Tried by a jury under indictments charging him with the rape of Wanda Faye Thompson McCoy and with the willful, deliberate, and premeditated killing of the same victim during the commission of rape, capital murder as defined in Code § 18.2-31(e). Roger Keith Coleman was found guilty as charged. The jury fixed his punishment for rape at confinement in the penitentiary for life.

In the second part of the bifurcated proceeding required by Code §§ 19.2-264.3 and -264.4 in the capital murder case, the jury fixed Coleman's sentence at death. On April 23, 1982, after considering the probation officer's report, the trial court imposed the death sentence; in the same order, the court entered judgment on the jury verdict in the rape case. We have consolidated the automatic review of Coleman's death sentence with his appeal of his conviction of capital murder and have given them priority on our docket.

The evidence against Coleman was entirely circumstantial; it will be stated in the light most favorable to the Commonwealth. Bradley D. McCoy, 21, testified that on the date of the murder he and his wife, Wanda Faye McCoy, who was 19, lived on the outskirts of Grundy in a rented house at Long Bottom on Slate Creek. The McCoys, who had been married for two and one-half years, had no children. Wanda was not employed; her husband was a parts clerk for United Coal Company, working the second shift from 3:00 p.m. to 11:00 p.m. On March 10, 1981, at 2:15 p.m., McCoy went to work, leaving Wanda at home alone.

McCoy testified that about 9:00 p.m. he telephoned Wanda "to see if she was okay." They talked about 10 or 15 minutes, discussing among other things how they would spend an anticipated income tax refund. McCoy said he always telephoned his wife at this time, when he took a break from work, because she was "more or less afraid to stay by herself" and was "shy." She did not indicate anyone was with her and McCoy believed she would have told him "if anyone was there or had been there that day."

At the end of his shift, McCoy drove home in his car, arriving about 11:15 p.m. Although Wanda usually left the porch light on for him, no outside lights were shining when he knocked on the door; Wanda usually kept both the storm door and the wooden front door locked. Receiving no answer, McCoy opened the storm door, which was unlocked, then opened the front door with his key, and entered the living room. He saw that the coffee table had been moved, there were "slight drips of blood on the floor," and the light and the television were on.

He called for Wanda but heard nothing. Going to the back bedroom, where a light was on, he found his wife lying on her back on the floor. Her hair was pulled over her face, she had a wound in her chest, and there was blood beside her head. Her arms were stretched behind her head and her legs were lying straight out and apart. She appeared to be dead; McCoy did not touch her. He found no signs of forced entry into the house.

McCoy telephoned his father, Max McCoy, known as Hezzie, who lived 400 to 500 yards away, and told him that Wanda had been killed. McCoy turned on the porch light, initially waited for his father, but after a few minutes ran to meet him. After Hezzie called the sheriff's office at 11:21 p.m., McCoy and his father returned to McCoy's house, looked at the body but did not touch it, and met the police officers who began to arrive.

McCoy said that Coleman's wife was a younger sister of Wanda's, that the Colemans lived in the home of Coleman's grandmother, which was a five-minute walk from the McCoy house, and that on the night before Wanda's death the Colemans stopped by the McCoys' but only Coleman's wife came into the house. Sergeant Steven D. Coleman, of the Buchanan County Sheriff's Department, arrived about 11:25 p.m. accompanied by another officer. He tried to check Wanda's neck for a pulse but found it "so badly torn up" that he could not do so. There was a large gaping hole in the front of her neck; a pool of blood was around her head.

Other local and state law enforcement officers promptly came to the McCoy house to assist in the investigation. Randall S. Jackson, Chief of Police for the Town of Grundy, arrived about 11:27 p.m. He observed what appeared to be bloodstains on the floor and wall of the living room, and "tracks of blood, where something had been dragged" through the hallway and into the bedroom in which he found Wanda's body. Jackson felt her wrist, which was "very warm," but found no pulse. He sent an officer for Dr. Thomas D. McDonald, the medical examiner, and arranged to secure the premises. At daybreak, Jackson measured the depth of Slate Creek, located 75 to 100 yards from the McCoy house, at 10 to 12 inches.

Dr. McDonald, who lived nearby, arrived at 11:35 p.m. He made a superficial examination of Wanda, confirmed that she was dead, but did not move her pending the arrival of a State Police special investigating unit. Wanda was lying on her back, partially clothed, with her panties around her left ankle, arms over her head, and legs extended. She had a large laceration of the neck and two puncture wounds in her chest. Dr. McDonald determined that the cause of death was the "slashing wound to the throat." The body was still warm, rigor mortis had not set in, and Dr. McDonald estimated that Wanda had died about 10:30 p.m., or within 30 minutes before or after that time.

A neighbor testified that when she took the trash out of her house about 10:30 p.m. she saw the porch light burning at the McCoy residence. The Commonwealth offered color photographs showing the scene of the crime and different views of the victim's body. Over Coleman's objection, the trial court admitted 14 of the photographs after excluding two as repetitious and one as inflammatory.

The victim's body was removed to Roanoke where Dr. David W. Oxley performed an autopsy on March 12. Dr. Oxley testified that death was caused by a "slash wound" of the throat with cutting of the "right carotid artery, jugular vein and larynx." He also found two stab wounds in the chest. One, measuring 1 1/4 inch by 1/16 inch, with a depth of 4 inches, had penetrated the heart and lung. Because there was little or no hemorrhaging from this wound Dr. Oxley concluded it had been inflicted after death. The other, measuring 1 3/4 inch by 1/16 inch, also with a depth of 4 inches, had penetrated the liver; Dr. Oxley was of opinion that this wound was inflicted after death or close to the time of death.

He described the neck wound as a single cut, two to three inches in depth without "hesitation marks," leading from the right side of the neck to the left and downward. Dr. Oxley found two foreign hairs in the victim's genital area. He submitted these, samples of her pubic hairs, blood, swabs from her mouth, hands, vagina, and rectum, and the panties found wrapped around her left foot, to Elmer Gist, Jr., a forensic scientist.

Out of the presence of the jury, the trial court conducted a hearing on the admissibility of statements made by Coleman on March 11 and 12 to Jack E. Davidson, Special Agent with the Virginia State Police, one of the investigating officers. Davidson testified there were several suspects, including Coleman, whose activities police were "exploring at that particular time." He and another officer went to Coleman's grandmother's residence on March 11 and asked Coleman "if it was all right, if he could talk to us." According to Davidson, Coleman said "sure," and the interview was conducted, beginning at 12:32 p.m., as the two sat in Davidson's car; the other officer remained at the house.

Davidson explained that he did not give Coleman Miranda warnings because the suspect was "not in an accusatory status" but was "in an investigative status." Davidson said Coleman was not under arrest and was free to go at any time. The officer was unable to record his interview because of a malfunction of the equipment, but he made notes of Coleman's statement. Coleman was a coal miner, employed by T J and M Coal Company.

His statement was exculpatory, purporting to account in detail for his time on the night of the killing. Thus, he said he left his home at 8:30 p.m., left the Speedy Market at 9:05 p.m., went to other listed places at specified times before and after finding that his shift at the mine had been terminated, and arrived at 10:50 p.m. at the bathhouse in town where he took a shower and changed his clothes before returning home. When Davidson asked Coleman for the clothes he wore that night, Coleman turned over to him a plastic bag of clothing and a knife. In the bag was a pair of dirty blue jeans; the bottom 10 to 12 inches of each pants leg were wet. Davidson had the clothing delivered to the Bureau of Forensic Science in Roanoke.

On March 12, Davidson interviewed Coleman again. Davidson testified that Coleman was still a suspect, but was free to leave if he wished to do so, and was not given Miranda warnings. Davidson told Coleman that he had investigated the mine site and found there was no water there to get his blue jeans wet. Coleman then said when he took a shower at the bathhouse, he probably laid his blue jeans down and water from the shower got them wet. Subsequently, Coleman relinquished another knife to Davidson.

Coleman was arrested on April 13. Over Coleman's objection, the trial court ruled the statements of March 11 and 12 were admissible because Coleman gave them when he was neither under arrest nor in a "custodial interrogation situation" but instead was free to leave; Miranda warnings, therefore, were not required. A portion of one of the statements relating to polygraph examinations was excluded.

On March 13, Davidson testified, he met Coleman "at his in-laws' residence" and asked if he would consent to a search for body fluids and hair. Davidson said Coleman agreed and, after being informed of his constitutional right to insist upon a search warrant, signed a consent authorizing a warrantless search of his body. The consent permitted removal of any property "or body fluids."

Davidson testified that Coleman also consented to have samples of body hair taken. Over Coleman's objection, the trial court ruled, on the basis of Davidson's uncontradicted testimony, that Coleman had consented to a search of his body and that all items taken in the search would be admissible. Davidson stated that samples of Coleman's blood, head hairs, pubic hairs, and saliva were taken and mailed to the Bureau of Forensic Science.

Elmer Gist, Jr., a forensic serologist employed by the Commonwealth of Virginia Bureau of Forensic Science, testified that he made an analysis of the items delivered to him by Dr. Oxley and the investigating officers. He said the two apparently foreign hairs found in Wanda's pubic area were, in fact, not those of the victim but were consistent with pubic hair samples taken from Coleman.

Gist concluded that these two hairs came either from Coleman or, by a possible but unlikely coincidence, from some other person of the same race whose hair had the same color, diameter, general configuration, and microscopic characteristics. Gist testified that Coleman was a secretor, one whose "blood type factor" is present "in semen, saliva or other body fluids," and that 80% to 85% of the population are secretors. Gist determined that Coleman had Type B blood, a rare type possessed by only 10% of the population. Wanda's blood was Type O, a type which 40% to 45% of the population have; her husband's was Type A.

From Gist's examination of the vaginal specimen taken from the victim's body he found that spermatozoa had been deposited in her vagina by a secretor with Type B blood. He also determined that a bloodstain on Coleman's blue jeans was made by Type O human blood. Gist found blood on one of Coleman's knives but not in sufficient quantity to enable him to determine whether it was human or animal blood. According to Gist, Coleman's blue jeans were dirty and had "blackish stains on the upper legs in particular." Photographs of the victim depicted a very dark, fine substance on her hands. Charles Crabtree, owner of the Speedy Market, testified that Coleman came into his store on March 10 about 8:00 p.m. and stayed about ten minutes.

Gary Scott Stiltner testified that on March 10 he was scheduled to work his regular 3:30 to 11:30 shift but had not gone to work. About 10:15 or 10:20 p.m. Coleman came to his trailer in Boyd's Trailer Park, where he and his wife, Sandra, and infant daughter lived, and asked for the return of a tape which Stiltner's wife had borrowed. Upon receiving the tape, Coleman departed. Sandra K. Stiltner recounted an incident that occurred on Friday, March 6.

Shortly after her husband went to work that afternoon, Coleman stopped by her trailer and discussed tapes with her and a neighbor. During a brief interval when they were alone, Coleman asked her what she liked to drink and offered to get her whatever she wanted, but she declined and left to join other neighbors. Sandra Stiltner also testified that when Coleman stopped by for his tape on March 10 she glanced at a clock and noticed that it was 10:20 p.m.

Roger L. Matney, a convicted felon, testified that when he had been incarcerated in the same cell block with Coleman in the county jail, Coleman had described for him the killing and rape of the victim. According to this witness, Coleman drew on a newspaper a diagram of the McCoy house and said he and another man were in the house and after the victim's husband called her about 9:00 p.m., Coleman's companion cut her and she began to scream.

Matney believed Coleman said the other man was "Danny Ray." Coleman told Matney the two men took the victim to the bedroom and both raped her. The knife "was supposed" to have been hidden under Black Watch Bridge. Coleman began to say something about a paper towel when the conversation ended. (Other evidence of the Commonwealth showed that a paper towel was found near the victim's body).

Elmer T. Miller, a forensic scientist, testifying for the defense, said that from his examination of swabs received from Dr. Oxley he determined that the very dark, fine substance found on the victim's hands was soil and particles of plant material, not coal dust. Other witnesses for the defense testified to times and places they had seen Coleman on the night of the crimes.

Kermit Stiltner said he saw Coleman at the Speedy Market about 8:00 p.m. and talked with him 10 or 15 minutes. Johnny L. Stiltner, a night watchman at T J & M Coal Company, who also regularly drove miners to the mine, saw Coleman in work clothes at Breeding's Store about 9:25 p.m. and told him Coleman had been "laid off" his job which normally began at 9:30. Coleman followed Stiltner to the mine, "got his stuff," and left between 9:30 and 9:45.

Ronald G. Perkins, second shift foreman at T J & M Coal Company, saw Coleman about 10:00 p.m. when he came to the mine for his boots and hat. Coleman was wearing blue jeans, which the witness did not think were wet. Philip VanDyke, who worked at another mine, met Coleman at the mouth of Looney's Creek about 10:10. They talked for 10 to 15 minutes and parted company about 10:25 to 10:30.

Other evidence established that from the mouth of Looney's Creek it was approximately four miles to the McCoy's *41 neighborhood and eight miles to Boyd's Trailer Park, the McCoy residence being approximately halfway between the two. VanDyke clocked in at his mine across the creek at 10:41. Gary Owens saw Coleman alone in his truck near the Gary Scott Stiltner trailer between 10:00 and 11:00.

Coleman's wife, Patricia, 17, testified that between 8:00 and 8:30 on March 10 her husband left for work from his grandmother's house where they were living. She did not recall when he came home but he explained that he had returned early because he had been "laid off." The night before the murder, she and Coleman drove to the McCoys' house. Patricia returned some recipes to her sister while Coleman remained in the truck. The Colemans often visited the McCoys and "a couple of times" stayed with Wanda when her husband was at work.

Garnett M. Coleman testified that Coleman was her grandson but she and her husband had adopted him when he was 14 and he had lived with her nearly all his life. According to her, Coleman left to go to work on March 10 about 8:30 and returned about 11:05. She said that she "got mixed up" when she first told one of the investigating officers Coleman came home at 11:30. Coleman, 23, testified in his own defense. He described the events at Boyd's Trailer Park on March 6.

That day, he said, he and David Keller got off work about 6:30 or 7:00 a.m., went to the trailer of Keller's brother, Tom, and spent the day drinking. Several of them went to the Stiltner trailer and in the company of Sandra Stiltner listened to tapes, including one Coleman brought from his truck. After 30 to 45 minutes, Coleman departed, forgetting to take his tape.

Coleman's testimony about his activities on March 10 closely followed the statement he gave to Special Agent Davidson on March 11. Coleman said he left home at 8:30, drove to the Speedy Market, got a box there, talked to Crabtree and Kermit Stiltner, and left about 9:05. He drove to the mouth of Looney's Creek, arriving at 9:10, but his transportation to the mines had already left. He drove on to Breeding's Store, where he found the "man trip" (vehicle used to transport workers to the mines) stopped.

Johnny Stiltner and David Keller were there; Stiltner told Coleman his shift had been laid off. After five or ten minutes Coleman drove back to Grundy but remembering that he had left his mining equipment at the mine, he turned around about 9:25 or 9:30, and drove to the mine site, arriving about 9:45 or 9:50. He *42 talked to Perkins, the second-shift foreman, Johnny Stiltner, and David Keller. Leaving the mine site about 10:00 he met VanDyke on the road. At the mouth of Looney's Creek they talked for 15 or 20 minutes. Coleman said he looked at his watch for the exact time only at 8:30 when he left home and about 9:05 when he left the Speedy Market. All other times to which he testified were estimated.

Coleman said he drove to Boyd's Trailer Park to see Tom Keller but when he discovered the lights were out at Keller's trailer he went to the Stiltner trailer and retrieved **870 the tape he had left there. It was then about 10:40 to 10:45. Coleman drove to the bathhouse in Grundy, arrived about 10:50, showered, left about 11:00, and was at home about 11:05. His pants probably got wet when he threw his work clothes on the floor of the shower.

He said the blue jeans he had been wearing that evening were the pants he had worked in the two previous evenings. He acknowledged that on March 11 he told Davidson that he probably got his pants wet at the mines. He conceded that in going from the mouth of Looney's Creek to Boyd's Trailer Park and then to thebathhouse he passed the McCoys' residence, but he denied having stopped there or having murdered or raped Wanda McCoy. He found out about the crimes when Peggy Stiltner, his wife's sister, came to his grandmother's house after midnight.

Coleman denied having made any admission to Matney or any other inmate of the jail. He said he had heard some details of the crime from his wife's family. He related to inmates what he had learned, that the victim's throat had been cut, she had been stabbed twice, she only had her socks on, and a paper towel had been found. According to Coleman, his uncle, who apparently got the information from Randall Jackson, told him about the towel. On cross-examination Coleman acknowledged that he knew Bradley McCoy worked the second shift.

Later in his testimony, when he was asked how Type O blood got on his blue jeans, he replied that the cat at his house might have scratched someone there, or that someone at the mine the night before might have been cut. Coleman was then shown a picture of the victim depicting blood on her right leg and was asked whether the blood on the left leg of his pants had not actually come from the right leg of the victim. An objection to this question was overruled; Coleman answered in the negative.

Coleman said the blood found on one of *43 his knives was from squirrels he had killed in September or October. Coleman said "[i]t seemed like ... [the officers] came just about every other day, sometimes every day, for three or four days in a row," he was willing to talk with them, and he cooperated because he was "trying to clear" himself "so the police would gon on and find who did this."

The Commonwealth called two rebuttal witnesses. Patricia Coleman said she was not aware the cat had scratched anyone in such a fashion as to cause blood to get on her husband's blue jeans; Randall Jackson denied having told Coleman's uncle about a paper towel found at the scene of the crimes.

Shortly before 11:00 p.m. on March 18, 1982, the jury found Coleman guilty of capital murder. On the next morning, Coleman's motion to set aside the verdict on the ground the evidence was insufficient was denied. The sentencing phase of the trial followed promptly.

Brenda F. Rife, 36, testified as a witness for the Commonwealth. She described an attempted rape committed by Coleman on April 7, 1977. On that date, the witness stated, because of flooding several days earlier, electric and telephone services were cut off and all the schools were closed. As she was a school teacher, she remained at home with her six-year-old daughter after her husband left for work that morning. Coleman, whom she had never seen before, was admitted to the house when he asked for a drink of water.

After some conversation, Coleman pulled a gun and forced her to tape her daughter's hands and feet and place her in a child's rocking chair. Coleman then walked Mrs. Rife at gunpoint upstairs to the bedroom where he ordered her to undress. When she refused, he ripped open the bathrobe she wore, threw her on the bed, and got on top of her. She struggled, scratched the intruder on the neck, and attempted to dissuade him from his purpose. Seizing an opportunity to escape when Coleman went for his gun, which he had laid down, Mrs. Rife ran downstairs, picked up her daughter, and fled from the house. Coleman ran after them and attempted to pull them back inside but in the ensuing struggle Mrs. Rife seized his weapon, threw it under the porch, and screamed for help. As neighbors came to the rescue, Coleman ran away.

The entire episode lasted approximately ten minutes, according to Mrs. Rife, and throughout this time Coleman " never really raised his voice," which she described as "[v]ery cold." She recalled, "It was just like, do it or die." The Commonwealth introduced a certified copy of Coleman's conviction for the attempted rape of Brenda Rife. He was sentenced to serve three years in the State penitentiary by order entered July 29, 1977, by the Circuit Court of Buchanan County.

The defense called two ministers as witnesses. Thomas F. Bradley, a jail chaplain, visited Coleman six days a week during the period of three months prior to trial when Coleman had been incarcerated in jail in Bristol. Bradley stated that his communications with Coleman were privileged. Contrary to the recommendation of his attorneys, Coleman declined to waive the privilege and asserted that he did not want to appear to be "using the Lord" in any way. The minister testified that he believed Coleman was sincere in his religious convictions.

Michael Trent, minister of Little Prater Church of Christ, had known Coleman since he was about nine years old but had not had "a good connection with him" during the past ten years. He had come to know him personally after Coleman was incarcerated. Coleman decided to be baptized about a month after he was first confined and, at his request, Trent baptized him in jail. Coleman pursued Bible study in jail; Trent believed he was sincere. Coleman testified again in his own behalf. He said that after the jury found him guilty it made no difference whether the penalty was death or life imprisonment, that "[i]t's up to the Lord now, anyway."