The eleventh shooting occurred in Bowie,
Maryland on October 6, 2002. Tanya Brown (“Tanya”) took Iran Brown
(“Brown”) to Tasker Middle School. As Brown was walking on the
sidewalk to the school, he was shot once in the chest by a bullet
from a high velocity rifle. Tanya decided not to wait for
emergency personnel and drove Brown to a health care center.
Brown's lungs were damaged, there was a large hole in his
diaphragm, the left lobe of his liver was damaged, and his stomach,
pancreas, and spleen were lacerated by bullet fragments. Surgeons
were able to save Brown's life and he spent eight weeks recovering
in the hospital.
Two eyewitnesses testified that they saw the
Caprice in the vicinity of Tasker Middle School the day before the
shooting and the morning of the shooting. One of these
eyewitnesses positively identified both Muhammad and Malvo in the
Caprice the morning of the shooting. They were seen in the Caprice
which was parked at an intersection with a line of sight to the
school. Following the shooting, police searched the surrounding
area and found a ballpoint pen and a shell casing in the woods
next to the school. The pen and shell casing were located in an
area that had been patted down like a hunting blind. This blind
offered a clear line of sight to the scene of the shooting. Tissue
samples from the pen matched Muhammad's DNA. The shell casing had
been fired by the Bushmaster rifle possessed by Muhammad when he
was arrested, and tests determined that the bullet fragments
recovered from Brown were fired from that rifle.
In the woods, police also found the first
communication from Muhammad and Malvo. A tarot card, the one for
death, was found with handwriting that stated, “Call me God.” On
the back of the card was handwriting that stated, “For you, Mr.
Police. Code: Call me God. Do not release to the Press.”
The twelfth shooting, discussed above, was the
murder of Dean Meyers in Manassas, Virginia on October 9, 2002.
The thirteenth shooting occurred in Massaponax,
Virginia on October 11, 2002. Kenneth Bridges (“Bridges”) was at
an Exxon gas station on Jefferson Davis Highway. He was shot once
in the chest by a bullet from a high velocity rifle. The bullet
damaged his lungs and heart, causing fatal internal injuries. Two
eyewitnesses testified that they saw the Caprice at or near the
Exxon station on the morning of the shooting. Ballistics tests
determined that the bullet fragments recovered from the Bridges
shooting were fired from the Bushmaster rifle possessed by
Muhammad when he was arrested.
The fourteenth shooting occurred in Falls
Church, Virginia on October 14, 2002. Linda Franklin (“Franklin”)
and her husband were shopping at a Home Depot store. As they
loaded their purchases in their car, Franklin was shot and killed
by a single bullet from a high velocity rifle. The bullet entered
the left side of her head, passed through her brain and skull, and
exited from the right side of her head. An off-duty police officer
testified that she saw Malvo driving the Caprice in the vicinity
of the shooting immediatelyafter it occurred. Tests determined
that bullet fragments recovered from the Franklin shooting were
fired from the Bushmaster rifle possessed by Muhammad when he was
arrested.
On October 15, the day after Franklin was
murdered, a Rockville, Maryland police dispatcher received a
telephone call in which the caller stated: Don't say anything,
just listen, we're the people who are causing the killings in your
area. Look on the tarot card, it says, “call me God, do not
release to press.” We've called you three times before trying to
set up negotiations. We've gotten no response. People have died.
The dispatcher attempted to transfer the call to the Sniper Task
Force, but the caller hung up.
Three days later, on October 18, Officer Derek
Baliles (“Officer Baliles”), a Montgomery County, Maryland Police
Information Officer, received a telephone call. The caller told
Officer Baliles to “shut up” and stated that he knew who was doing
the shootings, but wanted the police officer to verify some
information before he talked further. The caller told Officer
Baliles to verify information concerning a shooting at a liquor
store near “Ann Street.” The caller gave Officer Baliles the name
and telephone number of a police officer in Alabama. Officer
Baliles confirmed the shootings of Parker and Adams. The caller
called Officer Baliles again. Officer Baliles told him that he had
verified the information concerning the shootings of Parker and
Adams. The caller then said that he had to find more coins for the
call and had to find a telephone without surveillance and then
hung up.
The fifteenth shooting occurred in Ashland, Virginia on October
19, 2002. Jeffrey Hopper (“Hopper”) and his wife stopped in
Ashland to fuel their car and eat dinner. They left the restaurant
and were walking to their car when Hopper was shot in the abdomen.
Hopper survived the shooting, but underwent five surgeries to
repair his pancreas, stomach, kidneys, liver, diaphragm, and
intestines. In the woods near the shooting, police found a hunting-type
blind similar to the one found at the Brown shooting. At the blind,
police found a shell casing, a plastic sandwich bag attached to a
tree with a thumbtack at eye level that was decorated with
Halloween characters and self-adhesive stars, and a candy wrapper.
Tests determined that the shell casing and bullet fragments
recovered from the Hopper shooting came from the Bushmaster rifle
possessed by Muhammad when he was arrested. Surveillance
videotapes identified Muhammad in a Big Lots Store on October 19,
2002 near the shooting from which the plastic sandwich bag and
decorations were likely obtained. The candy wrapper contained both
Malvo's and Muhammad's DNA.
Police also found a handwritten message in the
plastic sandwich bag that read: For you Mr. Police. “Call me God.”
Do not release to the Press. We have tried to contact you to start
negotiation ... These people took our call for a Hoax or Joke, so
your failure to respond has cost you five lives. If stopping the
killing is more important than catching us now, then you will
accept our demand which are non-negotiable. (i) You will place ten
million dollar in Bank of america account ... We will have
unlimited withdrawl at any atm worldwide. You will activate the
bank account, credit card, and pin number. We will contact you at
Ponderosa Buffet, Ashland, Virginia, tel. # ... 6:00 am Sunday
Morning. You have until 9:00 a.m. Monday morning to complete
transaction. “Try to catch us withdrawing at least you will have
less body bags.” (ii) If trying to catch us now more important
then prepare you body bags. If we give you our word that is what
takes place. “Word is Bond.” P.S. Your children are not safe
anywhere at anytime.
The note was not found until after the deadline
had passed. The day after Hopper was shot at the Ponderosa, an FBI
agent operating the “Sniper Tip Line” received a call from a young
male who said, “Don't talk. Just listen. Call me God. I left a
message for you at the Ponderosa. I am trying to reach you at the
Ponderosa. Be there to take a call in ten minutes.”
On October 21, 2002, an FBI agent received a
call to the FBI negotiations team which had been re-routed from
the Ponderosa telephone number referenced in the note left after
the Hopper shooting. A recorded voice stated: Don't say anything.
Just listen. Dearest police, Call me God. Do not release to the
press. Five red stars. You have our terms. They are non-negotiable.
If you choose Option 1, you will hold a press conference stating
to the media that you believe you have caught the sniper like a
duck in a noose. Repeat every word exactly as you heard it. If you
choose Option 2, be sure to remember we will not deviate. P.S.-Your
children are not safe.
The sixteenth shooting occurred in Aspen Hill,
Maryland on October 22, 2002. At approximately 6:00 a.m., Conrad
Johnson (“Johnson”), a bus driver for the Montgomery County
Transit Authority, was shot in the chest at the entrance to his
bus. Johnson remained conscious until rescue workers arrived, but
died at the hospital. A single high velocity rifle bullet killed
Johnson. The bullet entered his right chest, and caused massive
damage to his diaphragm, liver, pancreas,kidneys, and intestines.
Tests determined that the bullet fragments recovered from the
Johnson shooting were fired from the Bushmaster rifle possessed by
Muhammad when he was arrested. A hunting-type blind, similar to
those found at the Brown and Hopper shootings, was found in the
woods near where Johnson was shot. A black duffle bag and a left-handed
glove were found. A hair from the duffle bag yielded DNA that
matched Muhammad's DNA. The police also found another plastic
sandwich bag which contained a note and self-adhesive stars.
Muhammad and Malvo were captured and arrested
on October 24, 2002, by agents of the FBI at a rest area in
Frederick County, Maryland. They were asleep in the Caprice at the
time of their capture. Inside the Caprice, police found a loaded
.223 caliber Bushmaster rifle behind the rear seat. Tests
determined that the DNA on the Bushmaster rifle matched the DNA of
both Malvo and Muhammad. The only fingerprints found on the
Bushmaster rifle were those of Malvo.
The Caprice had been modified after Muhammad
purchased it from O'Kupski. The windows were heavily tinted. The
rear seat was hinged, providing easy access to the trunk from the
passenger compartment. The trunk was spray-painted blue. A hole
had been cut into the trunk lid, just above the license plate. The
hole was blocked by a right-handed brown glove that matched the
left-handed glove found in the woods near the Johnson shooting.
The trunk also had a rubber seal that crossed over the hole.
Inside the Caprice, police found a global
positioning system (GPS) receiver, a magazine about rifles, an AT
& T telephone charge card, ear plugs, maps, plastic sandwich bags,
a rifle scope, .223 caliber ammunition, “walkie-talkies,” a
digital voice recorder, a receipt from a Baton Rouge, Louisiana
grocery store dated September 27, 2002, an electronic organizer, a
plastic bag from a Big Lots Store, a slip of paper containing the
Sniper Task Force phone number, and a list of schools in the
Baltimore area.
Police also found LaRuffa's portable computer
in the Caprice. Muhammad had loaded software entitled “Microsoft
Streets and Trips 2002” onto this computer on September 29, 2002.
In this program, there were various maps showing particular routes
and places marked with icons, some with a skull and crossbones.
Icons had been added to mark the places where Walekar, Lewis-Rivera,
Seawell, Brown, Meyers and Franklin were shot. There was also a
Microsoft Word file titled “Allah8.rtf” that contained portions of
the text communicated to police in the extortion demands.
B. Proceedings Below
Subsequent to his arrest on October 24, 2002,
Muhammad was indicted by a grand jury on October 28, 2002, for the
capital murder of Meyers in the commission of an act of terrorism,
Code §§ 18.2-31(13) and 18.2-46.4; capital murder of Meyers and at
least one other person within a three-year period, Code §
18.2-31(8); conspiracy to commit capital murder, Code §§ 18.2-22
and 18.2-32; and illegal use of a firearm in the commission of
capital murder, Code § 18.2-53.1.
Muhammad waived his right to a speedy trial on
November 13, 2002. Upon motion by Muhammad, and without objection
by the Commonwealth, venue was changed from the Circuit Court of
Prince William County to the Circuit Court of the City of Virginia
Beach.
From October 20 through November 17, 2003,
Muhammad was tried before a jury in the Circuit Court of the City
of Virginia Beach. The jury convicted Muhammad of all charges in
the grand jury indictments. In a separate sentencing proceeding
from November 17 through November 24, 2003, the jury sentenced
Muhammad to two death sentences for the capital murder convictions,
finding both the future dangerousness and vileness aggravating
factors. The jury also sentenced Muhammad to 13 years in prison
upon the remaining convictions. At the conclusion of the
sentencing proceeding, venue was transferred back to the Circuit
Court of Prince William County.
On March 9, 2004, the trial court imposed the
two death sentences and the sentences of imprisonment as fixed by
the jury. A final sentencing order was entered on March 29, 2004.
Muhammad noted appeals of his convictions. On May 7, 2004, this
Court certified Muhammad's appeals of his non-capital convictions
under Code § 17.1-409 for consolidation with the appeals of his
capital murder convictions and the review mandated by Code §
17.1-313.
We will recite additional facts and incidents
of trial as necessary in context as specific assignments of error
are considered.
II. Preliminary Issues
A. Issues Abandoned or Waived
Muhammad advances 102 assignments of error in
his appeal. The Commonwealth maintains that Muhammad failed to
sufficiently argue in his brief assignments of error 33, 34, 43,
45, 47, 52, 53, 68, 70, 78, 79, 80, 82, 83, 88, and 96. Rules
5:17(c)(4) and 5:27 require that a brief contain “[t]he principles
of law, the argument, and the authorities relating to each
assignment of error,” and further require that “[w]ith respect to
each assignment of error, the principles, the argument, and the
authorities shall be stated in one place and not scattered through
the petition.” In his reply brief, Muhammad contests the
Commonwealth's assertion only as to assignments of error 43, 52,
78, 79, 80, 81, and 83.FN2 Accordingly, assignments of error 33,
34, 45, 47, 53, 68, 70, 82, 88, and 96 are waived. Consequently,
we will consider only assignments of error 43, 52, 78, 79, 80 and
83 as being in controversy.
FN2. The Commonwealth did not claim that
Muhammad waived assignment of error 81.
Assignment of error 43 pertains to the
admission of crime scene and autopsy photographs. Assignment of
error 52 refers to testimony of Officer Cindy Martin concerning
her observations of “brain matter” at the scene of the Ramos
shooting. With respect to both of these assignments, there is
insufficient argument in the brief. Having been directed by
Muhammad to particular page citations where he claims to have
presented these arguments, we agree with the Commonwealth's
observation that Muhammad merely restates his assignment of error
and makes reference to pages in the appendix where his trial court
arguments can be found. We have previously held that such a
practice is improper and is insufficient to meet the requirements
of our Rules. Schmitt v. Commonwealth, 262 Va. 127, 138, 547 S.E.2d
186, 194 (2001), cert. denied, 534 U.S. 1094, 122 S.Ct. 840, 151
L.Ed.2d 719 (2002). Failure to adequately brief an assignment of
error is considered a waiver. Powell v. Commonwealth, 267 Va. 107,
135, 590 S.E.2d 537, 554, cert. denied, 543 U.S. 892, 125 S.Ct.
86, 160 L.Ed.2d 157 (2004). Therefore, assignments 43 and 52 are
deemed waived.
The remaining assignments of error claimed by
the Commonwealth to be waived by lack of argument pertain to
unadjudicated criminal conduct evidence presented at the
bifurcated sentencing proceeding. Assignment of error 78 refers to
evidence of the killing of Kenya Cook in Tacoma, Washington.
Assignment of error 79 refers to a shooting into Temple Beth El
Synagogue in Tacoma, Washington. Assignment of error 80 refers to
testimony about the presence of a .308 caliber rifle found
pointing to a particular apartment in Tacoma, Washington.
Assignment of error 83 refers to evidence of a sharpened spoon
handle in Muhammad's cell in the Prince William County jail.
For each of these assignments of error related
to unadjudicated criminal conduct, Muhammad cites pages in the
section of his brief entitled “Statement of Facts” and one page in
the “Argument” section of his brief. The references in the
“Statement of Facts” are to arguments made in the trial proceeding.
Even giving Muhammad the benefit of examining additional pages of
his brief not referred to as the location of his argument,
Muhammad does not make particularized arguments in his brief
concerning each of the categories of evidence he finds
objectionable, except for evidence of the alleged escape attempt
contained in assignment of error 81, which the Commonwealth agrees
was not waived. Assignments of error 80 and 83 raise issues of
lack of notice of presentation of unadjudicated criminal conduct;
however, there is no argument of the question in the brief itself.
Assignments of error 78, 79, 80, and 83 are not sufficiently
argued in the brief. We will not consider them. Rule 5:17(c)(4);
Rule 5:27; Elliott v. Commonwealth, 267 Va. 396, 422, 593 S.E.2d
270, 286 (2004), cert. denied, 543 U.S. 1081, 125 S.Ct. 875, 160
L.Ed.2d 825 (2005); Williams v. Commonwealth, 248 Va. 528, 537,
450 S.E.2d 365, 372 (1994), cert. denied, 515 U.S. 1161, 115 S.Ct.
2616, 132 L.Ed.2d 858 (1995).
B. Sufficiency of the Commonwealth's Capital
Murder Theories and of the Evidence to Support These Theories
We first address the dominant issue presented
in this case, namely the legal viability of the Commonwealth's
theories of capital murder and the sufficiency of the evidence to
support its theories. Muhammad's assignments of error 63-69,
71-74, 97, and 102, present these issues. We review questions of
law, and mixed questions of law and fact, utilizing a de novo
standard of review. Quatannens v. Tyrrell, 268 Va. 360, 365, 601
S.E.2d 616, 618 (2004), McCain v. Commonwealth, 261 Va. 483,
489-90, 545 S.E.2d 541, 545 (2001).
In accordance with established principles of
appellate review, we state the facts in the light most favorable
to the Commonwealth, the prevailing party in the trial court. We
also accord the Commonwealth the benefit of all inferences fairly
deducible from the evidence. Riner v. Commonwealth, 268 Va. 296,
303-04, 601 S.E.2d 555, 558-59 (2004), Armstrong v. Commonwealth,
263 Va. 573, 576, 562 S.E.2d 139, 140 (2002); Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
There is no distinction in the law between the
weight or value to be given to either direct or circumstantial
evidence. The finder of fact is entitled to consider all the
evidence, without distinction, in reaching its determination.
Commonwealth v. Hudson, 265 Va. 505, 512-13, 578 S.E.2d 781, 785,
cert. denied, 540 U.S. 972, 124 S.Ct. 444, 157 L.Ed.2d 322 (2003).
Circumstantial evidence is not viewed in isolation. While no
single piece of evidence may be sufficient, the combined force of
many concurrent and related circumstances, each insufficient in
itself, may lead a reasonable mind irresistibly to a conclusion.
Id. at 514, 578 S.E.2d at 786. We will set aside the judgment only
if it is clearly wrong or unsupported by the evidence. Powell v.
Commonwealth, 268 Va. 233, 236, 602 S.E.2d 119, 120-21 (2004).
The jury found Muhammad guilty of capital
murder under two separate provisions of Virginia law: Code §
18.2-31(8) for the “willful, deliberate, and premeditated killing
of more than one person within a three-year period;” and Code §
18.2-31(13) for the “willful, deliberate and premeditated killing
of any person by another in the commission of or attempted
commission of an act of terrorism.” Among the challenges made,
Muhammad argues that the trial court erred in permitting a legally
flawed “triggerman” theory to be presented to the jury as a result
of various rulings and instructions. Muhammad further argues that,
even under the Commonwealth's theory, the evidence was
insufficient to prove that he was the so-called “triggerman.” Also,
Muhammad challenges the sufficiency of the evidence to support his
capital murder conviction based upon acts of terrorism. His
constitutional challenges to the capital murder statute based upon
terrorism are addressed elsewhere in this opinion.
1. Capital Murder Conviction Based Upon Murder
of More Than One Person in Three Years
(a) Sniper Team Theory
The Commonwealth introduced the testimony of
Sergeant Major Mark Spicer (“Spicer”) of the British Armed Forces
as an expert in sniper methodology. His testimony and the direct
and circumstantial evidence presented to the jury are more than
sufficient to support, beyond a reasonable doubt, Muhammad's
conviction for the capital murder of Dean Meyers and others within
three years.
Spicer testified that “sniping is the ability
of two men to go out and inflict injuries or kill people and more
importantly spread terror across a much larger force.” While
acknowledging that a sniper can act alone or in a team of three,
he stated, “the basic unit for a sniper team ... is ... a two-man
unit.” Spicer testified at length about the distinct
responsibilities of each member of a two-man sniper unit.
Essentially, one member of the team is the long-range shooter
occupying an obscured position with the opportunity to shoot a
particular victim. Because of the intensity and discipline
required to take advantage of the narrow window of opportunity to
take the long-range shot, the other member of the team, the “spotter,”
informs the long-range shooter by radio that the victim is coming
within the zone of potential fire and that other circumstances are
ripe for the shot. The “spotter” may ultimately give the order to
shoot.
Spicer connected the evidence found by police
investigators in this case to the tools and methods ordinarily
used by a sniper team. The .223 caliber Bushmaster rifle used in
at least ten of the shootings, including Dean Meyers, is
equivalent to the M4 rifle used by military snipers. Additionally,
sniper teams use tools such as those found in the Caprice: a bipod
support system for support of the rifle; holographic and
telescopic scopes to aid sighting; GPS equipment to locate and
relocate a vantage point for the long-range shot; “walkie-talkie”
handheld radio sets for communication; pocket recording equipment
for recording data in the dark, bungee cords for easy “break down”
of the rifle for transportation; maps; silencers.
Spicer also testified about the methodology of
a sniper team which was supported by the evidence in this case.
Spicer emphasized the constant training with the rifle to maintain
skills, the creation of a camouflaged location for firing, the use
of existing traffic to facilitate escape, and the “team” approach
with a “spotter” who is armed with a handgun and may additionally
participate in the assault by firing from close range.
With regard to the Caprice, Spicer testified
about the alterations made to it to facilitate the methodology of
the sniper team. The rear firewall had been removed from the
Caprice to provide entry into the trunk from the passenger
compartment. The trunk compartment had been spray-painted a dark
color to minimize contrast and shadow to avoid detection in the
event the trunk was opened.
Finally, Spicer gave particular significance to
the peculiar hole placed in the back of the trunk lid that
enlarged the field of vision while minimizing the ability to see
the person in the trunk. He referred to this special process as
implementing the “castle principle” making reference to ancient
methods of protecting the castle while minimizing danger to the
shooter and maximizing the range of fire.
The Commonwealth presented compelling evidence
that such a sniper team methodology was used by Muhammad and Malvo
in multiple shootings prior to and after the murder of Dean Myers.
Perhaps no one or two incidents could reasonably confirm the use
of this methodology by the two perpetrators of this unique
criminal enterprise. But in its entirety, the weight of the direct
and circumstantial evidence in the case is sufficient to prove
that Muhammad and Malvo acted together as a sniper team.
(b) Jury Instructions on Multiple Homicide
Theory of Capital Murder
Muhammad was convicted under Code § 18.2-31(8),
of the willful, deliberate, and premeditated killing of Dean
Meyers and others within a three-year period. He maintains, “Only
the immediate perpetrator of a homicide, the one who fired the
fatal shot, and not an accessory before the fact or a principal in
the second degree, may be convicted of capital murder.” He claims
that under the Commonwealth's theory of the case, Muhammad could
never be the “triggerman” as defined in our cases.
It is well-established that in felony cases: A
principal in the first degree is the actual perpetrator of the
crime. A principal in the second degree, or an aider or abettor as
he is sometimes termed, is one who is present, actually or
constructively, assisting the perpetrator in the commission of the
crime. In order to make a person a principal in the second degree
actual participation in the commission of the crime is not
necessary. The test is whether or not he was encouraging, inciting,
or in some manner offering aid in the commission of the crime. If
he was present lending countenance, or otherwise aiding while
another did the act, he is an aider and abettor or principal in
the second degree. Jones v. Commonwealth, 208 Va. 370, 372-73, 157
S.E.2d 907, 909 (1967). A principal in the second degree “must
share the criminal intent of the actual perpetrator or be guilty
of some overt act.” Hall v. Commonwealth, 225 Va. 533, 536, 303
S.E.2d 903, 904 (1983). That there may be more than one principal
in the first degree for a particular offense is beyond dispute:
Where two people engage in criminal conduct
together, as where they participate in striking and killing
another, each participant is a principal in the first degree in
the homicide. Likewise, where part of a crime is committed in one
place and another part is committed in a different place, the
author of each part is a principal in the first degree. 1
Wharton's Criminal Law § 30 (15th ed.1993).
Generally in Virginia, a principal in the
second degree is subject to the same punishment as the principal
in the first degree. Taylor v. Commonwealth, 260 Va. 683, 687-88,
537 S.E.2d 592, 594 (2000). However, with the exception of capital
murder prosecutions for a killing for hire, or a killing pursuant
to the direction or order of one who is engaged in a continuing
criminal enterprise, or a killing pursuant to the direction or
order of one who is engaged in the commission of or attempted
commission of an act of terrorism, “an accessory before the fact
or principal in the second degree to a capital murder shall be
indicted, tried, convicted and punished as though the offense were
murder in the first degree.” Code § 18.2-18. Accordingly, pursuant
to the charge of capital murder based upon killing of two or more
persons within a three-year period, the Commonwealth must prove
that Muhammad was a principal in the first degree.
The euphemism, “triggerman,” is inadequate to
describe the breadth of criminal responsibility subject to the
death penalty in Virginia. Immediately and obviously, capital
murder cases are not confined to murders completed by the
instrumentality of a firearm. Recognizing this inadequacy, our
capital murder cases routinely use the term “immediate perpetrator”
as the appropriate descriptive term. The term is not new, having
been used as early as 1880 in our case law. Mitchell v.
Commonwealth, 74 Va. (33 Gratt.) 845, 868 (1880).
Muhammad argues in assignments of error 66 and
69 that the trial court erred in giving instructions 4 (capital
murder finding instruction) and 9 (defining principals in the
first and second degree), and further argues in assignments of
error 71 and 73 that the trial court erred in refusing to give his
proffered instruction J (concerning multiple killings) and L (concerning
the definition of a principal in the first and principal in the
second degree). Muhammad's quarrel with the instructions is a
function of his disagreement over the scope of the concept of
“immediate perpetrator” for the purposes of the capital murder
statutes. He further argues that the instructions at issue confuse
the concept of principal in the first degree with the requirements
of principal in the second degree and undermine the concept of
“aiding and abetting.”
Instruction 4 required Muhammad to be a
“princip[al] in the first degree, as defined in Instruction No. 9”
for the jury to convict for capital murder. The pertinent part of
Instruction 9 states: A principal in the first degree is the
immediate perpetrator of the offense. Where two or more persons
take a direct part in inflicting fatal injuries, each joint
participant is an immediate perpetrator for the purpose of proving
capital murder.
The principal in the second degree is a person
who is present, aiding and abetting, by helping in some way in the
commission of the crime. Presence and consent alone are not
sufficient to constitute aiding and abetting. It must be shown the
Defendant, John Allen Muhammad, intended his word, gestures,
signals or actions to in some way, encourage, advise or urge, or
in some way help the person committing the crime commit it ....
In Strickler v. Commonwealth, 241 Va. 482, 404
S.E.2d 227, cert. denied, 502 U.S. 944, 112 S.Ct. 386, 116 L.Ed.2d
337 (1991), we reviewed a capital murder conviction wherein the
“Commonwealth's theory of the case was that Strickler and
Henderson had acted jointly to accomplish the actual killing” of
the victim by crushing her skull with a 69-pound rock. Id. at 494,
404 S.E.2d at 235. The evidence was consistent with the
Commonwealth's argument that one of the two men held the victim
immobile while the other dropped or threw the rock on her head.
Citing Coppola v. Commonwealth, 220 Va. 243, 256-57, 257 S.E.2d
797, 806 (1979), cert. denied, 444 U.S. 1103, 100 S.Ct. 1069, 62
L.Ed.2d 788 (1980), where we held that a defendant who “jointly
participated in [a] fatal beating” was subject to conviction and
punishment for capital murder, we restated the rule of culpability
for capital murder as follows:
We adhere to the view that where two or more
persons take a direct part in inflicting fatal injuries, each
joint participant is an “immediate perpetrator” for the purposes
of the capital murder statutes. Strickler, 241 Va. at 495, 404 S.E.2d
at 235. This rule has been reaffirmed in several cases since
Strickler. See Lenz v. Warden, 265 Va. 373, 381, 579 S.E.2d 194,
199 (2003); Remington v. Commonwealth, 262 Va. 333, 349-50, 551
S.E.2d 620, 630 (2001), cert. denied, 535 U.S. 1062, 122 S.Ct.
1928, 152 L.Ed.2d 834 (2002); Williams, 248 Va. at 545, 450 S.E.2d
at 376; Hancock v. Commonwealth, 12 Va.App. 774, 779-81, 407 S.E.2d
301, 304-05 (1991).
In Lenz and Remington, two criminal actors were
immediate perpetrators because they “jointly participated in the
fatal stabbing.” Remington, 262 Va. at 350, 551 S.E.2d at 630.
Another category of multiple actors who may be immediate
perpetrators was established in Strickler. The Court held that the
evidence supported the Commonwealth's theory that one actor held
the victim while the other actor dropped a large rock on her head.
We observed that “it would have been necessary that she be held
down by one assailant while the other lifted the rock and dropped
it on her head.” Strickler, 241 Va. at 494, 404 S.E.2d at 235. As
established in Strickler, conduct of two criminal actors may be
such that they jointly complete the criminal act. It is not a
matter of encouraging, advising, urging, or facilitating another
in the commission of the crime. It is the actual participation
together in a unified act that permits two or more persons to be
immediate perpetrators. In Strickler, the Commonwealth advanced
its theory concerning how the murder was accomplished. Our review
on appeal considered whether the evidence supported the theory.
Similarly, we must consider the evidence in
support of the Commonwealth's theory of how Muhammad and Malvo
acted together in the murder of Dean Meyers. Spicer's expert
testimony, the evidence recovered from the Caprice, the evidence
from the 16 shootings, and the additional evidence concerning
Malvo and Muhammad's relationship and activities support the
Commonwealth's theory of the case. Muhammad and Malvo and the
Caprice were identified in the immediate vicinity of Dean Meyers'
murder approximately one hour before it occurred. Immediately
after the murder, Muhammad was identified in the parking lot
across the street from where Meyers was shot. Muhammad was driving
the Caprice in which he and Malvo were later arrested. Ballistics
tests determined that the bullet that killed Meyers was shot from
the .223 caliber Bushmaster rifle found in the Caprice with
Muhammad and Malvo when they were arrested. The Caprice was
located in a position providing a direct line of fire to
accomplish the murder. Significantly, the shot from the parking
lot had to cross nine lanes of traffic on a heavily traveled
highway at approximately 8:15 p.m. on a weekday evening. With the
relatively small portal offered by the hole in the trunk of the
Caprice and the obstacle presented by nine traffic lanes, the
evidence supports the Commonwealth's theory of a “shooter” and a
“spotter” and the direction by the spotter to shoot at the
opportune time. As in Strickler, we review the evidence in the
light most favorable to the Commonwealth to determine if it is
sufficient to support the Commonwealth's theory. 241 Va. at 485,
404 S.E.2d at 230. Upon review of that evidence, we cannot say
that the trial court was plainly wrong or without evidence to
support its judgment.
The jury instructions given by the trial court
accurately conveyed applicable law without confusion to the jury.
Furthermore, Instructions J and L offered by Muhammad did not
embrace a correct definition of immediate perpetrator and were
properly refused by the trial court.
The theory of the Commonwealth concerning
multiple immediate perpetrators acting as principals in the first
degree accurately encompasses Virginia law. The jury instructions
in question properly instructed the jury on the law and the facts
of the case.
2. Capital Murder in the Commission of an Act
of Terrorism
(a) Sufficiency of Evidence
Muhammad was also convicted of capital murder
pursuant to Code § 18.2-31(13) for the willful, deliberate, and
premeditated killing of Dean Meyers in the commission of an act of
terrorism as defined in Code § 18.2-46.4. Code § 18.2-46.4 defines
an “act of terrorism” as an act of violence as defined in clause
(i) of subdivision A of § 19.2-297.1 committed with the intent to
(i) intimidate the civilian population at large; or (ii) influence
the conduct or activities of the government of the United States,
a state or locality through intimidation. Code § 19.2-297.1
includes, among the acts of violence the offenses of first and
second degree murder, voluntary manslaughter, malicious wounding,
and robbery. Additionally, Code § 18.2-18 provides that a person
convicted of capital murder under Code § 18.2-31(13) is not
required to be a principal in the first degree to the murder if
the killing was “pursuant to the direction or order of the one who
is engaged in the commission of ... an act of terrorism.”
Significantly, Muhammad does not contest the
sufficiency of evidence to support the charge that acts of
violence committed by him and Malvo were done with the intent to
“intimidate the civilian population at large” or to “influence the
conduct or activities of the government of the United States, a
state or locality through intimidation.” Rather, he challenges his
conviction for capital murder based upon the terrorism predicate
by attacking the validity of the statute, constitutionally and
otherwise, and by challenging the sufficiency of the evidence that
he “directed” or “ordered” Malvo with respect to the killing of
Dean Meyers. We will consider Muhammad's challenge to the validity
of the statute elsewhere in this opinion.
The Commonwealth argues that the evidence is
sufficient to support two separate evidentiary theories upon which
Muhammad's conviction for capital murder in the commission of an
act of terrorism is based. One theory is based upon Muhammad
committing the murder of Dean Meyers as a principal in the first
degree because he is an immediate perpetrator of the crime. The
second evidentiary theory is based upon Muhammad giving a
direction or order to Malvo to kill Dean Meyers. Either or both
theories are sufficient to sustain the proof necessary to affirm
Muhammad's conviction for capital murder in the commission of an
act of terrorism.
As stated above, the proof is sufficient to
establish beyond a reasonable doubt that Muhammad acted as a
principal in the first degree, as an immediate perpetrator, in the
death of Dean Meyers. The “sniper theory” advanced by the
Commonwealth is supported through Spicer's expert testimony, the
ample evidence of such a methodology, and our prior decisions. As
an immediate perpetrator of the death of Dean Meyers in a murder
that qualifies as an act of violence under Code § 19.2-297.1,
Muhammad was a principal in the first degree in the “willful,
deliberate, and premeditated killing of [a] person ... in the
commission ... of an act of terrorism.” Code § 18.2-31(13).
Additionally, the combined weight of direct and
circumstantial evidence is sufficient to sustain Muhammad's
conviction even if he is considered to have been a criminal actor
in the second degree who gave an order or direction to Malvo to
kill Dean Meyers. Malvo and Muhammad were seen in the Caprice in
the vicinity of Meyers' shooting approximately one hour beforehand.
The Caprice was the same vehicle in which Muhammad and Malvo were
arrested. It was altered to provide access to the trunk from the
inside and a portal for firing a rifle through the trunk lid.
Muhammad was interviewed by police immediately after the shooting
in a parking lot across the street from where Meyers was shot.
Malvo was not seen at the parking lot. There was a direct line of
fire between the parking lot and the Sunoco station where Meyers
was shot. Between the parking lot and the site where Meyers was
shot were nine traffic lanes. The evidence shows that Malvo and
Muhammad possessed the .223 caliber Bushmaster rifle, mittens with
open fingers, a GPS receiver, earplugs, maps, rifle scopes, “walkie-talkies,”
a voice recorder, an electronic organizer, and other evidence
previously described. The evidence proves that the bullet that
killed Dean Meyers came from the .223 caliber Bushmaster rifle in
the possession of Muhammad and Malvo when they were arrested. The
evidence also contains direct or circumstantial proof of instances
where the two men committed similar crimes together.
Muhammad and Malvo were seen nearby in the
Caprice immediately before the murder of Dean Meyers. Only
Muhammad was seen immediately afterward. The weight of the
evidence supports the conclusion that either Muhammad or Malvo
fired the fatal shot that killed Dean Meyers. If it was Muhammad,
he is a principal in the first degree, with or without the sniper
theory advanced by the Commonwealth. The evidence more reasonably
proves that Malvo was the shooter and was in the converted trunk
when Muhammad was interviewed in the parking lot immediately after
the murder.
The circumstances of this murder are consistent
with the expert testimony concerning a two-man sniper team. As
Spicer testified, the “spotter” sets up the shot at a position
safe from view yet within range of the target. In this case, the
relatively limited range of the shooter in the trunk of the car
requires split-second timing to successfully hit a target that
quickly comes into range and just as quickly moves out of range.
This abbreviated window of opportunity is made all the more
difficult by nine lanes of traffic passing between the shooter and
the target. According to Spicer, the job of the spotter is to
communicate with the shooter, give the order or direction, and
then to provide an undetected getaway.
Furthermore, the record is replete with
evidence that Muhammad directed and ordered Malvo in the entire
criminal enterprise. As the Commonwealth argued based upon
evidence presented:
It was Muhammad who brought Malvo to this
country from Jamaica. It was Muhammad who had the military
background in shooting and snipering skills and who trained Malvo.
It was Muhammad who provided the weapons. It was Muhammad who was
determined to terrorize his ex-wife's area of the country. It was
Muhammad who was the “father” and Malvo who was the “son.” All the
evidence about their relationship-from the Lighthouse Mission and
friends in Washington state to Muhammad's cousin in Baton Rouge
and the YMCA personnel in Maryland-consistently showed Muhammad
directing and ordering Malvo's conduct. Everyone who saw them
together observed that Malvo was extremely obedient to Muhammad,
not the other way around.
On this issue, the trial court held that there
was “overwhelming circumstantial evidence regarding [Muhammad's]
direction and ordering of Mr. Malvo.” Upon review of the evidence,
we cannot say that the trial court was clearly wrong or without
evidence to support this conclusion. Powell, 268 Va. at 236, 602
S.E.2d at 120-21.
We hold that Muhammad was an immediate
perpetrator and as such was a principal in the first degree in the
commission of capital murder during the commission of an act of
terrorism. We further hold that the evidence proves that Muhammad
gave a direction or order sufficient to satisfy the requirements
of Code § 18.2-18 such that even if he were a criminal actor
ordinarily demonstrating culpability as a principal in the second
degree, he is nonetheless guilty of capital murder under Code §§
18.2-31(13) and 18.2-18.
(b) Jury Instructions on the Terrorism Capital
Offense
Muhammad maintains that it was error for the trial court to give
Instructions 5 and 6 and to refuse his Instructions K and M. (Assignments
of Error 67, 68, 72, 74). Assignment of error 68 regarding
instruction 6 has been waived for failure to brief the issue. Upon
review of the evidence and the instruction, we hold that the trial
court did not err in granting instruction 5. With respect to
Muhammad's proffered instructions K and M, he states in his brief
only that they properly addressed the terrorism issues. There is
no argument concerning why it would be error to refuse them in
light of the other instructions given. We will not consider this
argument. Rule 5:17(c).
C. Alleged Inconsistent Prosecution Theories
The independently elected Commonwealth's
Attorneys of Prince William County and Fairfax County maintained
contemporaneous prosecutions of Muhammad and Malvo. In Fairfax
County, Malvo was prosecuted for the murder of Linda Franklin
wherein Malvo interposed an insanity defense. In Prince William
County, Muhammad was prosecuted for the murder of Dean Meyers.
Much of the same evidence was utilized in each prosecution. In
assignments of error 8, 100, and 101, Muhammad argues that the
Commonwealth violated principles of due process “by simultaneously
taking materially inconsistent positions in the Muhammad case,
where it claimed Muhammad directed and controlled Malvo, and in
the Malvo case where it claimed that Malvo was a free agent.”
Muhammad further argues that the Commonwealth should be judicially
estopped from maintaining prosecution theories in two cases based
upon the same evidence because the theories of prosecution are
“inconsistent” and “irreconcilable.” We need not address the legal
arguments advanced by Muhammad because we hold that the theories
of prosecution by the two independent prosecutors were not
inconsistent.
Malvo sought to prove in his case in Fairfax
County that he was insane or “brainwashed” by Muhammad. Evidence
was successfully offered to rebut such claims. In the Fairfax
County prosecution, the Commonwealth offered expert testimony that
Malvo was “fully cognizant, conscious, deliberate, [and]
purposeful.” The Commonwealth argued in Malvo's case that he was a
“bright, clever human being” who knew what he was doing when he
acted in concert with Muhammad. In the Prince William County case
against Muhammad, the Commonwealth presented evidence that
Muhammad was the “leader” and “teacher” who trained and directed
Malvo to perfect his sniper skills. A successful rebuttal of
Malvo's affirmative defense of insanity is not inconsistent with a
theory of prosecution that includes Muhammad engaged in training
and directing Malvo in their sniper team activity. It is beyond
peradventure that businesses, sports teams, and military
operations involve training and direction without insanity of the
participants as an issue. The trial court did not err in rejecting
Muhammad's claim of inconsistent theories of prosecution.
III. Indictment and Grand Jury Process
Muhammad asserts in multiple assignments of
error that often overlap that there were fatal flaws in the
indictment process. (Assignments of Error 4, 6, 7, 9, 10, 14, 15,
17, 18, 19, 27). We will consider them topically.
A. Alleged Failure to Accuse Muhammad as the
“Triggerman”
Muhammad argues the Commonwealth failed to
allege facts necessary for a death sentence in the indictment
because it did not allege that he actually fired the shot that
killed Dean Meyers. He further alleges that it was error to deny
his motion for a bill of particulars to accomplish this end. Also,
he argues that the Commonwealth's notice of intent to seek the
death penalty does not cure this alleged legal flaw in the
indictment. Finally, he argues that the trial court should have
dismissed the indictment for its failure to indict Muhammad for
murder in the second degree rather than capital murder because of
lack of allegations that he was the “triggerman.”
These related allegations simply advance
Muhammad's argument that upon the facts of this case, only the
person who “pulls the trigger” is eligible for the death sentence
under Virginia law. As we have set forth, an immediate perpetrator
of the act is eligible for the death sentence. The trial court did
not err in recognizing this principle of law in its rulings on
these motions.
B. Failure to State Aggravating Factors in the
Indictment
Muhammad alleges that the capital murder
indictments are defective because they failed to recite
aggravating factors that would support a death sentence. He argues
that pursuant to Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428,
153 L.Ed.2d 556 (2002), aggravating factors in support of the
death penalty are the functional equivalent of elements of the
offense of capital murder. He further alleges that it was error to
refuse his request for a bill of particulars specifying the
aggravating factors upon which the Commonwealth would rely.
Finally, despite the fact that the Commonwealth filed a notice of
intent to seek the death penalty based upon both aggravating
factors of vileness and future dangerousness, he argues that the
Commonwealth's notice did not cure the defect in the indictments.
Ring involved the statutory sentencing scheme
in Arizona where a death sentence may not legally be imposed
unless at least one aggravating factor is found to exist beyond a
reasonable doubt. Ring, 536 U.S. at 596, 122 S.Ct. 2428.
Additionally, the Arizona statutes provided that the judge,
without a jury, was to make this determination. Id. at 592-93, 122
S.Ct. 2428. The issue before the Supreme Court of the United
States was stated as follows, “The question presented is whether
that aggravating factor may be found by the judge, as Arizona law
specifies, or whether the Sixth Amendment's jury trial guarantee,
made applicable to the States by the Fourteenth Amendment,
requires that the aggravating factor determination be entrusted to
the jury.” Id. at 597, 122 S.Ct. 2428. Citing the Court's prior
opinion in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348,
147 L.Ed.2d 435 (2000), the precise answer was provided: “Because
Arizona's enumerated aggravating factors operate as ‘the
functional equivalent of an element of a greater offense,’
Apprendi, 530 U.S. at 494, n. 19, 120 S.Ct. 2348, the Sixth
Amendment requires that they be found by a jury.” Ring, 536 U.S.
at 609, 122 S.Ct. 2428.
The Virginia statutory scheme does not suffer
from the infirmities found in Apprendi and Ring. In Virginia, if
the defendant elects a jury trial, the existence of one or both
aggravating factors of vileness or future dangerousness is
submitted to a jury. Muhammad recognizes that Virginia's statutory
scheme provides for jury determination of aggravating factors;
however, he argues that the indictments in his case were defective
for failure to set out the aggravating factors upon which the
Commonwealth would seek the death penalty.
In Jones v. United States, 526 U.S. 227, 119
S.Ct. 1215, 143 L.Ed.2d 311 (1999), the Supreme Court reviewed a
conviction under a federal statute prosecuted in federal court.
The Court stated, “under the Due Process Clause of the Fifth
Amendment and the notice and jury trial guarantees of the Sixth
Amendment, any fact (other than prior conviction) that increases
the maximum penalty for a crime must be charged in an indictment,
submitted to a jury, and proven beyond a reasonable doubt.” Id. at
243, n. 6, 119 S.Ct. 1215. The Court in Apprendi quoted this
statement and added, “The Fourteenth Amendment commands the same
answer in this case involving a state statute.” Apprendi, 530 U.S.
at 476, 120 S.Ct. 2348. However, in a footnote to the opinion, the
Court stated,
Apprendi has not here asserted a constitutional
claim based on the omission of any reference to sentence
enhancement or racial bias in the indictment. He relies entirely
on the fact that the “due process of law” that the Fourteenth
Amendment requires the States to provide to persons accused of
crime encompasses the right to a trial by jury ... and the right
to have every element of the offense proved beyond a reasonable
doubt .... That Amendment has not, however, been construed to
include the Fifth Amendment right to “presentment or indictment of
a Grand Jury” that was implicated in our recent decision in
Almendarez-Torres v. United States, 523 U.S. 224 [118 S.Ct. 1219,
140 L.Ed.2d 350] (1998). We thus do not address the indictment
question separately today. Apprendi, 530 U.S. at 477, n. 3, 120
S.Ct. 2348. As if to emphasize the point, the Court stated in a
footnote to Ring,
Ring does not contend that his indictment was
constitutionally defective. See Apprendi, 530 U.S. at 477, n. 3[,
120 S.Ct. 2348] (Fourteenth Amendment “has not ... been construed
to include the Fifth Amendment right to ‘presentment or indictment
of a Grand Jury’ ”). Ring, 536 U.S. at 597, n. 4, 122 S.Ct. 2428.
Muhammad concedes in his brief, “[w]e have
acknowledged that states are currently not bound by the federal
constitution to proceed in felony cases by way of indictment.” He
then makes the argument that is now before this Court:
“Nevertheless, having chosen to establish a grand jury system in
Virginia, there is a federal due process right that demands the
state properly follow that scheme.” We disagree with Muhammad. A
similar argument was made and rejected in Pennsylvania v. Finley,
481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). In Finley,
Pennsylvania provided court appointed counsel for collateral
attacks upon conviction, a right not required by the Constitution
of the United States. The Court held that Finley could not sustain
a federal constitutional claim for deficient performance of
counsel in such collateral proceedings where there was no federal
constitutional right to counsel in the first place. Id. at 558-59,
107 S.Ct. 1990. Similarly, Muhammad has no constitutional claim
for failure to include aggravating factors in the two capital
murder indictments because proceeding by indictment is not
constitutionally required of the states.
Additionally, in Virginia, if the indictment
gives a defendant sufficient notice of the nature and character of
the offense charged so he can make his defense, no bill of
particulars is required. Roach v. Commonwealth, 251 Va. 324, 340,
468 S.E.2d 98, 107, cert. denied, 519 U.S. 951, 117 S.Ct. 365, 136
L.Ed.2d 256 (1996), Wilder v. Commonwealth, 217 Va. 145, 147, 225
S.E.2d 411, 413 (1976). In Goins v. Commonwealth, 251 Va. 442,
454, 470 S.E.2d 114, 123, cert. denied, 519 U.S. 887, 117 S.Ct.
222, 136 L.Ed.2d 154 (1996), we held that an indictment reciting
an offense under Code § 18.2-31 was sufficient to place the
defendant on notice of the nature and character of the offense
charged. We noted that:
The capital murder indictment alleged that “on
or about October 14, 1994, in the City of Richmond, Christopher
Cornelius Goins did feloniously and unlawfully commit capital
murder in that he did kill and murder Robert Jones in a willful,
deliberate and premeditated killing of more than one person as
part of the same act or transaction.” Id. at 454 n. 1, 470 S.E.2d
at 123 n. 1. We held that the indictment in Goins was sufficient.
Muhammad's indictments were sufficient as well.
A defendant is not entitled to a bill of
particulars as a matter of right. Code § 19.2-230 provides that a
trial court “may direct the filing of a bill of particulars.” The
trial court's decision whether to require the Commonwealth to file
a bill of particulars is a matter committed to its sound
discretion. Quesinberry v. Commonwealth, 241 Va. 364, 372, 402 S.E.2d
218, 223, cert. denied, 502 U.S. 834, 112 S.Ct. 113, 116 L.Ed.2d
82 (1991). Here, the trial court denied Muhammad's motion for a
bill of particulars identifying the aggravating factors upon which
the Commonwealth would rely. After the trial court denied the bill
of particulars, the Commonwealth nonetheless filed a notice of
intent to seek the death penalty which fully placed Muhammad on
notice that the Commonwealth intended to prove both future
dangerousness and vileness as aggravating factors.
We hold that aggravating factors are not
constitutionally required to be recited in a capital murder
indictment. We hold that the indictments in this case were
sufficient under Virginia law. We hold that the purported
violation of Virginia's indictment provisions in this case does
not rise to the level of a federal constitutional claim. We hold
that it was not an abuse of discretion to refuse Muhammad's motion
for a bill of particulars. Finally, we hold that any error that
could have been committed by the failure to order a bill of
particulars was rendered harmless by the provision of the
information Muhammad sought in the Commonwealth's notice of intent
to seek the death penalty.
C. Alleged Defect in Indictment Because of
Disjunctive Language
In assignment of error 15, Muhammad asserts
that the indictment charging capital murder under the terrorism
predicate is defective because of the use of disjunctive terms.
The indictment in question follows the language of Code §
18.2-46.4 which states in pertinent part: “Act of terrorism” means
an act of violence as defined in clause (i) of subdivision A of §
19.2-297.1 committed with the intent to (i) intimidate the
civilian population at large; or (ii) influence the conduct or
activities of the government of the United States, a state or
locality through intimidation. Code § 18.2-46.4 (emphasis added).
Muhammad claims that the indictment is defective because it did
not specify which of the two intents Muhammad had at the time of
the killing. His argument is not based upon any constitutional
claims; rather, his argument is confined to state law issues.
The indictment charges a single offense and not
two separate offenses. The single offense can be satisfied upon
proof of either or both of two mens rea conditions. A reasonable
construction of the indictment as rendered by the grand jury
includes both. Here, the trial court permitted the amendment of
the indictment to more particularly express what was already a
reasonable construction of the meaning of the indictment as
delivered. The indictment was amended from “or” to “and/or.”
Previously, we considered a similar claim of
defective indictment based upon the use of the disjunctive, “or.”
In Buchanan v. Commonwealth, 238 Va. 389, 398, 384 S.E.2d 757, 763
(1989), cert. denied, 493 U.S. 1063, 110 S.Ct. 880, 107 L.Ed.2d
963 (1990), the defendant was charged with capital murder based
upon the killing of more than one person as a part of the same act
or transaction. Buchanan killed four people. We observed that:
The first indictment charged, in essence, that
Buchanan killed Buchanan, Sr. as part of the same act or
transaction in which he killed J.J., Donnie, or, Mrs. Buchanan.
238 Va. at 396, 384 S.E.2d at 762. We held that this indictment
reasonably placed Buchanan on notice in the following manner:
Under the first indictment, Buchanan was on notice that he had to
defend against a claim that he killed Buchanan, Sr. and all three
of the other victims as part of the same act or transaction; that
he killed Buchanan, Sr. and any two of the other victims as part
of the same act or transaction; or that he killed Buchanan, Sr.
and any one of the other victims as part of the same act or
transaction. Id. at 397, 384 S.E.2d at 762.
Muhammad had notice in the indictment, as
originally found by the grand jury and as amended, that he was
charged with a single offense that could be proved by showing: (1)
his intent to intimidate the civilian population at large, or (2)
his intent to influence the conduct or activities of the
government of the United States, a state or locality through
intimidation; or (3) his intent to do both 1 and 2 above. The
trial court did not err in refusing to dismiss the terrorism
indictment.
D. Alleged Deficiencies in the Composition of
the Grand Jury
Muhammad argues that the process utilized in
his indictment was fatally flawed because the grand jury that
indicted him was “improperly constituted in violation of Virginia
Law and [his] rights to due process and equal protection.” Other
than this conclusory statement and the further statement that the
process is “arbitrary and vague,” Muhammad makes no constitutional
argument in his brief in support of his contentions. His argument
is insufficient. Rule 5:17(c). Furthermore, no constitutional
argument was raised in the trial court. Rule 5:25. We will not
consider this vague and uncertain constitutional challenge to the
composition of the grand jury.
Additionally, his statutory challenge is
without merit. Code §§ 19.2-191 through -205 govern the selection
of regular grand jurors. The record reveals that the grand jurors
who returned indictments against Muhammad were selected pursuant
to the following routine process. The clerk of the court creates a
list of individuals who have been called to serve as petit jurors
at least three times, but not in the immediately preceding three
years. From that list, a smaller list of 120 names is created. The
list of 120 names is reviewed by all the judges of the circuit.
Questionnaires are sent to the persons on the list. At each term
of court, seven jurors are randomly selected to serve as regular
grand jurors. The chief judge of the circuit reviews the
questionnaires prior to the first meeting of the grand jury.
During his first meeting with the grand jurors, the chief judge
discusses their duties with them and selects one of them to be the
foreperson.
The procedure employed in this case complies
with the requirements outlined by statute that the grand jury be
composed of “persons 18 years of age or over, of honesty,
intelligence and good demeanor and suitable in all respects to
serve as grand jurors,” Code § 19.2-194, and “a citizen of this
Commonwealth, eighteen years of age or over, and shall have been a
resident of this Commonwealth one year and of the county or
corporation in which the court is to be held six months, and is in
other respects a qualified juror.” Code § 19.2-195.
Finally, Muhammad claims that the grand jurors
“were not properly rotated as required by Section 19.2-194.” There
is no evidence to support his claim. The evidence does establish
that this grand jury was sworn to sit for a two month term in
October and November 2002. We hold that the evidence does not
sustain a claim that there were infirmities in the process,
selection, or make-up of the grand jury that indicted Muhammad.
IV. Constitutional Challenge to the Terrorism
Statute
In assignment of error 17, Muhammad maintains
that the terrorism statutes, Code §§ 18.2-31(13) and 18.2-46.4 are
unconstitutionally overbroad and vague. We disagree.
As the Supreme Court stated in Hoffman Estates
v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186,
71 L.Ed.2d 362 (1982): In a facial challenge to the overbreadth
and vagueness of a law, a court's first task is to determine
whether the enactment reaches a substantial amount of
constitutionally protected conduct. If it does not, then the
overbreadth challenge must fail. The court should then examine the
facial vagueness challenge and, assuming the enactment implicates
no constitutionally protected conduct, should uphold the challenge
only if the enactment is impermissibly vague in all of its
applications. A plaintiff who engages in some conduct that is
clearly proscribed cannot complain of the vagueness of the law as
applied to the conduct of others. A court should therefore examine
the complainant's conduct before analyzing other hypothetical
applications of the law. Id. at 494-95, 102 S.Ct. 1186. See
Chicago v. Morales, 527 U.S. 41, 52, 119 S.Ct. 1849, 144 L.Ed.2d
67 (1999). The First Amendment doctrine of overbreadth requires
proof that a law “punishes a ‘substantial’ amount of protected
free speech, ‘judged in relation to the statute's plainly
legitimate sweep.’ ” Virginia v. Hicks, 539 U.S. 113, 118, 123
S.Ct. 2191, 156 L.Ed.2d 148 (2003) (citing Broadrick v. Oklahoma,
413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)). While
Muhammad utilizes the term “overbroad,” he offers no evidence or
argument in support of the requirements of this doctrine. Instead,
Muhammad confines his argument to vagueness.
A successful challenge to the facial validity
of a criminal statute based upon vagueness requires proof that the
statute fails to provide notice sufficient for ordinary people to
understand what conduct it prohibits, or proof that the statute
“may authorize and even encourage arbitrary and discriminatory
enforcement.” Morales, 527 U.S. at 56, 119 S.Ct. 1849; Kolender v.
Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983).
But “[o]ne to whose conduct a statute clearly applies may not
successfully challenge it for vagueness.” Parker v. Levy, 417 U.S.
733, 756, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974); Commonwealth v.
Hicks, 267 Va. 573, 580-81, 596 S.E.2d 74, 78 (2004); accord
Gibson v. Mayor of Wilmington, 355 F.3d 215, 225 (3d Cir.2004);
Fuller v. Decatur Public School Board of Education School District
61, 251 F.3d 662, 667 (7th Cir.2001); Joel v. City of Orlando, 232
F.3d 1353, 1359-60 (11th Cir.2000); United States v. Tidwell, 191
F.3d 976, 979 (9th Cir.1999); United States v. Hill, 167 F.3d
1055, 1063-64 (6th Cir.), cert. denied, 528 U.S. 872, 120 S.Ct.
175, 145 L.Ed.2d 148 (1999); Woodis v. Westark Community College,
160 F.3d 435, 438-39 (8th Cir.1998); United States v. Corrow, 119
F.3d 796, 803 (10th Cir.1997), cert. denied, 522 U.S. 1133, 118
S.Ct. 1089, 140 L.Ed.2d 146 (1998); Love v. Butler, 952 F.2d 10,
14 (1st Cir.1991); Hastings v. Judicial Conference of the United
States, 829 F.2d 91, 107 (D.C.Cir.1987), cert. denied, 485 U.S.
1014, 108 S.Ct. 1487, 99 L.Ed.2d 715 (1988); Hill v. City of
Houston, 789 F.2d 1103, 1127 (5th Cir.1986), aff'd, 482 U.S. 451,
107 S.Ct. 2502, 96 L.Ed.2d 398 (1987); Gallaher v. City of
Huntington, 759 F.2d 1155, 1160 (4th Cir.1985).
Capital murder pursuant to Code § 18.2-31(13)
is defined as the “willful, deliberate and premeditated killing of
any person by another in the commission of or attempted commission
of an act of terrorism as defined in Code § 18.2-46.4.” “Act of
terrorism” means an act of violence as defined in clause (i) of
subdivision A of § 19.2-297.1 committed with the intent to (i)
intimidate the civilian population at large; or (ii) influence the
conduct or activities of the government of the United States, a
state or locality through intimidation. Code § 18.2-46.4. The “act
of violence” reference to Code § 19.2-297.1 includes a list of
certain specific aggravated felonies including murder, voluntary
manslaughter, mob-related felonies, malicious assault or bodily
wounding, robbery, carjacking, sexual assault and arson. The
combination of these statutes defines criminal conduct that
constitutes a willful, deliberate and premeditated killing in the
commission, or attempted commission, of one of the designated
felonies with the intent to intimidate the civilian population or
influence the conduct of government through intimidation.
Additionally, under Code § 18.2-18 the General Assembly extended
the reach of criminal conduct subject to the death penalty to
include “a killing pursuant to the direction or order of one who
is engaged in the commission of or attempted commission of an act
of terrorism under the provisions of subdivision 13 of § 18.2-31.”
Muhammad raises questions about the definition
of “intimidation,” “civilian population at large,” and “influence
the conduct or activities of government.” He suggests that failure
to statutorily define these phrases renders the statutes
unconstitutional. He further complains that “no distinction can be
drawn between the newly defined crime and any ‘base offense’ which
carries with it the same hallmarks of intimidation and influence,”
and that this allows “unguided and unbridled law enforcement
discretion.” Muhammad further maintains that extending the scope
of the statute to reach those who order or direct a killing in the
commission of or attempted commission of an act of terrorism
somehow violates what he calls the “ triggerman rule.” In a
particularly exaggerated statement, Muhammad claims that extending
the scope of the statute “allows almost any violent criminal act
to be classified as terrorism and thereby rendering any individual
charged eligible for the death penalty.” We disagree with each of
Muhammad's contentions.
By referencing established criminal offenses as
acts of violence subject to the statutory scheme, the legislature
included offenses with previously defined elements and mens rea
requirements. Additionally, the term “intimidate” has been defined
by case law. See Sutton v. Commonwealth, 228 Va. 654, 663, 324 S.E.2d
665, 669 (1985) (defining intimidation as unlawful coercion;
extortion; duress; putting in fear).
We have no difficulty understanding that
“population at large” is a term that is intended to require a more
pervasive intimidation of the community rather than a narrowly
defined group of people. Examples are illustrative. When used in a
descriptive sense referring to a prison, the prison “population at
large” consists of everyone in the prison rather than a small
subset of prisoners. Lewis v. Casey, 518 U.S. 343, 358, 116 S.Ct.
2174, 135 L.Ed.2d 606 (1996); Cleavinger v. Saxner, 474 U.S. 193,
210, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985). In a case involving the
exclusion of certain people from capital juries, the term
“population at large” meant the community from which the jury pool
could be chosen. Lockhart v. McCree, 476 U.S. 162, 179, 106 S.Ct.
1758, 90 L.Ed.2d 137 (1986). It is significant to note that
Muhammad offered a similar understanding of the term when he
argued below that all potential jurors in his case were victims.
We do not believe that a person of ordinary intelligence would
fail to understand this phrase.
Similarly, we do not believe that a person of
ordinary intelligence needs further definition of the phrase
“influence the conduct or activities of government.” Muhammad's
argument on this point is essentially a strained “legislative
history” argument. Quoting former Attorney General Jerry Kilgore's
press releases, Muhammad claims that the statutes are designed “to
address al-Qaeda type attacks-attacks motivated by a greater
political purpose.” Even if a press release could qualify as
legislative history, it is quite a leap to impute, from the press
releases of an Attorney General, the intent of the General
Assembly. We find the intent of the General Assembly primarily in
the words it employs in enacting legislation. Nothing in the words
of these statutes evinces an intent to limit its application to
criminal actors with political motives.
Muhammad maintains that there is no distinction
between the “base offense” and the capital offense based upon
terrorism. What he appears to be arguing is that the terrorism
statute is unnecessary on the one hand because a killing in the
commission of one of the enumerated violent acts could result in
the death penalty anyway, and on the other hand, its reach is
extended too far by including those who order or direct such
killings. Clearly, the General Assembly has the power to define
criminal conduct even if statutes overlap in coverage. Whether a
defendant can be simultaneously or successively charged with
overlapping offenses implicates other questions not presented here.
Muhammad's quarrel with the expansion of the
potential imposition of the death penalty to those who order or
direct another in a killing in the commission of or attempted
commission of an act of terrorism is a policy question well within
the purview of legislative power so long as it is not otherwise
unconstitutional. In that respect, Muhammad argues in assignment
of error 18 that the provisions of Code § 18.2-18 allow the death
penalty for a defendant with no demonstrated intent to kill the
victim. Muhammad incorrectly characterizes the extension of the
scope of the statute to reach traditional “aiders and abettors.”
The provisions of Code § 18.2-18 do not extend to “aiders and
abettors;” rather, it extends only to those who “direct” or
“order” the killing. The criminal actor who “orders” or “directs”
the killing is not unlike the criminal actor who hires another to
kill and is potentially subject to the death penalty under Code §
18.2-31(2). The criminal actor who “orders” or “directs” the
killing shares the intent to kill with the one who carries out the
murder. The provisions of Code § 18.2-18 do not have the effect
imagined by Muhammad.
Muhammad's argument concerning vagueness does
not focus on his conduct. Indeed, Muhammad does not claim in his
brief that his actions and those of Malvo were not acts of
terrorism under the statutory provisions. Rather, Muhammad
hypothetically poses questions about the applicability of the
statute in other circumstances. As discussed above, the statutes
provide notice sufficient for ordinary people to understand what
conduct they prohibit, and do not authorize and/or encourage
arbitrary and discriminatory enforcement. More importantly,
Muhammad cannot and does not maintain that the statutes do not
give him notice that his conduct and Malvo's conduct was
prohibited. Nor does Muhammad allege that he has been subject to
arbitrary or discriminatory enforcement of the statutes. One who
engages in conduct that is clearly proscribed and not
constitutionally protected may not successfully attack a statute
as void for vagueness based upon hypothetical conduct of others.
Hoffman Estates, 455 U.S. at 494-95, 102 S.Ct. 1186.
V. Alleged Conflict Between Sentencing
Provisions
Muhammad argues in assignment of error 27 that
he may not be sentenced to death because of an “absolute and un-rectifiable
conflict” between the capital murder statute (Code § 18.2-31(13)),
and the terrorism statute (Code § 18.2-46.4, et seq.). Capital
murder is a Class 1 felony punished by life imprisonment or death.
The terrorism statute provides for a penalty as a Class 2 felony
“if the base offense of such act of terrorism may be punished by
life imprisonment, or a term of imprisonment of not less than
twenty years.” Code § 18.2-46.5. Muhammad argues that there is “no
discernable distinction whatsoever between murder committed under
the terrorism provision and murder committed under the capital
murder provision.” He maintains that he may not be subject to the
greater punishment.
The Supreme Court of the United States resolved
this same issue in a case involving sentencing provisions under
two statutes that encompassed the same criminal act. Holding that
the prosecutor had discretion to choose which statute to base the
prosecution upon, the Court stated:
The provisions in issue here, however,
unambiguously specify the activity proscribed and the penalties
available upon conviction. That this particular conduct may
violate both Titles does not detract from the notice afforded by
each. Although the statutes create uncertainty as to which crime
may be charged and therefore what penalties may be imposed, they
do so to no greater extent than would a single statute authorizing
various alternative punishments. So long as overlapping criminal
provisions clearly define the conduct prohibited and the
punishment authorized, the notice requirements of the Due Process
Clause are satisfied.
This Court has long recognized that when an act
violates more than one criminal statute, the Government may
prosecute under either so long as it does not discriminate against
any class of defendants. United States v. Batchelder, 442 U.S.
114, 123-24, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). Muhammad makes
no constitutional argument in his brief on this issue. He merely
recites that there is a conflict. He does not argue that there is
ambiguity in either statute nor does he argue that application of
the statute discriminates against any class of defendants. The
trial court did not err in denying Muhammad's motion to preclude a
death sentence on this basis.
VI. Right to Self-Representation
Muhammad alleges in briefing assignment of
error 35 that the trial court violated Muhammad's “Sixth Amendment
right to self-representation by unduly interfering with his
ability to consult with standby counsel.” The right of a criminal
defendant to represent himself is found in the Sixth Amendment to
the Constitution of the United States. Faretta v. California, 422
U.S. 806, 807, 836, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The
right is not without limitations and conditions. Only after the
jury panel had been sworn, did Muhammad request permission to
represent himself. At that time, Muhammad did not have a
constitutional right to proceed pro se. As the United States Court
of Appeals for the Fourth Circuit has held, we think it is
reasonable, and entirely compatible with the defendant's
constitutional rights, to require that the right of self-representation
be asserted at some time “before meaningful trial proceedings have
commenced,” and that thereafter its exercise rests within the
sound discretion of the trial court. United States v. Lawrence,
605 F.2d 1321, 1325 (4th Cir.1979), cert. denied, 444 U.S. 1084,
100 S.Ct. 1041, 62 L.Ed.2d 770 (1980). Nonetheless, after
extensive questioning of Muhammad concerning his decision and
appropriate admonition concerning the risks involved and the
manner in which it would be permitted, the trial court exercised
its discretion and allowed Muhammad to represent himself. The
trial court directed his lawyers to be “standby counsel.” The
trial court informed Muhammad that “standby counsel” could sit at
counsel table with him, and “you can perhaps upon occasion ask
them questions, but I don't expect you to ask them every question
that's being formulated. That would, I think, unduly hinder the
trial process.”
After two days of self-representation, Muhammad
changed his mind and requested that his “standby counsel” resume
their previously assigned role. Now Muhammad complains about the
limitations and restrictions placed upon him during those two days.
The only issue presented in this assignment of error is stated by
Muhammad as follows: “whether the court improperly prohibited
Muhammad from consulting with his standby counsel.”
Soon after Muhammad began representing himself,
the Commonwealth objected to the extensive interaction between
Muhammad and standby counsel. The Commonwealth complained that
standby counsel was actually acting as co-counsel in contravention
of the trial court's instructions. An exchange between the trial
court and standby counsel appears to confirm the Commonwealth's
concern. Standby counsel stated:
Mr. Muhammad has asked about things such as
objections-what is hearsay? What is a leading question? and so on.
And so he's inquired about that and the timing of objections and
so on, which as the court knows is obviously crucial or else it's
waived. That's the context of it. We'd say hearsay, and he knew
the argument to make to Your Honor and same thing as far as
leading questions. It is apparent from this exchange that standby
counsel was doing far more than responding to inquiries made by
Muhammad. Rather, as they admit, they were prompting him to make
objections during the course of testimony.
The trial court indicated that Muhammad would
not be permitted to have “hybrid” representation where standby
counsel becomes co-counsel by extensive participation and
direction of the defense. “ Faretta does not require a trial judge
to permit ‘hybrid’ representation.” McKaskle v. Wiggins, 465 U.S.
168, 183, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). As Muhammad
acknowledges in his brief, “[t]he court's solution to the
perceived problem was to move standby counsel down the table, away
from Mr. Muhammad, something that Mr. Muhammad had suggested.”
Muhammad does not now complain that he could not have taken an
extra step or two to consult with counsel. He cannot be heard to
complain of a solution he proposed. There is no specific ruling of
the trial court that Muhammad identifies as error. Muhammad points
to no objection made by him concerning the trial court's direction
or handling of the issue. The record reveals that Muhammad
expressly agreed with the trial court's instructions to standby
counsel. Upon review of the specific arguments made by Muhammad
and the relevant portions of the record he identifies, we hold
that the trial court did not abridge his rights under the Sixth
Amendment to properly consult with standby counsel.
VII. Refusal to Permit Expert Healthcare
Testimony at Sentencing
The trial court granted Muhammad's motion under
the provisions of Code § 19.2-264.3:1 for the appointment of
mental health experts to assist him in his defense. Thereafter,
Muhammad gave notice of his intent to use expert psychiatric
testimony at the sentencing phase to prove mitigating factors. In
response, the Commonwealth moved the trial court for an order
appointing an expert for the Commonwealth pursuant to Code §
19.2-264.3:1(F).
At the hearing on the Commonwealth's motion for
the appointment of an expert, the trial court granted Muhammad's
request that the Commonwealth's expert be prohibited from
inquiring into circumstances of the crimes alleged or Muhammad's
relationship with Malvo. This restriction was based upon
Muhammad's declaration that he did not intend to present evidence
that he acted under extreme mental disturbance or failed to
appreciate the criminality of his conduct. At that time, the trial
court advised Muhammad that if he refused to cooperate with the
Commonwealth's expert, it could result in the exclusion of
Muhammad's expert's testimony. Muhammad acknowledged to the trial
court that he understood the requirements and the potential
consequences for noncompliance.
Nonetheless, on October 8, 2003, Muhammad
refused to be interviewed by the Commonwealth's expert without his
counsel present. Also, he objected to the expert's use of a video
camera during the interview. After a hearing on the matter, the
trial court permitted counsel to be present at the interview by
the Commonwealth's expert and further ruled that the interview
could be recorded by video camera. Nonetheless, the following day,
Muhammad refused to meet with the Commonwealth's expert under any
circumstances.
In response, the Commonwealth moved the trial
court under the provisions of Code § 19.2-264.3:1 to prohibit
Muhammad from presenting expert testimony from his court appointed
experts at sentencing. At the hearing, the trial court again
directly addressed Muhammad concerning the potential effect of his
refusal to cooperate with the Commonwealth's expert. Muhammad
indicated that he understood and that he had made the choice not
to cooperate. The trial court exercised its discretion under the
statute and barred Muhammad from presenting expert testimony from
his court appointed experts regarding mitigating factors at the
sentencing proceeding.
Despite the trial court's ruling, at the
conclusion of the evidence in the guilt phase of the trial,
Muhammad moved the trial court to permit him to present expert
testimony from one of his court appointed mental health experts,
Dr. Cunningham, in the sentencing phase. Muhammad represented that
Dr. Cunningham would not testify based upon anything he learned
from his examination; rather, he would testify based upon
statistical analyses about prison populations. Apparently, this
testimony would be offered as relevant to the question of
Muhammad's future dangerousness. The Commonwealth objected, but
the trial court overruled the Commonwealth's objection at that
time and invited Muhammad to present Dr. Cunningham's testimony
outside the presence of the jury for a determination of its
admissibility. Muhammad did not do so.
After all of the evidence had been presented to
the jury in the sentencing phase and after both sides rested their
case, Muhammad announced that he would present a proffer from Dr.
Cunningham. An affidavit from Dr. Cunningham was thereafter
submitted to the trial court.
In assignments of error 29, 75, and 76,
Muhammad attacks various rulings of the trial court on this matter.
Muhammad argues that it was an abuse of discretion for the trial
court to deny him the opportunity to present expert testimony. He
further states, in conclusory fashion, that the denial violated
his constitutional rights under the Fifth, Sixth, Eighth, and
Fourteenth Amendments. He further complains that he was not able
to present lay testimony in mitigation. Finally, he argues that,
because of the notice of intent to use expert testimony in a
limited fashion, the Commonwealth was not entitled to an expert
evaluation of Muhammad.
Considering the Commonwealth's right to an
evaluation of Muhammad, the trial court found, and Muhammad agreed,
that the issue of notice of use of evidence in a limited fashion
was not raised before the trial court ruled on the matter. It was
raised for the first time in post trial proceedings. The trial
court ruled that it was waived. Objections must be stated with
reasonable certainty at the time of the trial court's ruling in
order to be preserved for appellate review. This objection will
not be considered on appeal. Rule 5:25.
Consideration of Muhammad's arguments on these
matters requires a clear understanding of what the trial court
ruled concerning these issues. The trial court ruled that Muhammad
could not present expert testimony on mitigation factors at
sentencing because of his refusal to abide by the trial court's
order to submit to an evaluation by the Commonwealth. The trial
court did not bar the presentation of non-expert testimony on this
issue. Thereafter, Muhammad sought the ability to present limited
expert testimony purporting not to be based upon expert interviews.
The Commonwealth objected. The trial court overruled the
Commonwealth's objection and gave Muhammad the opportunity to
present evidence out of the presence of the jury that would allow
the trial court to rule on its admissibility. Muhammad did not
take advantage of this invitation. Only after all the evidence was
presented at the sentencing phase and both parties rested their
case did Muhammad offer an affidavit as a proffer of Dr.
Cunningham's testimony. He may not be heard to complain about the
exclusion of Dr. Cunningham's limited testimony when he did not
give the trial court the contemporaneous opportunity to evaluate
its admissibility. Rule 5:25.
Nothing in the trial court's ruling prohibited
non-expert testimony on mitigating factors in the sentencing
proceeding. Muhammad cites Lovitt v. Warden, 266 Va. 216, 257, 585
S.E.2d 801, 825-26 (2003), cert. denied, 541 U.S. 1006, 124 S.Ct.
2018, 158 L.Ed.2d 523 (2004), and suggests that somehow that case
further prohibits such testimony in the absence of expert
testimony. Nothing in Lovitt suggests such a bar.
Considering the main thrust of Muhammad's
argument, we turn our attention to the claim that the trial court
abused its discretion, and that its decision barring expert
testimony on mitigation factors and the statutes that permit such
a decision are unconstitutional. Muhammad makes no argument on
brief that the statutes are overbroad or vague. His only argument
is that their application to him under these circumstances
violated various constitutional rights.
The trial court provided Muhammad with the
experts he requested at state expense. The trial court granted
Muhammad's request that his counsel be present during any
evaluation by the Commonwealth. The trial court engaged Muhammad
directly in court on multiple occasions concerning the potential
consequences of his failure to cooperate with the evaluation. On
these occasions, Muhammad affirmatively expressed his
understanding and further acknowledged that he freely decided not
to cooperate. After the trial court made its ruling, it even
considered permitting expert mitigation testimony not based upon
his own expert's interview with him. Muhammad did not avail
himself of the opportunity.
Muhammad is correct that limiting the evidence
that a criminal defendant may present in his defense implicates
numerous constitutional rights. What Muhammad fails to appreciate
is that he may, by his knowing and informed decisions, waive such
rights. These rights may be as venerated as the right to a jury,
the right to counsel, the right against self-incrimination, and
the right to exclusion of evidence seized in an unconstitutional
manner. As the Supreme Court recently noted, “Waiver of the right
to counsel, as of constitutional rights in the criminal process
generally, must be a ‘knowing, intelligent ac[t] done with
sufficient awareness of the relevant circumstances.’ ” Iowa v.
Tovar, 541 U.S. 77, 80, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004) (quoting
Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d
747 (1970)). We have no difficulty including the right to present
mitigating testimony within the panoply of constitutional rights
that may be waived by the accused.
Upon review of the record, we agree with the
trial court that Muhammad's decision not to cooperate was
knowingly and intelligently made. The real issue presented is
whether the trial court's exercise of discretion was reasonable
under the circumstances.
The detailed and balanced statutory scheme
provided by Code § 19.2-264.3:1 anticipates decisions made by the
accused and the Commonwealth regarding expert mental health
evaluations and testimony regarding sentencing issues in a capital
murder trial. One of those circumstances arises when the defendant
gives notice of intent to present certain types of testimony at
sentencing. In response, the Commonwealth may request an
evaluation of the defendant. The statute explicitly provides that
the trial court must “advise the defendant on the record in court
that a refusal to cooperate with the Commonwealth's expert could
result in exclusion of the defendant's expert evidence.” Code §
19.2-264.3:1(F)(1). The statute explicitly provides the remedy for
lack of cooperation: “the court may admit evidence of such refusal
or, in the discretion of the court, bar the defendant from
presenting his expert evidence.” Code § 19.2-264.3:1(F)(2).
The Supreme Court has recognized that the
prosecution has the right to a fair rebuttal of mental health
evidence presented by the defendant. In Buchanan v. Kentucky, 483
U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987), the defendant
challenged the introduction of evidence from a psychiatric report
prepared upon joint motion of the defendant and the prosecution.
The Court stated, “if a defendant requests such an evaluation or
presents psychiatric evidence, then, at the very least, the
prosecution may rebut this presentation with evidence from the
reports of the examination that the defendant requested.” Id. at
422-23, 107 S.Ct. 2906.
We agree with the Commonwealth's
characterization of the circumstances presented on this question.
“By his own deliberate conduct, the defendant sought to gain an
unfair benefit by obtaining an evaluation that the Commonwealth
would be powerless to contest at trial either by meaningful cross-examination
or by presenting its own expert testimony. The trial court's
remedy thus was protective of the interests of all parties in a
fair trial and was not punitive.” The trial court's ruling was not
unreasonable, especially considering that it was willing to
consider expert testimony from Dr. Cunningham not based upon
interviews with Muhammad, but Muhammad did not avail himself of
the opportunity. We hold that the trial court did not abuse its
discretion by excluding Muhammad's expert witness testimony
concerning mitigation factors at sentencing.
VIII. Discovery Issues
In assignments of error 1, 2, 3, 22, 98, and 99, Muhammad
attacks the constitutionality of criminal discovery rules in
Virginia, specific rulings of the trial court regarding discovery,
the refusal of the trial court to permit ex parte application for
expert witness assistance, and the refusal to grant a new trial
upon “after-discovered” evidence of an alleged exculpatory nature.
There is no merit to any of Muhammad's contentions.
Muhammad's claim that criminal discovery rules in Virginia are
unconstitutional because they provide for limited discovery, has
been previously decided. Bailey v. Commonwealth, 259 Va. 723, 736,
529 S.E.2d 570, 577, cert. denied, 531 U.S. 995, 121 S.Ct. 488,
148 L.Ed.2d 460 (2000); Walker v. Commonwealth, 258 Va. 54, 63,
515 S.E.2d 565, 570-71 (1999), cert. denied, 528 U.S. 1125, 120
S.Ct. 955, 145 L.Ed.2d 829 (2000). We see no reason to revisit
this issue.
Additionally, the trial court did not err in denying certain
specific requests for discovery: a. The trial court was correct in
denying Muhammad's request 1(b) seeking “the specific questions,
comments or statements of any person involved in the conversation
with, or interrogation of, John Allen Muhammad, which brought
about any response.” Rule 3A:11 requires production of the
substance of the defendant's statements but does not require
production of the statements sought by Muhammad in this request.
Nonetheless, the trial court did order that if a video, audio, or
otherwise transcribed interrogation existed, the entirety of such
material would be provided to the defendant. b. The trial court
was correct in denying Muhammad's request for “any
contemporaneously made notes of statements attributed to the
defendant.” Except for specifically designated items, subsection
(b) of the Rule 3A:11 excludes the production of such notes. c.
The trial court did not err in denying Muhammad's discovery
request seeking “charged offenses, investigation or [items] which
allege unadjudicated conduct.” Such items are not discoverable
under Rule 3A:11; rather such information and items may be
provided by motion under Code § 19.2-264.3:2. Similarly,
Muhammad's request for evidence of unadjudicated criminal conduct
in request 8 was properly denied under Rule 3A:11.
Muhammad alleges that it was error for the trial court to
refuse to permit him to make ex parte application to the court “in
order to seek funds and authorization to retain expert evaluations.”
We have previously rejected this argument and find no reason to
revisit the issue. Weeks v. Commonwealth, 248 Va. 460, 473, 450
S.E.2d 379, 388 (1994), cert. denied, 516 U.S. 829, 116 S.Ct. 100,
133 L.Ed.2d 55 (1995); Ramdass v. Commonwealth, 246 Va. 413, 422,
437 S.E.2d 566, 571 (1993), vacated on other grounds, 512 U.S.
1217, 114 S.Ct. 2701, 129 L.Ed.2d 830 (1994).
The final issue related to discovery questions involves
Muhammad's assertion that the trial court erred in failing to
grant him a new trial because the Commonwealth allegedly failed to
provide exculpatory evidence to him pursuant to Brady v. Maryland,
373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Malvo wrote
certain letters from jail addressed to “Pacman,” a person who
remains unidentified. Counsel for Muhammad state that they first
became aware of the existence of these letters when they were the
subject of testimony in Malvo's trial. The Commonwealth
represented to the trial court that prosecutors in Muhammad's case
were unaware of the letters before the post-trial motion for a new
trial was filed.
Muhammad claims that the so-called “Pacman letters” are
exculpatory in nature because of the issue raised by Code §
18.2-18, previously discussed herein, extending the potential
applicability of the death sentence in a capital murder
prosecution under the terrorism statute where there is proof that
the accused “directed” or “ordered” the killing. Muhammad
maintains that the letters show the independence of Malvo from him
and demonstrate that Malvo could not have acted under Muhammad's
“direction” or “order.”
We have previously stated: In Brady v. Maryland, 373 U.S. 83
[83 S.Ct. 1194, 10 L.Ed.2d 215] (1963), the United States Supreme
Court held that “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.”
Id. at 87[, 83 S.Ct. 1194]. Whether evidence is material and
exculpatory and, therefore, subject to disclosure under Brady is a
decision left to the prosecution. Pennsylvania v. Ritchie, 480 U.S.
39, 59 [107 S.Ct. 989, 94 L.Ed.2d 40] (1987). Inherent in making
this decision is the possibility that the prosecution will
mischaracterize evidence, albeit in good faith, and withhold
material exculpatory evidence which the defendant is entitled to
have under the dictates of Brady. If the defendant does not
receive such evidence, or if the defendant learns of the evidence
at a point in the proceedings when he cannot effectively use it,
his due process rights as enunciated in Brady are violated. United
States v. Russell, 971 F.2d 1098 (4th Cir.1992); United States v.
Shifflett, 798 F.Supp. 354 (1992); Read v. Virginia State Bar, 233
Va. 560, 564-65, 357 S.E.2d 544, 546-47 (1987). . . . . .
Exculpatory evidence is material if there is a reasonable
probability that the outcome of the proceeding would have been
different had the evidence been disclosed to the defense. “A
reasonable probability” is one which is sufficient to undermine
confidence in the outcome of the proceeding. United States v.
Bagley, 473 U.S. 667, 682 [105 S.Ct. 3375, 87 L.Ed.2d 481] (1985);
Robinson v. Commonwealth, 231 Va. 142, 151, 341 S.E.2d 159, 164
(1986). Bowman v. Commonwealth, 248 Va. 130, 133, 445 S.E.2d 110,
111-12 (1994).
We need not resolve questions related to when the Commonwealth
knew of the letters or whether the knowledge of Fairfax
prosecutors should be imputed to Prince William prosecutors
because, upon review of the record, we hold that the letters were
not exculpatory in nature, were not likely to be admissible in
Muhammad's case, were cumulative of other testimony, and the
admission of such letters would not result in a “reasonable
probability that the outcome of the proceeding would have been
different had the evidence been disclosed to the defense.”
The letters do not significantly address the relationship
between Malvo and Muhammad. They do suggest the ability of Malvo
to think and act independently, a subject squarely at issue in
Malvo's case because Malvo maintained that he was “brainwashed” by
Muhammad. As previously discussed herein, Malvo's claim of
insanity was demonstrably different than the issue of his action
under “direction” or “order” of Muhammad.
Also, the ability of Malvo to think and act independently was
amply revealed in other discovery given to Muhammad, such as
transcripts of Malvo's confessions to police and drawings and
writings Malvo made while in custody. In this respect the “Pacman
letters” are merely cumulative in nature.
Muhammad argues that the result of the trial would have been
different had the jury received the letters in evidence. The
admissibility of the letters in Muhammad's case is far from
established. Muhammad only states that they were admissible in
Malvo's case, so they must be admissible in Muhammad's. However,
in Malvo's case the letters may have satisfied an exception to the
hearsay rule as statements of the defendant. Muhammad offers no
theory of admissibility of this evidence in his trial that would
overcome a hearsay objection.
In ruling on the motion for a new trial, the trial court stated:
And I do not believe that the Pacman letters are such as to
require the granting of a new trial. I believe that they are
cumulative, corroborative and collateral ... they are not
material, such that they would not produce an opposite result on
the merits at another trial, or, in the other analysis, that they
are not favorable evidence that could reasonably be taken to put
the whole case in such a different light as to undermine
confidence in the verdict.
Upon review of the record, we agree with the trial court. The
trial court did not err in denying Muhammad's motion for a new
trial based upon the “Pacman letters.”
IX. Jury Selection Issues
In assignments of error 16, 20, 30, and 31, Muhammad complains
of error in the jury selection process. As a preliminary matter,
he asserts that he cannot be tried by any jury in the United
States for capital murder under the terrorism statute. He asserts
that this unique charge alleging “intent to ... intimidate the
civilian population at large” results in the “legal impossibility
to impanel an impartial jury.” His logic is simply stated: because
victims of the crime charged cannot be jurors in the case, no one
from the “civilian population at large” can serve on his jury.
Taking this tautology to its extreme application, Muhammad
concludes, “The entire civilian population of Prince William
County, and indeed, of the entire state and the United States, was
alleged to be the victim.”
We need not address Muhammad's extensive citation of cases
concerning prohibition of victims of a particular crime serving on
the jury trying the crime at issue. The entirety of his argument
is premised upon the status of jurors in this case as victims.
They are not victims. The victim in the capital murder charge
based upon terrorism is Dean Meyers. Arguably, Muhammad's victims
under the facts of the case and the evidence presented also
included Keenya Cook, Muhammad Rashid, Paul LaRuffa, Claudine
Parker, Keely Adams, Hong Im Ballenger, Premkumar Walekar, Sara
Ramos, Lori Lewis-Rivera, Paschal Charlot, Caroline Seawell, Iran
Brown, Kenneth Bridges, Linda Franklin, Jeffrey Hopper, and Conrad
Johnson.
The trial court's task was to empanel an impartial jury. This
task was accomplished by the application of the requirements of
carefully drafted statutes in Virginia and the use of voir dire in
the selection of the panel. The trial court did not err in denying
Muhammad's motion to dismiss the indictment because of a “legal
impossibility” of empanelling a jury on the capital murder charge
based upon terrorism.
With regard to the voir dire process itself, Muhammad maintains
that the trial Court erred in precluding counsel from propounding
certain questions and “limiting voir dire ... regarding capital
punishment attitudes, pre-trial publicity and other issues.”
Additionally, Muhammad makes general arguments attacking the
process of “death qualification” of jurors.
In his brief, Muhammad does not argue that the trial court
abused its discretion in refusing any question he proposed. In
fact, Muhammad does not identify any voir dire question he was not
permitted to ask. In this respect, his assignments of error on
these issues are inadequately supported by argument on brief and
are waived. Rule 5:17(c); Powell, 267 Va. at 135, 590 S.E.2d at
554. Muhammad does specifically complain in assignment of error 32
that the court erred in permitting the Commonwealth to question
jurors during voir dire concerning the “concept of direction or
order of a 42 year old over a 17 year old regarding the terrorism
theory.” His argument consists of one sentence: “the Commonwealth
should not have been able to telegraph its theory of direction or
order.” This single sentence does not constitute sufficient
argument. The remainder of the specific complaints in assignment
of error 32 are not mentioned at all in the argument. Consequently,
they are deemed waived. Rule 5:17(c); Powell, 267 Va. at 135, 590
S.E.2d at 554.
Finally, with regard to the qualification of the jury, Muhammad
argues that the “death qualification” process itself is
unconstitutional. There is no assignment of error concerning this
issue; consequently, it is not properly before us. Rule 5:17(c);
Powell, 267 Va. at 135, 590 S.E.2d at 554.
X. Evidentiary Issues
A. Sergeant Major Mark Spicer
In assignments of error 36, 37, and 62, Muhammad alleges that
it was error for the trial court to permit the testimony of
Sergeant Major Mark Spicer concerning the Commonwealth's sniper
theory. Spicer's testimony came at a time in the trial proceedings
when Muhammad was representing himself with the aid of standby
counsel.
Muhammad maintains that the Commonwealth did not identify
Spicer as an expert witness pursuant to the requirements of a
pretrial order. He further argues that the “slides” used as
demonstrative aids in his presentation constituted “reports”
subject to disclosure under the pretrial order. The pertinent part
of the pretrial order required the Commonwealth's production of
“written reports of autopsies, ballistic tests, fingerprint
analysis, handwriting analysis, blood, urine and breath tests and
other written scientific reports and ... oral scientific reports
that the Commonwealth intends to offer in its case in chief or
that are exculpatory.” In consideration of Muhammad's motion for a
new trial, the trial court held that the pretrial order did not
require disclosure of all experts. It only required the disclosure
of scientific tests and results. Spicer's slides were not in the
nature of scientific tests and results.
Next, Muhammad asserts that Spicer's testimony was irrelevant
and that he should not have been permitted to testify about “Mr.
Muhammad's background, military career, and other factors not in
evidence.” Upon review of the record, we hold that Muhammad did
not make contemporaneous objections concerning these matters;
consequently, they are not preserved for appeal and may not be
considered. Rule 5:25. The trial court did not err in refusing to
exclude Spicer from testifying or in refusing to grant Muhammad's
motion for a new trial on these grounds.
B. Jeffrey Miller
Muhammad alleges in assignment of error 44 that the trial court
erred in permitting Fairfax Police Officer Jeffrey Miller to
“testify as to his opinion.” In argument, Muhammad maintains that
Miller's testimony was expert opinion testimony and that it was
based upon conjecture and surmise and facts not in evidence.
Muhammad appears to complain in his brief, although not in the
assignment of error, that he was not given notice of Miller's
testimony in violation of the pretrial discovery order.
Muhammad did not object at trial on the basis that he had no
notice of Miller's testimony. He did not object at trial that
Miller's testimony was based upon conjecture or surmise or not
supported by facts in evidence. He did not object at trial that
Miller's testimony was expert in nature. We will not consider
these arguments for the first time on appeal. Rule 5:25.
C. Edward Bender
In assignment of error 54, Muhammad argues that the trial court
erred in admitting certain laboratory reports of the Virginia
Department of Forensic Science through Edward Bender, a chemist at
the Federal Bureau of Alcohol, Tobacco and Firearms. His
assignment of error asserts that admission of the report
constituted a “violation of a right to confront the person who
undertook that analysis pursuant to Crawford v. Washington,” 541
U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
Crawford had not been decided at the time of Muhammad's trial.
No objection was made at trial based upon Sixth Amendment rights.
Muhammad's objections were based upon compliance with Code §
19.2-187 not constitutional concerns. The objections on appeal
based upon the Sixth Amendment and Crawford were not preserved at
trial. We will not consider them. Rule 5:25.
D. Professor Steven Fuller
George Mason University Professor Steven Fuller testified over
the defendant's objection about the economic impact of the 47 days
of turmoil caused by the criminal conduct of Muhammad and Malvo.
Assignment of error 60 complains that his testimony was permitted
without notice required by the pretrial discovery order, “and
further was without proper foundation or a basis in the record for
such expert testimony to be admitted.”
The trial court found that Fuller did not generate any reports
which were required to be produced by the pretrial discovery order.
Although Muhammad claims in his brief that “the testimony was
wholly irrelevant,” he also answers his own objection by stating,
“[t]his witness was crucial to the Commonwealth theory that the
October, [2002] shooting influenced the government.” Other than
relevance, an issue he concedes, Muhammad does not offer any
specific basis upon which this testimony was admitted without
proper foundation. Upon review of the record, we cannot say that
the trial court abused its discretion in permitting Fuller to
testify.
E. Alleged Victim Impact Evidence Admitted During Guilt Phase
In assignments of error 38, 39, 40, 41, and 42, Muhammad makes
various objections to the introduction of biographical information
and backgrounds of various victims. Specifically, Muhammad objects
to the trial court's admission of “so-called ‘photographs in life’
” of various shooting victims and the admission of certain “911”
calls, particularly that of Ted Franklin, husband of Linda
Franklin.
At trial, Muhammad did not object to the admission of the
“photographs in life” of various victims. He did raise an
objection to the Commonwealth's use of the photographs during
opening statement, but did not object to the photographs when
admitted. Also Muhammad did not object to the admission of the
first three “911” tapes received in evidence regarding the
shooting of Meyers and LaRuffa. These objections are not preserved.
Rule 5:25.
Three other “911” tapes were admitted into evidence. Muhammad
objected to the tape related to Rashid's shooting as “irrelevant.”
With regard to the tapes involving the shootings of Brown and
Franklin, Muhammad objected that the tapes were irrelevant and
cumulative. The trial court ruled that the tapes were “very
relevant ... and material evidence.” Muhammad objected to the
“911” tape of Franklin's husband as prejudicial. Upon
consideration of the objection, the trial court ruled that the
prejudicial impact was outweighed by its probative value. The
trial court specifically noted that the tape was relevant to the
issue of terror in the community.
Muhammad objected to a question asked of Meyers' brother
regarding Meyers' military service. The trial court sustained the
objection. Every objection made by Muhammad to the testimony of
Parker's sister was sustained. Muhammad did not make a
contemporaneous objection to the testimony of Ballenger's sister;
rather, he waited until her testimony was concluded. Any objection
not raised contemporaneously is waived. Rule 5:25. To the extent
that a continuing or renewed objection was made to the
introduction of a photograph of Ballenger, the trial court did not
err in admitting Exhibit 137A. Similarly, Muhammad's objection to
the testimony of Ballenger's widower was not timely. An objection
during the testimony of Walekar's daughter resulted in a direction
from the trial court to limit the testimony to biographical
information. The objection made by Muhammad to the testimony of
Ramos' widower was sustained. Before Lewis-Rivera's widower
testified, Muhammad objected to what he expected to be
“victim-impact” testimony. The court instructed the Commonwealth
concerning proper limitations upon the testimony and, when it was
offered, there was no objection. Every objection to the testimony
of Charlot's daughter, Franklin's daughter, and Johnson's widow
was sustained.
The record reveals that the trial court carefully limited the
Commonwealth in the guilt phase to short biographical information
about the victim and the manner in which the particular family
member found out about the shooting. The testimony was not
“victim-impact” testimony allowed in the penalty phase. It did not
consist of evidence of economic or psychological loss, or grief.
The trial court did not abuse its discretion in the admission of
such evidence.
F. The Rashid Shooting
Muhammad alleges in assignment of error 46 that evidence of the
robbery and shooting of Muhammad Rashid was immaterial and
irrelevant to the Commonwealth's theories of the case. He also
argues that the probative value of the evidence was outweighed by
the prejudicial impact upon the jury.
At trial the Commonwealth explained the relevance of the
evidence. Rashid was shot and wounded at the Three Roads Liquor
Store. Rashid saw the Caprice outside the store before the
shooting. He identified Malvo as the person who shot him with a
handgun. At the same time that Malvo shot him, he was shot at with
a rifle from a distance. The rifle shot missed its target. The
handgun was the same weapon used to shoot and wound LaRuffa and
the same weapon found at the scene in Montgomery, Alabama where
Malvo dropped it after Parker and Adams had been shot with a high-powered
rifle. The rifle used to wound and kill Parker and Adams at the
same time that Malvo held the handgun during their robberies was
the .223 caliber Bushmaster rifle recovered from the Caprice with
Muhammad and Malvo.
The trial court did not abuse its discretion in the admission
of this evidence because it demonstrated a “singular strong
resemblance to the pattern of the offense charged,” Johnson v.
Commonwealth, 259 Va. 654, 677, 529 S.E.2d 769, 782, cert. denied,
531 U.S. 981, 121 S.Ct. 432, 148 L.Ed.2d 439 (2000), and it
provided significant links connecting Muhammad and Malvo to each
other, to the weapons used, and supported the theories of the
Commonwealth concerning the methodology of their cooperative
criminal efforts.
G. Documents Related to the Caprice
During the testimony of Christopher O'Kupski, a used car
salesman from New Jersey, the trial court admitted certain
“paperwork” related to the ownership and transfer of title for the
Caprice. In assignment of error 48, Muhammad argues that the trial
court erred in admitting these documents because they were “not
properly authenticated” and “were hearsay.” Exhibit 65 consisted
of four documents: the temporary car tag, a registration
application, a reassignment form, and the original title to the
Caprice. Upon questioning by the trial court, the witness stated
that he had “filled out” the documents, with the exception of the
registration application which is a form regularly used by the New
Jersey Division of Motor Vehicles. Assuming, without deciding that
the admission of any or all of these documents was improper, the
error would be harmless. The evidence was offered to show
Muhammad's purchase of and connection to the Caprice. Considering
O'Kupski's testimony apart from the documents themselves, and the
extensive evidence of Muhammad's connection to the Caprice, if the
trial court erred, such error was most certainly harmless error.
H. Charlene Anderson
Charlene Anderson, Muhammad's cousin, testified about her
encounters with Muhammad and Malvo in Baton Rouge, Louisiana in
August 2002. In assignments of error 49, 50, 51, and 62, Muhammad
asserts that her testimony was irrelevant, that “the prejudicial
value outweighed any probative assistance to the fact finder,” and
that the Commonwealth was permitted to question Anderson on
redirect beyond the scope of cross-examination.
Anderson testified that Muhammad told her that he and Malvo
were on a mission for the military to recover explosives. Anderson
was a law enforcement officer. Muhammad asked her to provide him
with bullets. Anderson testified that Muhammad told her that Malvo
was “highly trained.”
Muhammad objected to this testimony on the grounds that it was
hearsay and irrelevant. The trial court overruled the objection on
the grounds that it was not offered for the truth of its content,
namely that Muhammad and Malvo were actually on a mission for the
military and that Malvo actually was “highly trained.” The purpose
for the testimony was to show Muhammad's attempt to obtain
ammunition for his rifle shortly before the string of shootings
began and also to show the nature of the relationship between
Malvo and Muhammad. During cross-examination of Anderson, Muhammad
elicited testimony suggesting that Muhammad and Malvo did not
interact or talk to each other. On redirect, the trial court
permitted the Commonwealth to ask Anderson about a conversation
she overheard between Muhammad and Malvo.
Lastly, with respect to Anderson's testimony, Muhammad asserts
that it was error to permit Anderson to describe the rifle
Muhammad showed her. Muhammad made no such objection at trial. He
may not advance this claim of error for the first time on appeal.
Rule 5:25. Upon review of the record and upon the issues preserved
for appeal, we hold that the trial court did not err in admitting
Anderson's testimony. It was relevant and its probative value
outweighed any claim of prejudicial effect upon the jury.
I. Demonstrative Evidence-Model of the Caprice Trunk and Video
At trial the Commonwealth offered demonstrative evidence
utilizing a model of the trunk of the Caprice and a video
demonstrating how a shooting could take place from the trunk. The
use of demonstrative evidence to illustrate testimony is a matter
entrusted to the sound discretion of the trial court. Mackall v.
Commonwealth, 236 Va. 240, 254, 372 S.E.2d 759, 768 (1988), cert.
denied, 492 U.S. 925, 109 S.Ct. 3261, 106 L.Ed.2d 607 (1989).
Muhammad claims in assignments of error 55, 56, 57, and 58 that
the trial court erred in admitting this evidence because “the
reconstruction was not complete,” it “was out of context,” and
“did not include the materials in the trunk from the time of Mr.
Muhammad's arrest or any specific incident.” Muhammad further
argues that it was error to allow the jury to inspect the Caprice
after viewing the demonstrative replica and the video. He further
complains about the use of “police officer stand-ins” in the video
and that the evidence presented invited the jury to speculate
about what occurred in the shootings, particularly the shooting of
Dean Meyers.
The evidence presented was not expert reconstructive opinion
testimony. Rather it was demonstrative evidence, illustrative in
nature of other evidence presented. Muhammad claims that the
demonstration was not supportive of the Commonwealth's theory of
the case nor based upon other evidence presented. We disagree with
Muhammad.
Scientific evidence of the presence of nitroglycerine and
gunshot residue in the trunk of the Caprice proved that gunshots
were fired from the trunk. A witness testified that he saw a flash
come from the car when Charlot was murdered. Muhammad and Malvo
were seen in the Caprice immediately before the murder of Dean
Meyers. Immediately after the murder of Dean Meyers, Muhammad was
interviewed in the parking lot across the street and in the
presence of the Caprice. Malvo was not seen at the parking lot,
leaving the reasonable inference that Malvo was in the trunk.
Demonstrative evidence concerning how a person could get from the
passenger compartment to the trunk from the inside and how a
person could shoot a rifle from within the trunk was relevant and
helpful to the jury.
The trial court carefully considered the relevance of the
demonstrative evidence and the foundation for its admissibility.
The trial court did not abuse its discretion in permitting this
demonstrative evidence followed by an actual inspection of the
trunk of the Caprice.
J. Testimony Regarding Terror in the Community
Robert Saady, a convenience store operator in Ashland, Virginia
testified at trial about the impact of the sniper shootings on his
business, his employees, and other businesses in the Ashland area.
Montgomery County Police Sergeant Robert Thompson testified at
trial concerning the shootings in the Washington D.C. area.
Muhammad argues in assignments of error 59 and 61 that Saady's
testimony was “irrelevant, speculative, and immaterial,” and that
Thompson's testimony was “cumulative, irrelevant and immaterial.”
He argues that proof of actual fear in the community is not
probative of Muhammad's intent.
School officials in three different school systems also
testified about the impact of the sniper shooting upon personnel,
students and parents, and the operation of the schools. However,
the only assignments of error before this Court involve the
testimony of Saady and Thompson.
With regard to Thompson, Muhammad objected only to specific
questions not the overall nature of the testimony. None of those
specific objections are made the subject of argument in his brief.
With regard to Saady, Muhammad did object to the relevance of his
testimony in its entirety. Section 18.2-46.4 required proof that
Muhammad intended to “intimidate the civilian population at large
or ... influence the conduct or activities of the government ...
through intimidation.” It is an axiom of law and human behavior
that one may infer that a person intends to produce the
consequences reasonably anticipated from his acts. Wilson v.
Commonwealth, 249 Va. 95, 101, 452 S.E.2d 669, 673, cert. denied,
516 U.S. 841, 116 S.Ct. 127, 133 L.Ed.2d 76 (1995); see also
Mickens v. Commonwealth, 247 Va. 395, 408, 442 S.E.2d 678, 687,
rev'd on other grounds, 513 U.S. 922, 115 S.Ct. 307, 130 L.Ed.2d
271 (1994); Green v. Commonwealth, 223 Va. 706, 711, 292 S.E.2d
605, 608 (1982); Barrett v. Commonwealth, 210 Va. 153, 156, 169
S.E.2d 449, 451 (1969). As such, testimony about what was actually
and reasonably produced by Muhammad's conduct was relevant to
prove his intent. The trial court did not err in permitting such
testimony.
K. Motion to Quash Eyewitness Identifications
In assignment of error 25, Muhammad alleges that “the court
erred in denying the motion to quash and suppress as unreliable
various eyewitness identifications.” In his one paragraph argument
in his brief, Muhammad offers insufficient argument in support of
his assignment of error. It is waived. Rule 5:17(c); Powell, 267
Va. at 135, 590 S.E.2d at 554.
XI. Sentencing
A. Torture, Aggravated Battery, or Depravity of Mind [62]
In assignment of error 12, Muhammad asserts that: It was error to
deny the motion to preclude sentence of death based on vileness
factor and allow the Commonwealth to base its request for the
death sentence on the “vileness” factor, since there was no
evidence of torture, aggravated battery, or depravity of mind.
Muhammad raised this issue in a pre-trial motion which the
trial court took under advisement until the evidence had been
presented. At the conclusion of the presentation of the evidence,
Muhammad expressly stated that he objected to the case being
presented to the jury based upon torture or aggravated battery.
Muhammad's assignment of error is in the disjunctive. He claims
that there was no evidence of torture, aggravated battery, or
depravity of mind. He did not object to “depravity of mind” as a
predicate finding for vileness. The trial court ruled that it
would not include “torture” in the instructions. Muhammad's
objections in the trial court do not preserve assignment of error
12. Rule 5:25; Rule 5:17.
B. Victim Impact Testimony
Muhammad argues in assignment of error 11 that it was error
under the due process clause to permit victim impact testimony
during the penalty phase of his trial. He argues that prior to
1998, the Virginia capital sentencing scheme “only contemplated
the presentation of victim impact testimony to the judge prior to
the imposition of sentence.” To the extent that this statement
provides a separate grounds for his assignment of error, it is
barred from review because the issue was not raised in the trial
court. Rule 5:25. With respect to Muhammad's complaint about
victim impact evidence presented to a jury, we have previously
considered such claims and have rejected them. Beck v.
Commonwealth, 253 Va. 373, 385, 484 S.E.2d 898, 906, cert. denied,
522 U.S. 1018, 118 S.Ct. 608, 139 L.Ed.2d 495 (1997); Weeks, 248
Va. at 476, 450 S.E.2d at 389. We see no reason to revisit our
previous decisions.
C. Unadjudicated Criminal Conduct
Muhammad alleges in assignments of error 77, 78, 79, 80, 81,
82, and 83 that the trial court erred in admitting multiple
instances of unadjudicated criminal conduct. As previously
discussed, he has waived assignments of error 78, 79, 80, 82, and
83 for failure to adequately brief the issues. Rule 5:17(c). We
will turn our attention to assignments of error 77 and 81.
Assignment of error 77 states:
The court erred by allowing unadjudicated acts to be received
into evidence by the jury without any standard of proof or
particularized burden on the Commonwealth to prove such acts to a
specific standard of proof in violation of Mr. Muhammad's right to
due process under the Virginia and United States Constitutions.
As stated, assignment of error 77 is unspecific. We must look
to other assignments of error to place his complaint in a
particular context. The only specific issue involving
unadjudicated criminal conduct properly before us on appeal is the
subject of assignment of error 81 concerning testimony about an
alleged escape attempt from the Prince William County Adult
Detention Center.
The Commonwealth presented evidence of the attempted escape
through two witnesses, without objection from the defendant. Only
after the completion of all the evidence from the prosecution and
the defense at the sentencing phase and after both parties had
rested, did Muhammad move to strike the evidence of the attempted
escape. The trial court properly denied the motion because it was
untimely. In order to preserve an issue for appeal, an objection
must be made contemporaneously or it is waived. Muhammad has
failed to preserve assignments of error 77 and 81. Rule 5:25.
D. Testimony of Mildred Muhammad
In assignments of error 84 and 85, Muhammad asserts that the
trial court erred in allowing Mildred Muhammad, (“Mildred”), the
defendant's former wife, to testify about statements made to her
by her lawyer in Tacoma, Washington and a statement made by their
child, Taalibah.
Mildred testified that the lawyer representing her in a custody
proceeding told her to leave town quickly because of fear that
Muhammad would find her and kill her. Muhammad objected to this
statement on the grounds of hearsay. The trial court overruled the
objection because it was not offered for the truth of the matter
asserted; rather, it was offered to show why Mildred left
Washington State and moved to the suburbs of Washington, D.C. The
trial court gave the jury a limiting instruction directing it that
the evidence was to be considered only to prove that she moved
because of the statement made by her lawyer. After further
discussion with counsel, the court gave an additional limiting
instruction drafted by Muhammad. Also, Mildred testified that her
daughter, Taalibah, said to her that if Muhammad “gets out,” she
was concerned that he would kill her mother. Muhammad objected on
the grounds of hearsay.
Muhammad maintains on appeal that allowing such statements
violated his Sixth Amendment right to confront witnesses against
him and violated the rule established in Crawford. Crawford had
not been decided at the time of Muhammad's trial. He made no
objection based upon the Sixth Amendment to the testimony of his
former wife. These issues will not be considered for the first
time on appeal. Rule 5:25.
The trial court did not err in admitting Mildred's testimony
regarding her lawyer's statement to her. It was not hearsay
because it was not offered for the truth of the matter asserted.
Chandler v. Graffeo, 268 Va. 673, 682, 604 S.E.2d 1, 5 (2004). A
proper limiting instruction was given, not once, but twice. One of
the instructions was drafted by Muhammad. A jury is presumed to
have followed the instructions of the trial court. Green v. Young,
264 Va. 604, 611, 571 S.E.2d 135, 139 (2002) (citing Zafiro v.
United States, 506 U.S. 534, 540, 113 S.Ct. 933, 122 L.Ed.2d 317
(1993)).
With regard to Mildred's testimony about her daughter's
statement to her, the record reveals a more complicated context.
Muhammad objected on the grounds of hearsay and relevancy, not on
Sixth Amendment grounds. It is significant that the Commonwealth
did not seek to introduce Mildred's testimony about her daughter's
statement until after the trial court, over the Commonwealth's
objection, ruled that it would allow Muhammad to present to the
jury several letters written to him from his children, including
Taalibah, which gave the impression that the children had no fear
of him. After considerable argument from counsel, the trial court
ruled that all the letters Muhammad sought to introduce would be
allowed and a single statement from Taalibah to her mother would
also be allowed. The trial court ruled that all of this evidence
was admissible pursuant to the state-of-mind exception to the
hearsay rule. The Commonwealth also argued that Taalibah's
statement should be independently admissible as rebuttal to
Muhammad's introduction of the letters.
The nature of the evidence offered by Muhammad was to show his
relationship with his children. He offered out of court statements
in the form of letters from his children for this purpose.
Similarly, the Commonwealth offered an out of court oral statement
from Taalibah for the same purpose. Upon review of the record, we
hold that, if the admission of Taalibah's statement was error, it
was invited error. We will not “notice error which has been
invited by the party seeking to take advantage thereof on appeal.”
Saunders v. Commonwealth, 211 Va. 399, 400, 177 S.E.2d 637, 638
(1970); Clark v. Commonwealth, 202 Va. 787, 791, 120 S.E.2d 270,
273 (1961). Muhammad's introduction of evidence showing the state
of mind of his children toward him-arguing that such proof was
both relevant and not objectionable hearsay-surely invited
evidence of a similar nature from the Commonwealth. Whether as
evidence in its case in chief or as rebuttal evidence, the trial
court did not err in permitting Mildred to testify about
Taalibah's statement.
XII. Jury Instructions
In assignments of error 86, 87, 89, 90, 91, 92, 93, 94, and 95,
Muhammad alleges defects in the instruction of the jury.
A. Aggravated Battery
Muhammad objected to the trial court's instruction to the jury
that it could find the aggravating factor of vileness under Code §
19.2-264.2 from proof of aggravated battery in the death of Dean
Meyers. Muhammad asserts that a single shot has never qualified as
an aggravated battery. We have defined aggravated battery as “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, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979).
Muhammad asserts that, in a shooting case, this Court has always
required more than one gunshot to satisfy the requirements of
aggravated battery.
In Hedrick v. Commonwealth, 257 Va. 328, 513 S.E.2d 634, cert.
denied, 528 U.S. 952, 120 S.Ct. 376, 145 L.Ed.2d 294 (1999), we
noted that the clear language of Code § 19.2-264.2 demonstrates
that “the term ‘vileness' includes three separate and distinct
factors, with proof of any one factor being sufficient to support
a finding of vileness and hence a sentence of death.” Id. at
341-42, 513 S.E.2d at 640. Those factors are torture, depravity of
mind, or aggravated battery to the victim.
The significance and effect of Muhammad's argument attacking
the aggravated battery instruction must be assessed in the context
of the other jury instructions and the jury's actual findings.
Jury instruction 14 dealt with the offense of “the killing of Dean
Meyers as part of the killing of more than one person in a three-year
period.” Jury instruction 14A dealt with the offense of “the
killing of Dean Meyers in the commission or attempted commission
of an act of terrorism.” Each of the instructions included
direction to the jury that the penalty of death could not be
imposed for either of the offenses unless the Commonwealth proved
beyond a reasonable doubt at least one of the following
aggravating circumstances: 1. That, after consideration of his
history and background, there is a probability that he would
commit criminal acts of violence that would constitute a
continuing serious threat to society; or 2. That his conduct in
committing the offense was outrageously or wantonly vile, horrible
or inhuman, in that it involved depravity of mind or aggravated
battery to the victim beyond the minimum necessary to accomplish
the act of murder.
For each of the offenses, the jury's verdict forms expressly
found that Muhammad “would commit criminal acts of violence that
would constitute a continuing serious threat to society,” and that
“the offense was outrageously or wantonly vile, horrible, or
inhuman.” Additionally, each of the verdict forms expressed
findings of both “[d]epravity of mind” and “[a]ggravated battery
to the victim beyond the minimum necessary to accomplish the act
of murder.” Based upon these multiple findings, the jury
unanimously fixed Muhammad's punishment at death for each of the
offenses.
Even if the trial court erred in granting an instruction based
upon aggravated battery, the error would be harmless beyond a
reasonable doubt. The jury's verdict of death for each of the
offenses was predicated upon additional and independent findings
of future dangerousness and vileness based upon depravity of mind.
B. Future Dangerousness Instruction [71] Muhammad argues in his
brief that the future dangerousness instruction given is
unconstitutionally vague. The Court can find no assignment of
error that attacks this instruction on that basis. Furthermore,
his one sentence conclusory argument is inadequate. We will not
consider the argument. Rule 5:17(c).
C. Finding Instruction
In assignment of error 91, Muhammad alleges that the trial
court erred in failing to instruct the jury “that the verdict be
unanimous as to any aggravating factors.” Muhammad's argument on
this point is a one-sentence repetition of his assignment of
error. It is inadequate argument and will not be considered. Rule
5:17(c).
D. Life Without Parole
In assignments of error 87 and 90, Muhammad maintains that the
trial court erred in granting the Commonwealth's proposed
instructions “without including the ‘life without the possibility
of parole’ language.” He further argues that the trial court
should have granted his proposed instruction with such language.
Once again, Muhammad, in one sentence conclusory arguments, simply
repeats the language of the assignment of error and offers no
argument. The assignments of error are deemed waived. Rule
5:17(c).
E. Remaining Issues Relating to Instructions
Numerous other
issues are waived by Muhammad for failure to make sufficient
argument in his brief. He makes insufficient argument that: 1. The
trial court should have granted his instruction K defining
mitigation. Additionally, here the trial court did define
mitigation, it simply refused to highlight any particular evidence
as Muhammad wanted; 2. The trial court should have instructed the
jury that it could consider life without parole in determining
aggravating factors and as a mitigating factor; 3. The trial court
should have given his instruction L because the jury was “left
directionless” as to how to “weigh” mitigation evidence; 4. The
trial court should have instructed the jury that the vileness
factor applied only to Meyers' killing. Additionally, here the
instruction offered was incorrect because the vileness factor
could be found based upon depravity of mind as well; 5. The trial
court should have granted his instruction T regarding mitigating
evidence to be considered in weighing culpability and future
violence. The entirety of his argument consists of the following:
“The jury was entitled to this guidance.” 6. The trial court did
not make it clear in instructions that the jury could impose life
in prison even if it found aggravating factors. The record
demonstrates that the jury was properly instructed on this matter.
For each of these matters (1-6), Muhammad fails to make
sufficient argument in his brief. The matters are waived. Rule
5:17(c).
XIII. Pretrial Publicity and the Right to a Fair Trial
In assignments of error 5, 23, 24, and 28, Muhammad makes
various arguments concerning alleged errors of the trial court
concerning its handling of pretrial publicity. Muhammad argues
that: 1. The trial court erred by denying his motion to issue a
show cause order, quashing subpoenas related to seeking evidence
of pretrial leaks of information concerning the investigation of
Muhammad and Malvo, and denying a request for appointment of a
special prosecutor to investigate pretrial leaks; 2. The trial
court erred by denying Muhammad's motion to close a hearing on a
motion in limine; 3. The trial court erred in failing to prevent
information leaks and to take appropriate corrective action
concerning the leaks; 4. The trial court erred in refusing to
dismiss the charges against Muhammad based upon leaks of
information; 5. The leaks “hindered the defendant's ability to
seat a fair jury despite the change of venue.”
This case attracted extensive media coverage. Counsel for
Muhammad and the Fairfax Commonwealth's Attorney agreed to a
consent order in the Fairfax County Circuit Court, where Malvo's
prosecution was pending, generally prohibiting law enforcement
officials of the Fairfax County Police Department and its civilian
employees from disclosing information in violation of the
Department's own rules, namely, General Order 401.1. Among other
things, General Order 401.1 and the consent order in Fairfax
County Circuit Court specifically prohibit disclosure of evidence
of statements, criminal records, opinions of guilt or innocence,
testing and test results, and statements about expected testimony.
Additionally, counsel for Muhammad and the Commonwealth's Attorney
for Prince William County agreed that all discovery from the
Commonwealth would be sealed to limit dissemination of information
that might have an effect upon jury selection.
Due to continued concerns about allegations of leaks of
information related to the investigation and prosecution of
Muhammad and Malvo, Muhammad filed a motion for rule to show cause
in the Prince William County Circuit Court requesting that the
trial court determine the source of information appearing in the
media concerning the Malvo and Muhammad cases which had been
attributed to law enforcement sources, and take appropriate action.
In the alternative, Muhammad requested that the trial court
appoint a special prosecutor or investigator. The trial court
denied the motion. A similar motion had been presented to the
Circuit Court of Fairfax County and was denied.
Thereafter, Muhammad and the Prince William County
Commonwealth's Attorney agreed to the entry of an order on August
5, 2003, providing in pertinent part:
Law enforcement employees, from all agencies working as members
of the prosecution Task Force, or working with the Task Force,
whether sworn officers/agents or civilian employees shall not
disclose any information to the press or public related to the
investigation leading to the arrests of John Allen Muhammad and
Lee Boyd Malvo, and pending prosecution of John Allen Muhammad and
Lee Boyd Malvo in Prince William and Fairfax County Circuit Courts.
Approximately two weeks before the commencement of Muhammad's
trial, a book entitled “Sniper: Inside The Hunt For The Killers
Who Terrorized The Nation,” was released to the public. This 237-page
publication contained detailed information concerning the
investigation of Muhammad and Malvo. Muhammad filed a motion to
dismiss the charges or for other appropriate relief asserting that
there had been a flagrant violation of the August 5, 2003 order by
numerous and unknown law enforcement agents. In the motion,
Muhammad did not fault the prosecutors in the case and did not
argue that there had been any discovery violations under Rule
3A:11.
The trial court expressed its concern about the matter but
disagreed regarding Muhammad's proposed remedies. In the absence
of any violations of the discovery rules, the trial court declined
to prohibit introduction of specified evidence of the Commonwealth.
The trial court declined to order that the Commonwealth could not
seek the death penalty. The trial court indicated that it would
allow individual voir dire of potential jurors on the issue of pre-trial
publicity. The trial court had already granted a motion for change
of venue and the trial was scheduled to be held in Virginia Beach,
Virginia.
Muhammad asserts that the trial court should have dismissed the
charges, precluded the death penalty, or limited the introduction
of evidence pursuant to the authority of Code § 19.2-265.4.
However, this code section recites potential remedies for failure
to provide discovery under Rule 3A:11. Muhammad expressly stated
in his motion that no discovery violations under the rule had
occurred.
In his motion, Muhammad does not suggest that the
Commonwealth's Attorney's office of Prince William County was the
source of leaks. Additionally, there is no evidence that the
information contained in the book published before trial came from
leaks after the August 5, 2003 order. The trial court noted that
it was likely that most of the information in the book came from
communications prior to the time the trial court was asked to
intervene and prohibit disclosure of any information regarding the
Muhammad and Malvo investigations.
In his brief on this matter, Muhammad cites one statute, which
does not apply, and no cases, in support of his argument that
Muhammad was not tried by a fair and impartial jury or that his
trial was in any way tainted by pretrial publicity. Upon review of
the record, we conclude that the trial court took appropriate
action to limit the effect of pretrial publicity in this case. The
trial court entered a consent order regarding sealing of discovery
responses of the Commonwealth; when asked, the trial court entered
the August 5, 2003 order prohibiting law enforcement and civilian
employees of law enforcement agencies from disclosing to the media
or the public any information concerning the investigation of
Muhammad and Malvo; the trial court granted Muhammad's motion for
a change of venue to a location away from the immediate zone of
pretrial publicity; and, the trial court permitted individualized
voir dire of potential jurors concerning pretrial publicity.
Muhammad does not cite any actual tainting of the jury
selection process or any way in which his trial was compromised by
pretrial publicity. He does not cite any particular consequences
of the trial court's denial of a motion to close a hearing on a
motion in limine or the trial court's refusal to issue show cause
orders or appoint a special prosecutor to investigate leaks. It is
most telling that at trial, of the 125 potential jurors questioned,
only 8 were challenged on grounds that exposure to pretrial
publicity made them inappropriate jurors. We hold that the trial
court did not err with regard to any of the issues raised in
Muhammad's assignments of error 5, 23, 24 and 28.
XIV. Miscellaneous Constitutional Challenges to the Death
Penalty
In assignments of error 13, 21, and 26, Muhammad raises
numerous issues relating to the constitutionality of the death
sentence generally and as it is applied in Virginia. Support for
many of his arguments is not found in his brief. Rather, Muhammad
attempts to incorporate by reference various motions, memoranda,
and argument made in the trial court. We have previously held that
such a practice is impermissible. Schmitt, 262 Va. at 138, 547 S.E.2d
at 194; Burns v. Commonwealth, 261 Va. 307, 319, 541 S.E.2d 872,
881, cert. denied, 534 U.S. 1043, 122 S.Ct. 621, 151 L.Ed.2d 542
(2001). We will not consider such arguments. They are waived. Rule
5:17(c).
Other matters raised in these assignments of error and argued
in Muhammad's brief have been previously decided by this Court:
(1) Virginia statutes fail to provide meaningful guidance to
the jury because the aggravating factors are vague, rejected in
Jackson, 267 Va. at 205-06, 590 S.E.2d at 535 (dangerousness);
Powell, 267 Va. at 136, 590 S.E.2d at 554 (both); Wolfe, 265 Va.
at 208, 576 S.E.2d at 480;
(2) The Virginia scheme fails to provide the jury with guidance
regarding its consideration of mitigating evidence, rejected in
Buchanan v. Angelone, 522 U.S. 269, 275-76 [118 S.Ct. 757, 139
L.Ed.2d 702] (1998); Jackson, 267 Va. at 206, 590 S.E.2d at 536;
Johnson, 267 Va. at 69, 591 S.E.2d at 56; Jackson v. Commonwealth,
266 Va. 423, 429, 587 S.E.2d 532, 538 (2003); Lovitt, 260 Va. at
508, 537 S.E.2d at 874;
(3) The Commonwealth is permitted to prove future dangerousness
by evidence of unadjudicated criminal conduct without any standard
of proof, rejected in Jackson, 267 Va. at 206, 590 S.E.2d at 536;
Powell, 267 Va. at 136, 590 S.E.2d at 554; Johnson, 267 Va. at 70,
591 S.E.2d at 56; Bell v. Commonwealth, 264 Va. 172, 203, 563 S.E.2d
695, 716 (2002), cert. denied, 537 U.S. 1123 [123 S.Ct. 860, 154
L.Ed.2d 805] (2003). Additionally, we note that all Muhammad's
assignments of error regarding unadjudicated criminal conduct have
been rejected either because they were not preserved in the trial
court (Rule 5:25) or they have been inadequately briefed (Rule
5:17(c)). Consequently, no issues related to unadjudicated
criminal conduct are properly before the Court.
(4) The statute allows, but does not require, that a sentence
of death be set aside upon a showing of good cause and permits the
court to consider hearsay in a post-sentence report, rejected in
Jackson, 267 Va. at 206, 590 S.E.2d at 536; Powell, 267 Va. at
136, 590 S.E.2d at 555; Johnson, 267 Va. at 70, 591 S.E.2d at 56;
Jackson, 266 Va. at 430, 587 S.E.2d at 539;
(5) This Court fails to conduct an adequate proportionality
review and passion/prejudice review, rejected in Jackson, 267 Va.
at 206, 590 S.E.2d at 536; Powell, 267 Va. at 136, 590 S.E.2d at
555; Johnson, 267 Va. at 70, 591 S.E.2d at 56.
XV. Statutory Review
Muhammad does not argue that his sentences of death are
excessive, arbitrarily imposed, or disproportionate to other
similar cases. Nonetheless, pursuant to Code § 17.1-313(C)(2), we
must conduct a review of these issues.
Upon review of the record, we conclude that the trial court
conducted the proceedings related to this case with patience and
fairness. Muhammad was given access to the trial court to present
each and every issue he desired to present and was entitled to
present. The jury selection process was untainted by pretrial
publicity. The trial court's granting of the motion to change
venue provided additional protection to the right of the defendant
to a fair trial. The record contains no reversible error. Simply
stated, we find not even a hint of arbitrariness or prejudice in
the conduct of the trial or the jury's imposition of the sentences
of death.
Our proportionality review is not undertaken to “insure
complete symmetry among all death penalty cases.” Orbe v.
Commonwealth, 258 Va. 390, 405, 519 S.E.2d 808, 817 (1999), cert.
denied, 529 U.S. 1113, 120 S.Ct. 1970, 146 L.Ed.2d 800 (2000). The
review we employ is done to “identify and invalidate the aberrant
death sentence.” Id.
With regard to the death sentences imposed for the killing of
more than one person in three years or in the same act or
transaction we have reviewed our cases involving the killing of
two or more people. Of the fourteen cases in which the death
sentence was given, five involved more than two killings. Buchanan
v. Commonwealth, 238 Va. 389, 384 S.E.2d 757 (1989), cert. denied,
493 U.S. 1063, 110 S.Ct. 880, 107 L.Ed.2d 963 (1990) (four victims);
Barnes v. Commonwealth, 234 Va. 130, 360 S.E.2d 196 (1987), cert.
denied, 484 U.S. 1036, 108 S.Ct. 763, 98 L.Ed.2d 779 (1988) (two
victims); Davidson v. Commonwealth, 244 Va. 129, 419 S.E.2d 656,
cert. denied, 506 U.S. 959, 113 S.Ct. 423, 121 L.Ed.2d 345 (1992)
(three victims); Thomas v. Commonwealth, 244 Va. 1, 419 S.E.2d
606, cert. denied, 506 U.S. 958, 113 S.Ct. 421, 121 L.Ed.2d 343
(1992) (two victims); Stewart v. Commonwealth, 245 Va. 222, 427
S.E.2d 394, cert. denied, 510 U.S. 848, 114 S.Ct. 143, 126 L.Ed.2d
105 (1993) (two victims); Burket v. Commonwealth, 248 Va. 596, 450
S.E.2d 124 (1994), cert. denied, 514 U.S. 1053, 115 S.Ct. 1433,
131 L.Ed.2d 314 (1995) (two victims); Goins v. Commonwealth, 251
Va. 442, 470 S.E.2d 114, cert. denied, 519 U.S. 887, 117 S.Ct.
222, 136 L.Ed.2d 154 (1996) (five victims plus the death of a
fetus); Kasi v. Commonwealth, 256 Va. 407, 508 S.E.2d 57 (1998),
cert. denied, 527 U.S. 1038, 119 S.Ct. 2399, 144 L.Ed.2d 798
(1999) (two victims); Bramblett v. Commonwealth, 257 Va. 263, 513
S.E.2d 400, cert. denied, 528 U.S. 952, 120 S.Ct. 376, 145 L.Ed.2d
293 (1999) (four victims); Walker v. Commonwealth, 258 Va. 54, 515
S.E.2d 565 (1999), cert. denied, 528 U.S. 1125, 120 S.Ct. 955, 145
L.Ed.2d 829 (2000) (two victims); Zirkle v. Commonwealth, 262 Va.
631, 553 S.E.2d 520 (2001) (two victims); Hudson v. Commonwealth,
267 Va. 29, 590 S.E.2d 362 (2004) (three victims); Elliott v.
Commonwealth, 267 Va. 396, 593 S.E.2d 270 (2004), cert. denied,
543 U.S. 1081, 125 S.Ct. 875, 160 L.Ed.2d 825 (2005) (two victims);
Winston v. Commonwealth, 268 Va. 564, 604 S.E.2d 21 (2004) (two
victims).
In the cases in which the death sentence was sought but a life
sentence was given, of the fourteen cases only four involved the
killing of more than two persons and three of those cases had
unusual circumstances. Woodfin v. Commonwealth, 236 Va. 89, 372
S.E.2d 377 (1988), cert. denied, 490 U.S. 1009, 109 S.Ct. 1649,
104 L.Ed.2d 163 (1989) (two victims); Mundy v. Commonwealth, 11
Va.App. 461, 390 S.E.2d 525 (1990), cert. denied, 502 U.S. 840,
112 S.Ct. 127, 116 L.Ed.2d 95 (1991) (two victims); Moran v.
Commonwealth, No. 1708-90-3 (Va.Ct.App. Nov. 5, 1991) (two victims);
Stephenson v. Commonwealth, No.2080-91-1 (Va.Ct.App. Jan. 11,
1993) (two victims); Hamlin v. Commonwealth, No. 1279-99-2, 2000
WL 459699 (Va.Ct.App.Apr. 25, 2000) (four victims killed by arson);
Novak v. Commonwealth, 20 Va.App. 373, 457 S.E.2d 402 (1995), cert.
denied, 519 U.S. 1006, 117 S.Ct. 507, 136 L.Ed.2d 397 (1996) (two
victims); Pritchett v. Commonwealth, No.1968-95-3 (Va.Ct.App. Apr.
1, 1996) (two victims); Owens v. Commonwealth, No. 2259-95-1, 1996
WL 666739 (Va.Ct.App. Nov. 19, 1996) (four victims; defendant was
16 years old at time of offense); Williams v. Commonwealth, No.
2423-96-2, 1997 WL 666063 (Va.Ct.App. Oct. 28, 1997) (three
victims; defendant was alleged to be brain-damaged and border-line
mentally retarded); Stoneman v. Commonwealth, No. 3069-96-3, 1998
WL 295932 (Va.Ct.App. June 9, 1998) (two victims); Evans v.
Commonwealth, No.2089-99-3 (Va.Ct.App. Apr. 26, 2000) (two victims);
Burlile v. Commonwealth, 261 Va. 501, 544 S.E.2d 360 (2001) (two
victims); Hairston v. Commonwealth, No. 1722-01-3 (Va.Ct.App. Mar.
28, 2002) (two victims); Cooper v. Commonwealth, No. 0819-03-4,
2004 WL 1876416 (Va.Ct.App. Aug. 24, 2004) (three victims).
Additionally, we reviewed two cases in which the Commonwealth
did not seek the death penalty for the killing of two or more
persons. In those two cases there were only two murders in each
case. Smith v. Commonwealth, No. 0628-93-1 (Va.Ct.App. Feb. 1,
1994) (two victims); Hobbs v. Commonwealth, No. 1301-99-1 (Va.Ct.App.
Mar. 17, 2000) (two victims).
Apart from the Cooper case, except where unusual circumstances
existed, all the capital prosecutions in Virginia that we have
reviewed wherein more than two people were murdered and the
prosecution was based upon Code § 18.2-31(7) or (8) resulted in
the death penalty being imposed.
This case represents the first capital murder case with a death
sentence under the terrorism statute. We are unaware of any state
that has reviewed a death sentence predicated upon a similar
provision. We think the death penalty is not an excessive nor a
disproportionate penalty for a case with evidence of ten murders
and six malicious woundings. Similarly, the evidence presented on
the terrorism count independently supports the imposition of the
death penalty.
Muhammad's crimes cannot be compared to any other case in the
Commonwealth. The evidence of vileness and future dangerousness in
support of the jury's verdict justifies its sanction of death.
Muhammad with his sniper team partner, Malvo, randomly selected
innocent victims. With calculation, extensive planning,
premeditation, and ruthless disregard for life, Muhammad carried
out his cruel scheme of terror. He did so by employing stealth and
secrecy using a sniper methodology that put his victims at great
risk while reducing his own. He employed a weapon with truly
awesome power to inflict massive injury upon his victims. Muhammad
recruited a younger boy, Malvo, and carefully trained and guided
him in this murderous enterprise.
His victims came from all walks of life who were engaged in
everyday pursuits when their lives were tragically ended or
altered. Paul LaRuffa, Muhammad Rashid, Hong Im Ballenger,
Claudine Parker, and Kelly Adams were closing and leaving their
places of business. Sarah Ramos was sitting on a bench in front of
a store. Lori Lewis-Rivera was vacuuming her car at a gas station.
Paschal Charlot was crossing an intersection as a pedestrian.
Caroline Seawell and Linda Franklin were putting packages in their
respective automobiles. Iran Brown was walking to school. Dean
Meyers, Kenneth Bridges, and Premkumar Walekar were putting fuel
in their vehicles at gasoline stations. Jeffrey Hopper was leaving
a restaurant after a meal. Conrad Johnson, a bus driver, was
standing in the doorway of his bus. Muhammad inflicted death or
massive injury upon these victims as he pursued his mission of
terror.
Muhammad's threats to those within the communities he stalked
including the warning, “Your children are not safe anywhere at
anytime.” He communicated his desire to extort money from the
government through the demand to deposit ten million dollars in an
account connected to a card for accessing the account through
automated teller machines. Whatever else may have been his
intentions, he certainly intended to intimidate the civilian
population and to influence the conduct and activities of
government. He did so with breathtaking cruelty. If society's
ultimate penalty should be reserved for the most heinous offenses,
accompanied by proof of vileness or future dangerousness, then
surely, this case qualifies.
XVI. Conclusion
Upon review of the record and upon consideration of the
arguments presented, we find no reversible error in the judgment
of the trial court. Further, we find no reason to commute or set
aside the sentences of death. We will affirm the judgment of the
trial court. Affirmed.
Justice KINSER, concurring. Justice AGEE, with whom Justice
LACY and Justice KOONTZ join, dissenting in part and concurring in
part.
