his wife's head. Even though he'd balked twice before killing her, he'd planned the act for days, he admitted to police. But then he heard Nathan stirring in his room across the hall. Bailey walked into his room. "He was waking up, stepping out of bed," Bailey said on the tape. "Next thing you know, I put two shots into him, too." At this point, Bailey broke down. "I said, 'I'm sorry,' " he sobbed. "Now my son's gone."

During a separate confession the day of the killings, Hampton police asked why he had shot his son. Bailey wrote, "I was scared that he would walk in and see his mom. I didn't know what else to do." During his taped confession, Bailey also expressed his frustration and anger over his deteriorating marriage and what he said was his late wife's unfaithfulness and iron grip on his life. "I wanted my family back," he said. "The only thing I wanted in my life was my boy." He told police, "I guess this morning I just lost it."

But Bailey did plan it, Commonwealth's Attorney Linda Curtis argued. She said he'd been "thinking" about killing his wife for several days and tried to cover the crime by repeatedly telling a Navy co-worker that his wife had received threatening notes." And while a finding of premeditation means a plan had been hatched to commit the crime, such a plan "need not exist for any length of time." It doesn't matter, she said, "that his plan for killing Katherine was longer than his plan to kill Nathan. "Remember the image of that child," Curtis said, "trying to get out of that bed. That's all the premeditation you need. "We know he planned it."

Bailey v. Commonwealth, 529 S.E.2d 570 (Va. 2000) (Direct Appeal).

Defendant was convicted in the Circuit Court, City of Hampton, Walter J. Ford, J., of capital murder and first-degree murder arising from shooting deaths of his wife and two-year-old son, and was sentenced to death. Defendant appealed. The Supreme Court, Koontz, J., held that: (1) adequate foundation was laid for admission of crime scene photographs; (2) statutory scheme for conduct of capital murder trials and review of death sentences does not violate due process; (3) defendant was not "in custody" for Miranda purposes when he gave initial confession at police station; (4) post-Miranda confession was not a result of police coercion; (5) single indictment was worded to permit convictions for two offenses of capital murder; (6) evidence was sufficient to support convictions; and (7) death sentences were appropriate. Affirmed.

KOONTZ, Justice.

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.

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, 117 S.Ct. 972, 136 L.Ed.2d 856 (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.

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 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 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 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."

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 of the use of a firearm in each of the two killings, Code § 18.2-53.1.

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.

Orbe v. True, 201 F.Supp.2d 671 (E.D.Va. 2002) (Habeas).

State prisoner whose death sentence upon capital murder conviction, affirmed at 258 Va. 390, 519 S.E.2d 808, was stayed to allow him opportunity to file habeas corpus petition filed two prepetition motions, seeking an order preserving all evidence relating to his conviction and sentence, and seeking leave to depose jurors at guilt-phase of murder trial. The District Court, Ellis, J., held that: (1) preservation order was not mandated by Constitution or Virginia law; (2) preservation order was not necessary to ensure proper administration of justice; (3) petitioner was not entitled to conduct prepetition discovery; and (4) even if such discovery were allowed, petitioner failed to show good cause to warrant leave to depose jurors. Motions denied.

Bailey v. True, 100 Fed. Appx. 128 (2004) (Habeas).

Background: After his murder convictions and death sentence were upheld on direct appeal, 259 Va. 723, 529 S.E.2d 570, petitioner sought federal habeas corpus relief. The United States District Court for the Eastern District of Virginia, Gerald Bruce Lee, J., dismissed petition. Petitioner appealed.

Holdings: The Court of Appeals held that: (1) counsel's acceptance of mental health professional's diagnosis of petitioner did not support claim of ineffective assistance of counsel, and (2) state supreme court's finding that medication was not responsible for petitioner's emotionless demeanor at trial was not unreasonable determination of the facts, and did not support habeas relief. Affirmed.

PER CURIAM:

In the early morning of September 10, 1998, Mark Wesley Bailey brutally murdered his wife, Katherine Bailey, and two-year-old son, Nathan Bailey, by shooting them both repeatedly through the head. See Bailey v. Commonwealth, 259 Va. 723, 529 S.E.2d 570, 573 (Va.2000). The murder was premeditated and committed in cold blood. As he later admitted to police, Bailey had, for several months leading up to the murders, fabricated stories that his wife had received threatening calls and notes, and related these stories with feigned concern to his coworkers. Id. After committing the murder, Bailey cut the bathroom screen window and the telephone line to the house to give the appearance of a break-in. Id. And, later that same morning, Bailey reported to work and attempted to act as if nothing had happened.

For this crime, Bailey was convicted in the Commonwealth of Virginia of two counts of capital murder and one count of murder in the first degree on July 21, 1999. He was sentenced to death three days later. Following an unsuccessful direct appeal of his conviction and sentence to the Virginia Supreme Court, see generally, id., Bailey sought relief from his sentence in state post-conviction proceedings.

On January 11, 2002, the Virginia Supreme Court, again, denied relief. Bailey filed a petition for a writ of habeas corpus in federal district court under 28 U.S.C. § 2254 on August 30, 2002. In his petition, Bailey alleged twelve independent constitutional errors in his conviction and sentence. The district court reviewed each of Bailey's claims, and, finding them to be meritless, dismissed Bailey's petition. Bailey then asked this court to issue a certificate of appealability, as required by 28 U.S.C. § 2253(c) , on ten of the claims he raised before the district court. We granted a certificate of appealability on two of the claims.

Having now carefully considered both claims, we affirm the order of the district court, dismissing Bailey's petition for a writ of habeas corpus.