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BRAMBLETT v. COMMONWEALTH OF VA


BRAMBLETT

v.

COMMONWEALTH OF VA


February 26, 1999
Record Nos. 981394, 981395

EARL CONRAD BRAMBLETT

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ROANOKE COUNTY
Roy B. Willett, Judge
Present: All the Justices
OPINION BY JUSTICE A. CHRISTIAN COMPTON


Near 4:30 a.m. on Monday, August 29, 1994,
Dorothy Ross McGee was operating a vehicle through the Town of
Vinton in Roanoke County en route to her place of employment. As
she drove past a two-story residence located at 232 East Virginia
Avenue, a white pickup truck operated by a white male, who was
alone, pulled onto the street from the area of the residence,
followed her briefly, and then "shot" past her,
exceeding the 35-mile-per-hour speed limit.

About the same time, Robert Scott Arney,
travelling on Virginia Avenue past the home, "noticed a
large cloud of smoke coming across the highway, very thick."
He determined the residence was on fire and, using a radio,
reported the fire to authorities.

Firefighters and police responded to the scene.
Upon entering the burning residence, the authorities found four
bodies. In the downstairs living room, the body of Teresa Lynn
Fulcher Hodges, an adult, was on a couch. She had died from
ligature strangulation and had been doused with gasoline; the
body was still burning when discovered.

The body of William Blaine Hodges, an adult,
was on the bed in an upstairs bedroom. He had died from a gunshot
to the left temple. His body was not burned.

The bodies of two children were on a bed in
another upstairs bedroom. Winter Ashley Hodges, 11 years of age,
had died from two gunshots to the head; the muzzle of the weapon
had been pressed against the skin when fired. Winter’s body had
not been burned.

The body of Anah Michelle Hodges, three years
of age, was in the same bed with her sister. She had died from
two gunshot wounds to the head; the muzzle of the weapon was
within inches of the skin when fired. Anah’s body was
"covered with soot" and had sustained "mild
burns."

The mother and her daughters died during the
early morning hours of August 29 and before the fire. Blaine, the
children’s father, died "many hours before the female
victims died," probably during the afternoon of Sunday,
August 28.

On July 30, 1996, appellant Earl Conrad
Bramblett, 54 years of age, was indicted for the following
offenses: Capital murder of Winter as part of the same
transaction as the murder of Anah, Code Sect. 18.2-31; the
murders of Anah, Blaine, and Teresa, Code Sect. 18.2-32;
arson, Code Sect. 18.2-77; and three counts of using a
firearm in the commission of the murders, Code
Sect. 18.2-53.1. Apprehended on July 30 in Spartanburg,
South Carolina, the defendant waived extradition. He was brought
to Virginia and held in the Roanoke County jail.

Upon pleas of not guilty, the defendant was
tried by jury during 14 days in October and November 1997. In the
guilt and penalty phases of the trifurcated trial, 98 witnesses
testified.

The jury found defendant guilty of all charges,
and during the penalty phase of the capital proceeding, fixed
defendant’s punishment at death based upon the vileness and
future dangerousness predicates of the capital murder sentencing
statute, Code Sect. 19.2-264.4.

On December 16, 1997, following a post-trial
sentencing hearing during which the trial court considered a
probation officer’s report, the court sentenced defendant to
death for the capital murder. The court also imposed sentences in
the noncapital cases in accordance with the jury’s verdicts as
follows: For each of the three first degree murder convictions,
life imprisonment and a $100,000 fine; for the arson conviction,
life imprisonment and a $100,000 fine (the court suspended the
fine); and for the three firearms convictions, imprisonment for
13 years.

The death sentence is before us for automatic
review under former Code Sect. 17-110.1(A) (now
Sect. 17.1-313(A)), see Rule 5:22, and we have
consolidated this review with defendant’s appeal of the capital
murder conviction. In addition, by order entered July 13,
1998, we certified from the Court of Appeals of Virginia to this
Court the record of defendant’s appeals in the noncapital
convictions (Record No. 981395). The effect of the certification
is to transfer jurisdiction over the noncapital appeals to this
Court for all purposes. Former Code Sect. 17-116.06(A) (now
Sect. 17.1-409(A)). We have consolidated those appeals with
the capital murder appeal.

As required by statute, we shall consider not
only the trial errors enumerated by defendant but also whether
the sentence of death was imposed under the influence of passion,
prejudice, or any other arbitrary factor, and whether the
sentence is excessive or disproportionate to the penalty imposed
in similar cases. Former Code Sect. 17-110.1(C) (now
Sect. 17.1-313(C)).

Initially, we shall dispose of two appellate
issues that require no extended discussion. First, defendant
contends the trial court erred by denying his motion to dismiss
the capital murder indictment on the grounds that Virginia’s
death penalty statute is unconstitutional facially and as
applied. He argues the statute dealing with the capital
sentencing proceeding is unconstitutional because the aggravating
factors "are vague and do not adequately channel the
discretion of the jury." There is no merit in this
contention; we previously have rejected it in other cases and
will not revisit the issue here. See e.g., Smith
v. Commonwealth, 219 Va. 455, 474-79, 248 S.E.2d 135,
146-49 (1978), cert. denied, 441 U.S. 967 (1979).

Second, defendant contends the trial court
erred "by failing to dismiss the indictments due to
prosecutorial misconduct." According to Bramblett, the
prosecutor withheld evidence in violation of court orders and
asked questions during the trial "which he knew were
objectionable." This assignment of error is procedurally
defaulted because defendant did not ask the trial court to
dismiss the indictments on the foregoing grounds. We do not
entertain such issues that are raised for the first time on
appeal. Rule 5:25.

A proper understanding of the remaining issues
raised by defendant requires a brief summary of the facts. The
evidence bearing upon the commission of these crimes is
undisputed. During the guilt phase of the trial, Bramblett, who
did not testify, presented only four witnesses. According to
settled principles of appellate review, we will draw all
reasonable inferences fairly deducible from the proven facts in
the light most favorable to the Commonwealth.

The witness Arney, upon discovery of the fire,
found handwritten notes on the rear and side doors of the home.
The note on the side door read "Had an emergency. Back late
Sunday, early Monday. Teresa."

Upon arrival, the firefighters found fire
throughout the structure. Subsequent examination of the premises
revealed the presence of petroleum accelerants and gasoline in
various areas of the home. Investigators also found that the
telephone line had been cut.

Blaine and Teresa Hodges had attended an Amway
conference in Charlottesville on the previous Friday night,
leaving their children with a relative. Blaine picked up the
children on Saturday. A friend spoke with Blaine by telephone
about 5:00 p.m. on Saturday. Later on Saturday, a friend
telephoned the Hodges’ residence but no one answered and an
answering machine did not activate. About 4:30 p.m. on Sunday,
Teresa left a telephone message with a friend to arrange for the
children’s carpool on Monday, the first day of the school
session. The friend returned the call and talked with Teresa at a
number Teresa furnished, which was for a public pay telephone
located at a gas station on Virginia Avenue.

On Sunday, a neighbor saw Bramblett with Teresa
and the children. Bramblett, Teresa, and the children were seen
together in a nearby national forest on Sunday afternoon; the
forest ranger who saw them noted a black tailgate on Bramblett’s
white truck.

Another friend went to the Hodges’ home at 7:15
p.m. on Sunday; he found the note on the door. Two other friends
went to the Hodges’ home at 8:45 p.m. on Sunday; they also found
the note on the door. They observed the Hodges’ two motor
vehicles parked nearby, and the home was dark except for a light
burning in the basement. They telephoned the house but received
no answer and the answering machine did not take the call.

When the witness McGee observed the pickup
truck with a "dark" tailgate leave the Hodges’ home
about 4:30 a.m. on Monday, she thought the truck’s color was
"sort of pinkish red." The jury was shown a video
reenactment of a truck leaving the area where McGee had seen the
truck; the reenactment included the burning halogen street lights
present when McGee saw the truck. Referring to the video, McGee
identified the truck as pinkish-red; that truck actually was
white in color.
[1]

At the time of these crimes, Bramblett, an
acquaintance of the Hodges family for years, drove a 1972 model
white pickup truck with a black tailgate. On the morning of the
fire, Bramblett, an expert in silk screening, arrived at his
workplace at 5:08 a.m. The workplace is 4.7 miles from the
Hodges’ home, a 12-minute drive in the early morning. Although
defendant told his supervisor he had slept in his truck, his hair
was neatly combed, he was freshly shaven, and his clothes were
clean.

Bramblett drove past the Hodges’ house at 8:30
a.m. on the morning of the fire; he did not stop. Later, he told
his ex-wife about the fire and his belief that the police would
"blame it on me."

A year prior to the fire, Bramblett had mailed
two packages to his sister, who lives in Indiana. When these
packages were opened, with the sister’s permission, they were
found to contain photographs of the Hodges children and 62
audiotapes of Bramblett’s voice. On the tapes, Bramblett
expressed a sexual interest in Winter Hodges and his belief that
the child’s parents were trying to "set him up" or
entrap him in a sexual act with her.

A firearms expert testified about weapons,
bullets, and casings found at the crime scene, and cartridges
found in Bramblett’s truck and a storage room he had rented. The
expert opined that all the bullets recovered from the bodies had
been fired from the same weapon, and that the rifling
characteristics were consistent with weapons manufactured by QFI
Arminius; an Arminius handgun, its barrel removed, was found in
Blaine Hodges’ bedroom. The fact that the barrel had been removed
made it impossible for the expert to determine whether the pistol
had fired any of the recovered bullets. The expert further opined
that one cartridge retrieved from the pistol at the scene and one
found in Bramblett’s truck were fired by the same firearm
"to the exclusion of any other gun."

Another forensic scientist analyzed the
chemical composition of the bullets recovered. He testified that
two of the bullets retrieved from the victims had the identical
composition as a bullet found in the storage room. A cartridge
found on steps in the home was "analytically
indistinguishable" from a cartridge found in defendant’s
truck.

A single pubic hair, described as a
"characteristically Caucasian pubic hair," found on the
bed between the two children, was determined to microscopically
match a sample of Bramblett’s pubic hair. Bramblett is white, as
were the victims. DNA testing of the hair matched Bramblett.

Tracy Turner, a convicted felon who had been
incarcerated with defendant at the Roanoke County jail testified
about conversations he had with Bramblett about their addictions.
Turner was addicted to drugs, and Bramblett said he was
"addicted to young girls."

They discussed the charges the two men faced.
Bramblett "said that he had been caught with that girl, the
young girl, and that he was caught downstairs with her and that
the mother sent them upstairs — sent her upstairs and that
he had choked the life out of her." According to Turner,
Bramblett said he "walked around for a little bit and then
he went upstairs. He said he went first to the man’s room and
then he went to the girls’ room and he finished the business,
took care of his business."

Bramblett also told Turner about a
"forensic science book" from which he learned that
"if you burn a house that it takes the rifling off of
bullets, destroys hair samples and things like that."
According to Turner, Bramblett said "that’s the reason"
he set fire to the Hodges’ home. Bramblett told Turner his
defense would be to suggest that the murders were "a drug
hit." The defendant offered evidence that in the late 1980s,
Blaine and Teresa Hodges consumed cocaine supplied by one Michael
Fulcher, Teresa’s half-brother. During that period Fulcher, who
is presently incarcerated, was an undercover "cooperative
witness" for the federal Drug Enforcement Administration.
Blaine Hodges, a discharged postal service employee, was about to
begin serving a six-month jail sentence in September 1994 for
embezzlement of postal funds.

Initially, the police believed they were
confronted with a murder/suicide, mainly because of the location
of the weapon beside Blaine’s body. This theory was abandoned
quickly, however, when the results of the autopsies showed Blaine
died hours before the rest of his family. The investigators also
quickly concluded that the fire was not accidental but was
"a set fire."

The investigators wanted to talk to Bramblett
because of his friendship with the Hodges family. About 5:00 p.m.
on the day of the crimes, Bramblett came to the Vinton Police
Department in response to a telephone request from Sergeant Mark
A. Vaught, an investigator. Vaught told defendant the Hodges
family had been killed in a fire. He did not mention how the
victims died. At that point, defendant "seemed to appear to
cry for a period of time." Vaught saw no tears. Bramblett
then became angry and struck a file cabinet with his fist. A few
minutes later, after Vaught had been joined by Barry Keesee,
Special Agent, Virginia State Police, Bramblett, during a
discussion "just about some general things" said,
"Are you going to charge me with murder?"

Near 9:30 a.m. on Wednesday, August 31, William
F. Brown, Jr., Assistant Chief of Police for the Town of Vinton,
accompanied by Blaine Hodges’ brother, talked with defendant at
the nearby Apple Valley Motel, where Bramblett had rented a room.
At first, Bramblett was calm and then he "became
. . . very emotional. He started crying, shaking real
bad. He blurted out, ‘Go ahead and arrest me for murder.’"
He said that he thought about suicide and that he actually had
written a suicide note, according to Brown. After defendant
"calmed down," he promised to meet Brown at twelve noon
at the Vinton Police Department, but he failed to appear.

We shall now turn to the remaining issues
defendant raises on appeal. He contends the trial court erred by
denying his pretrial motion for a change of venue, claiming
extensive media coverage of the crimes and the charges against
him. At Bramblett’s request, the trial court took the motion
under advisement pending selection of a jury. After the jury was
selected, the court denied the motion. The court did not err.

There is a presumption a defendant will receive
a fair trial in the jurisdiction where the crimes are committed.
To overcome the presumption, a defendant must establish that the
citizens of the jurisdiction harbor such prejudice against him
that it is reasonably certain he cannot receive a fair trial. Kasi
v. Commonwealth, 256 Va. 407, 420, 508 S.E.2d 57, 64
(1998). The decision whether to grant a motion for a change of
venue lies within the sound discretion of the trial court. Id.

Here, 68 potential jurors were questioned. Only
seven persons were excused because of fixed opinions about
Bramblett that would have impaired their ability to serve
impartially. The remaining persons were either unaware of media
reports about the crimes or clearly stated their ability to put
aside any information they may have heard or read.

The defendant did not overcome the presumption
that he could receive a fair trial in Roanoke County. There was
no abuse of discretion by the trial court, especially given the
ease with which the jury was selected. See id. at
420-21, 508 S.E.2d at 64-65.

Next, defendant contends the trial court erred
by finding that Bramblett was competent to stand trial. We do not
agree.

In November 1996, Dr. Evan S. Nelson, a
clinical psychologist, was appointed by the trial court to serve
as defendant’s mental health expert for sentencing. After Dr.
Nelson interviewed Bramblett in jail, he became concerned about
Bramblett’s competency and suggested "that someone else
perform an evaluation."

In January 1997, defendant filed a pretrial
motion, pursuant to Code Sect. 19.2-169.1, seeking a
competency evaluation. The statute provides for such an
evaluation if "there is probable cause to believe that the
defendant lacks substantial capacity to understand the
proceedings against him or to assist his attorney in his own
defense."

The court then appointed Dr. Joseph I. Leizer,
a clinical psychologist, to conduct a competency examination and
subsequently ordered defendant examined by Dr. Leigh D. Hagan,
another clinical psychologist.

In May 1997, the trial court heard the
testimony of the three psychologists and found that Bramblett was
competent stating, "I have no question about his
competency." Elaborating, the court said that "as a
factual matter," the defendant "has substantial
capacity to understand these proceedings against him, and he has
substantial capacity to assist his Attorneys in his own
defense." These findings are fully supported by the record.

Dr. Leizer diagnosed Bramblett with a
"delusional disorder, persecutory type." He testified
defendant had "paranoid delusions about how evidence is
being manufactured against him."

The witness had interviewed Bramblett, listened
to many of Bramblett’s audiotapes, and read some of the many
letters defendant had written. Defendant told the witness that
the police had been "following him for years on end and
looking for reasons to arrest him." Bramblett also believed,
according to the witness, that the Hodges family "were
involved in an undercover Police sting aimed at him" and
that Winter was working undercover for the police, being
"used by her parents for that purpose."

Dr. Leizer disagreed with Dr. Nelson’s
conclusion that Bramblett was incompetent. Dr. Leizer said that
Bramblett was intelligent, witty, charming, verbal, and
articulate; that he was able to relate information to his
attorneys; that he understood the charges facing him and the
adversarial nature of the proceedings; and that he felt his
attorneys were working hard for him, acting in his best interest.

Dr. Hagan agreed that Bramblett had a
delusional disorder of the persecutory type. However, he
considered Bramblett "meets the criteria for
competence." He opined that defendant "is keenly
motivated to work vigorously" with his attorneys on his
defense, even though there are disagreements about "the
principal focus of the defense." Dr. Hagan agreed that even
though Bramblett "may have this paranoid delusion
problem," it "does not render him incompetent or unable
to cooperate with his Attorneys."

Next, defendant contends the trial court erred
by denying his motion to suppress the audiotapes seized in
Indiana and by admitting the tapes and their contents into
evidence. When Bramblett’s sister received the two packages in
August or September 1993, she placed them, unopened, in a
cabinet. Bramblett called his sister in 1993 and asked her to
keep the boxes for him. He said, "In case anything happens
to me, you’ll have these."

On September 2, 1994, defendant arrived at the
sister’s home about 7:30 p.m. and left about 2:30 the next
morning. He told the sister the police had questioned him about
the crimes "and he felt that they were going to arrest
him."

Bramblett related "he was with the mother
and the two children and that they had gone for a long
drive" the Sunday afternoon before the fire. When they
returned to the Hodges’ home from the drive, Teresa thought
Blaine was not at home and "she wondered where he was
at," according to Bramblett. Bramblett told his sister that
he stayed at the Hodges’ home until twelve midnight on Sunday.

The sister overheard Bramblett talking with
another sister on the telephone; he stated that a Roanoke lawyer
"had advised him since he hadn’t been charged with anything
to leave town and stay away from the police." Bramblett left
the Indiana home abruptly when the sister thought she "saw a
policeman outside."

After Bramblett left, the sister was reminded
by her daughter about the boxes, which defendant had not
mentioned. She "was afraid to keep the boxes" and
"wanted to put these boxes in the hands of someone I could
trust," according to the sister’s testimony. The local
sheriff was called. The sister and her husband executed a form
consenting to the search of the boxes. She opened the boxes; the
sheriff inventoried and photographed the contents.

In a pretrial motion, defendant moved to
suppress the items obtained from the boxes. He asserted the
sister lacked authority to deliver the packages to the police and
that the police were required to obtain a warrant before opening
the boxes and examining the contents. Defendant notes that the
"tapes contain inculpatory evidence, i.e., Bramblett’s
inappropriate sexual thoughts and comments concerning Winter
Hodges, and reflect Bramblett’s belief that Blaine Hodges was
involved in some sort of a conspiracy to frame Bramblett for
something."

The trial court denied the motion, ruling there
was "no evidence . . . to find a basis for
unlawful search or seizure." The trial court was correct.

The sister had boxes addressed to her in her
exclusive possession. Bramblett imposed no restrictions with
respect to the contents. Thus, he had no remaining expectation of
privacy in the items.

The Fourth Amendment does not restrict the
authority of the police to accept evidence volunteered by private
citizens. See Ritter v. Commonwealth, 210
Va. 732, 739, 173 S.E.2d 799, 804 (1970) (package addressed to
son voluntarily surrendered by mother in lawful control of it).
The sister’s consent to the search of the boxes was clearly
sufficient to authorize the sheriff’s actions.

Next, the defendant contends the trial court
erred by failing to grant his motion to suppress evidence
obtained from the Apple Valley Motel and by admitting the
evidence at trial. We do not agree.

When Bramblett failed to keep his twelve noon
appointment at the Vinton Police Department on Wednesday, August
31, the police "had some concerns about his safety,"
given his earlier statements about suicide. Two officers returned
to the motel, saw defendant’s truck parked outside, knocked on
the door to his room, and received no response. Then, they
directed the owner to open the door to defendant’s room. When the
door was opened, one officer "stepped into the doorway"
of the small room while the other officer stood "beside the
door." Neither officer actually entered the room. At that
time, Bramblett arrived in a taxicab and the officers
"talked to him briefly."

Later that same day, two brothers of Blaine
Hodges decided to go to the motel to talk with Bramblett,
believing the police might "clear Earl." One of the men
wore "a wire" at the suggestion of the police. While in
the room, one brother "saw a .22 caliber bullet in the
crease of [a] chair." The defendant’s room was searched the
next day pursuant to warrant.

The trial court found that the officers saw
nothing as they were standing at the doorway to the room and that
the warrantless opening of the motel room door was not grounds
for suppression of the evidence seized pursuant to the later
search warrant. The trial court ruled correctly.

Even assuming one of the officers briefly
entered the room, as the defendant argues, no search was
conducted and no evidence was seized. The subsequent search was
conducted pursuant to warrant, which Bramblett never challenged.

Thus, the items seized under the warrant
(certain writings, a detective magazine, a .22 caliber revolver,
cartridges, and cartridge cases) were properly admitted in
evidence. Also, there is no merit to defendant’s claim that the
brother who wore the "wire" became "an agent of
the Commonwealth."

Next, defendant contends the trial court erred
by permitting Tracy Turner to testify at trial. We reject this
contention.

The prosecutor learned in January 1997 about
Bramblett’s statements to the felon Turner and planned to use him
as a rebuttal witness at trial. In October 1997, the prosecutor
was advised that Bramblett "had figured out" Turner was
going to testify. Because of this development, the prosecutors
believed Turner’s "value as a rebuttal witness" was
"diminished." On "Thursday or Friday" before
Turner testified on Wednesday, October 29, the prosecutor decided
to call Turner as part of the Commonwealth’s case-in-chief. The
prosecutor immediately disclosed Turner’s name and his criminal
record to the defendant.

Prior to Turner’s testimony, defendant moved
the court to bar Turner from testifying in the Commonwealth’s
case-in-chief because of late disclosure of Turner’s criminal
record. The trial court overruled the motion, stating the
cross-examination would be delayed if the defendant chose, thus
giving defendant’s court-appointed investigator an opportunity to
investigate Turner.

Immediately following Turner’s testimony,
defendant moved for a mistrial or for an instruction to the jury
to disregard the testimony. Defendant asserted the prosecutor’s
failure to disclose Turner’s criminal history violated the
court’s prior discovery orders and due process. The prosecutor
had interpreted the discovery order to require disclosure of
criminal histories of only case-in-chief witnesses, an
interpretation endorsed by the trial court.

The trial court denied defendant’s motion,
accepting the prosecutor’s representation concerning Turner. The
court found that the prosecution "acted in a rather timely
manner" in providing the criminal history to defense
counsel. The court repeated its offer to grant defendant a
delayed cross-examination "if you learn more" about
Turner.

Of course, defendant was entitled to disclosure
of exculpatory evidence, including evidence that impeaches the
credibility of a prosecution witness, under Brady v. Maryland,
373 U.S. 83, 87 (1963). Robinson v. Commonwealth,
231 Va. 142, 150, 341 S.E.2d 159, 164 (1986). Evidence of the
prior convictions of a witness is impeachment evidence under Brady.
See Correll v. Commonwealth, 232 Va. 454,
465, 352 S.E.2d 352, 358, cert. denied, 482 U.S.
931 (1987).

A defendant is entitled to "sufficient
time to investigate and evaluate the evidence in preparation for
trial." Lomax v. Commonwealth, 228 Va. 168,
172, 319 S.E.2d 763, 765 (1984). Here, the defendant had five or
six days to investigate Turner’s background. The defendant did
not take advantage of the court’s offer to postpone
cross-examination, and he has not demonstrated any specific
prejudice from the timing of the disclosure. If exculpatory
evidence is obtained in time for it to be used effectively by the
defendant, and there is no showing that an accused has been
prejudiced, there is no due process violation. Read v. Virginia
State Bar
, 233 Va. 560, 564-65, 357 S.E.2d 544, 546-47
(1987). Hence, we hold the trial court did not err in its various
rulings connected with Turner’s testimony.

Next, Bramblett argues the pubic hair should
not have been admitted into evidence because, first, "the
evidence was not relevant," and, second, "the
prejudicial effect of the evidence far outweighed any probative
value."

There is no merit to this argument. The
evidence was relevant to establish Bramblett’s presence in the
room where the children’s bodies were found. This legitimate
probative value far outweighed any incidental prejudice to
defendant, and the trial court did not abuse its discretion in
admitting the evidence.

Next, defendant argues "the evidence was
insufficient to support a conviction." We disagree.

The evidence supporting the convictions was
overwhelming. It was gathered as the result of outstanding police
work by town, county, state, and federal authorities.

A further recitation of the evidence we already
have summarized is unnecessary. Indeed, we have not recited many
facts pointing to defendant’s guilt. It is sufficient to point
out that Bramblett admitted to a jail inmate that he killed the
victims and set the house on fire to destroy evidence. His many
statements to police and others clearly show his guilty knowledge
of the circumstances of the murders. He was with the Hodges
family just prior to the murders. A truck closely resembling
Bramblett’s truck was observed leaving the scene as the fire was
discovered. Bullets, shell casings, and cartridges found in
Bramblett’s possession matched similar items found in the home.
Defendant’s audiotapes and writings demonstrate the motive for
the killings. His clothing, found at his workplace, was stained
with the same accelerants used in the arson. A pubic hair
matching Bramblett was found in the same bed as the children’s
bodies. Clearly, the jury was fully justified, based on the
evidence, in concluding defendant was the killer of the Hodges
family and that he set their house on fire.

Finally, we have considered Bramblett’s
remaining assignments of error, and summarily reject them. He
contends the trial court should have directed a verdict of life
imprisonment during the penalty phase of the capital murder
proceeding because the jury was misinformed about his prior
record in several respects. Also, he contends the evidence was
insufficient to support a finding of vileness and/or future
dangerousness, and that imposition of the death sentence was
arbitrary.

None of these contentions has any merit. We
will respond, however, to defendant’s claim that during the
penalty phase "all of the factors used by the Commonwealth
to enhance punishment concern events that occurred two decades
before the current offenses and thus cannot be properly used as
evidence of future dangerousness."

Defendant is referring to the testimony of
women who lived in the Bedford-Roanoke area during the late
1970s. They testified they knew Bramblett during that period,
when they were in their early teens. Each testified that
Bramblett furnished them alcohol and drugs, after which he
engaged in sexual intercourse with them, and that he required
them to perform various sex acts upon him. The "time
gap" of decades affected only the weight to be accorded the
evidence, not its admissibility. George v. Commonwealth,
242 Va. 264, 273, 411 S.E.2d 12, 18 (1991), cert. denied,
503 U.S. 973 (1992).

Moreover, the factual basis for defendant’s
contention is inaccurate. There was abundant other evidence
presented on the question of future dangerousness including his
recent conduct with 11-year-old Winter Hodges as well as his
extensive and long-term planning and execution of the murders,
all of which established his dangerousness.

Upon the question of disproportionality and
excessiveness, we determine whether other sentencing bodies in
this jurisdiction generally impose the supreme penalty for
comparable or similar crimes, considering both the crime and the
defendant. Kasi, 256 Va. at 426, 508 S.E.2d at 68. See
former Code Sect. 17-110.l(C)(2) (now
Sect. 17.1-313(C)(2)). In determining whether a sentence of
death is excessive or disproportionate in a case like this, we
examine the records of all capital murder cases previously
reviewed by this Court in which the death sentence was based upon
both the vileness and future dangerousness predicates, including
capital murder cases where a life sentence was imposed. Jenkins
v. Commonwealth, 244 Va. 445, 462, 423 S.E.2d 360, 371
(1992), cert. denied, 507 U.S. 1036 (1993).

Based upon this review, we hold that
defendant’s sentence is not excessive or disproportionate to
penalties generally imposed by sentencing bodies in the
Commonwealth for similar conduct. Generally, the death sentence
is imposed for a capital murder when, as here, the defendant is
convicted of a senseless murder of a young child, Clozza
v. Commonwealth, 228 Va. 124, 138, 321 S.E.2d 273, 282
(1984), cert. denied, 469 U.S. 1230 (1985), and
when the defendant is also convicted of killing other persons. See
Goins v. Commonwealth, 251 Va. 442, 469, 470 S.E.2d
114, 132, cert. denied, 519 U.S. 887 (1996).

Therefore, we hold the trial court committed no
reversible error, and we have independently determined from a
review of the entire record that the sentence of death was
properly assessed. Thus, we will affirm the trial court’s
judgment in both the capital murder case and the noncapital
cases.

Record No. 981394 — Affirmed.

Record No. 981395 — Affirmed.

 

FOOTNOTES:

[1] The defendant assigns error to the
trial court’s action in admitting the video into evidence. The
defendant did not object at trial to the playing of the video,
and that failure to present the claim below bars review upon
appeal. Rule 5:25.

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