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CHERRIX v. COMMONWEALTH OF VA (59860)


CHERRIX

v.

COMMONWEALTH OF VA


February 26, 1999
Record Nos. 981798 & 982063

BRIAN LEE CHERRIX

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ACCOMACK COUNTY
Glen A. Tyler, Judge
Present: All the Justices
OPINION BY JUSTICE ELIZABETH B. LACY


In this appeal, we review the capital murder
conviction and death penalty imposed upon Brian Lee Cherrix,
along with his convictions for forcible sodomy, two counts of
using a firearm in the commission of a felony, and possessing a
firearm after being convicted of a felony.

I. Facts

On the night of January 27, 1994, 23 year-old
Tessa Van Hart was working as a pizza delivery person at a pizza
delivery restaurant on Chincoteague Island. A man telephoned the
restaurant and ordered a pizza to be delivered to an address in
the "Small Piney Island" area of Chincoteague. Around
7:45 p.m., Van Hart left the restaurant to deliver the pizza.

When Van Hart failed to return from the
delivery, the Chincoteague police were notified, and they began a
search for Van Hart. Shortly after midnight on January 28, the
police found Van Hart’s vehicle behind a vacant home
approximately one mile from the Small Piney Island area. Van
Hart’s body was found in the back seat.

An autopsy revealed that Van Hart died from two
gunshot wounds to the head. The autopsy also showed that she had
been sodomized and had suffered bruises and abrasions on her
forehead, cheek, nose, and mouth sometime around the time of
death. In the yard of the house to which Van Hart was to have
delivered the pizza on January 27, the police found two
bloodstains which DNA typing showed to be consistent with Van
Hart’s blood.

The murder of Tessa Van Hart remained unsolved
for over two years. On June 3, 1996, however, Brian Lee Cherrix,
who was in the Accomack County Jail pending sentencing on
unrelated charges, contacted the Accomack County Sheriff, Robert
Crockett. Cherrix said that he had information concerning the Van
Hart murder that he would share with police in return for
leniency on his pending sentencing. Cherrix told Crockett that
his cousin, Robert Birch, III, had killed Van Hart. Cherrix
claimed that Birch had told him in February 1994 that he, Birch,
had lured Van Hart to an unoccupied residence by ordering a
pizza, raped and shot her, and then discarded the rifle used in
the crime in a nearby creek. Birch died in 1995.

The state police began an underwater search of
the creek for the murder weapon. When Cherrix was informed that
the dive team had not recovered the rifle, he agreed to go to
Chincoteague to show the officers the location of the rifle
according to what Birch supposedly had told him. At the search
site, Cherrix directed Trooper Mark Fowler to the place he
claimed that Birch had told him he had thrown the rifle. Fowler
testified at trial that, while Cherrix maintained that he was
only relating facts imparted to him by Birch, Cherrix would
occasionally lapse into the use of the first person in describing
how and where the rifle came to be located in the creek. The
divers recovered a .22 caliber Marlin rifle at the location
indicated by Cherrix.

Later that same day, Cherrix was taken to the
City of Chesapeake, where he was interviewed by state police
investigator Lloyd Dobbs. After being advised of his Miranda
rights and signing a written waiver of those rights, Cherrix gave
several differing versions of the story Birch supposedly had told
him, all the while using hand and arm gestures to demonstrate how
Birch supposedly had disposed of the rifle. Sheriff Crockett then
took Cherrix back to Accomack County Jail.

Although Birch had died in 1995, the police
conducted an investigation of his whereabouts on the night of the
murder, and they concluded that he was not a suspect in the Van
Hart murder. In August 1996, after having been sentenced on
unrelated charges to 20 years imprisonment with all but nine
years suspended, Cherrix was transferred to the custody of the
Virginia Department of Corrections to serve his sentence.

On April 16, 1997, Cherrix was returned to
Accomack County Jail on charges of uttering and grand larceny.
During the drive from Brunswick Correctional Center to the
Accomack County Jail, Chincoteague Assistant Police Chief Edward
Lewis interviewed Cherrix regarding the Van Hart murder. After
Lewis advised Cherrix of his Miranda rights and Cherrix agreed to
discuss the matter, Cherrix told Lewis yet a different version of
what he claimed had happened on the night of the murder, still
maintaining that Birch had committed the murder.

On April 17, 1997, counsel was appointed for
Cherrix’s uttering and grand larceny charges. On April 25, 1997,
Cherrix submitted a written request to the Accomack County Jail
authorities asking to see Lewis. Lewis went to the jail to see
Cherrix. After Lewis advised Cherrix of his Miranda rights and
Cherrix reaffirmed that he wanted to speak with Lewis, Cherrix
confessed to the murder and sodomy of Van Hart. Cherrix then
accompanied Lewis and an Accomack County sheriff’s deputy to
Chincoteague, where he directed the officers on a tour of various
locations that he had described in his confession.

II. Proceedings

Cherrix was indicted for capital murder,
forcible sodomy, two counts of using a firearm in the commission
of those offenses, and one count of being a felon in possession
of a firearm. Code Sects. 18.2-31, -67.1, -53.1, and -308.2.
At the conclusion of the guilt stage of a bifurcated jury trial
conducted pursuant to Code Sects. 19.2-264.3 and
–264.4, the jury convicted Cherrix on all counts.

After hearing evidence on the issue of
punishment, the jury sentenced Cherrix to death for the capital
murder, life imprisonment for the forcible sodomy, a total of
eight years for using a firearm in the commission of those
offenses, and five years for possessing a firearm after being
convicted of a felony. Cherrix’s death sentence was based upon
the jury’s finding of both "future dangerousness" and
"vileness." See Code Sect. 19.2-264.4. The
trial court reviewed the presentence report and victim impact
statements and imposed all of the sentences fixed by the jury.

Cherrix appeals his capital murder conviction,
Record No. 981798. We have certified Cherrix’s appeal of his
non-capital convictions from the Court of Appeals, Record No.
982063, and have consolidated the two appeals.

III. Issues Previously
Decided

Cherrix filed a pre-trial motion asking the
trial court to declare the Virginia death penalty statutes
unconstitutional on a number of grounds. He also filed pre-trial
motions asking the trial court to allow the use of a jury
questionnaire, to allow individual sequestered voir dire, and to
supplement the trial court’s voir dire with questions submitted
by defense counsel in order to ascertain possible juror bias
necessary to empanel an impartial jury.
[1] He now
appeals the trial court’s denial of those motions, raising issues
that we have considered and rejected in previous cases:

(1) Virginia’s two statutory aggravating
circumstances of "future dangerousness" and
"vileness" are not unconstitutionally vague. Beck v.
Commonwealth
, 253 Va. 373, 387, 484 S.E.2d 898, 907, cert.
denied, ___ U.S. ___, 118 S.Ct. 608
(1997)("vileness"); Clagett v. Commonwealth, 252
Va. 79, 86, 472 S.E.2d 263, 267 (1996), cert. denied,
519 U.S. 1122 (1997)("future dangerousness").

(2) Virginia’s penalty-stage instructions
adequately inform the jury regarding the concept of
"mitigation." Swann v. Commonwealth, 247 Va.
222, 228, 441 S.E.2d 195, 200, cert. denied, 513
U.S. 889 (1994).

(3) The use of unadjudicated conduct to prove
"future dangerousness" without proof of such conduct
beyond a reasonable doubt is not unconstitutional. Goins v.
Commonwealth
, 251 Va. 442, 453, 470 S.E.2d 114, 122, cert.
denied, 519 U.S. 887 (1996).

(4) Allowing, but not requiring, a trial judge
to reduce a sentence of death to life imprisonment on a showing
of "good cause" is not unconstitutional. Breard v.
Commonwealth
, 248 Va. 68, 76, 445 S.E.2d 670, 675, cert.
denied, 513 U.S. 971 (1994).

(5) Consideration of hearsay evidence or
information in a presentence report during the sentencing phase
of a capital murder case is not unconstitutional. Goins,
251 Va. at 453, 470 S.E.2d at 122; O’Dell v. Commonwealth,
234 Va. 672, 701-02, 364 S.E.2d 491, 507-08, cert. denied,
488 U.S. 871 (1988).

(6) The review provided by this Court on direct
appeal in capital cases is not unconstitutional. Mickens v.
Commonwealth
, 252 Va. 315, 320, 487 S.E.2d 302, 306 (1996), cert.
denied, 520 U.S. 1269 (1997).

(7) Capital murder defendants do not have the
constitutional right to individual and sequestered voir dire of
prospective jurors. Stewart v. Commonwealth, 245 Va. 222,
229, 427 S.E.2d 394, 399, cert. denied, 510 U.S.
848 (1993).

(8) Capital murder defendants do not have the
constitutional right to require the trial court to mail a
questionnaire to all potential jurors. Strickler v.
Commonwealth
, 241 Va. 482, 489-90, 404 S.E.2d 227, 232, cert.
denied, 502 U.S. 944 (1991).

We find nothing in Cherrix’s arguments here
that warrants a change in our previous positions.

IV. Pre-Trial Issues

A. Failure to Suppress
Cherrix’s Confession

Prior to trial, Cherrix filed a motion asking
the trial court to suppress all of his statements to the police
"on or after June 7, 1996, in that on each and every
occasion the statements secured from the defendant, if any, were
obtained while the defendant was in custody and denied his right
to counsel."

At the suppression hearing, Cherrix testified
that he requested counsel in the presence of Sheriff Crockett on
the return trip from Chesapeake to Accomack on June 7, 1996, and
that he invoked his right to counsel when he was being
interrogated by Lewis on the trip from Brunswick Correctional
Center to Accomack County Jail on April 16, 1997. He admitted
that he had asked to speak with Lewis on April 25, but he denied
that Lewis advised him of his Miranda rights before interrogating
him on that date.

Sheriff Crockett testified that, while in
Chesapeake on June 7, 1996, Cherrix had been advised of his
Miranda rights and that he signed a written waiver. He also
testified that Cherrix never invoked his right to counsel or his
right to remain silent during the return trip to Accomack.

Lewis testified that on April 16, 1997, he
advised Cherrix of his Miranda rights, and that Cherrix elected
to speak to him. He denied that Cherrix, "at any time
. . . on April 16," requested counsel or otherwise
indicated that he wished to stop answering questions. Finally,
Lewis testified that when he went to see Cherrix at the Accomack
County Jail on April 25 pursuant to Cherrix’s request, he again
advised Cherrix of his Miranda rights, and that Cherrix never
indicated on that date that he wished to have counsel present or
that he wished to stop answering questions.

Following the suppression hearing, the trial
court denied Cherrix’s motion to suppress his confession. On
appeal, Cherrix claims that he clearly invoked his right to
counsel on April 16, that interrogations nevertheless continued
without counsel being provided, in violation of his Fifth
Amendment rights, and that the statements he made during those
interrogations were thus inadmissible. See Miranda v.
Arizona
, 384 U.S. 436 (1966); Edwards v. Arizona, 451
U.S. 477 (1981).
[2] Cherrix contends that the trial court’s denial of his
motion to suppress the confession therefore constituted
reversible error. We do not agree.

Admissibility of a defendant’s statements is an
issue to be decided by the trial court, which evaluates the
credibility of the witnesses, resolves any conflicts in the
testimony, and weighs the evidence as a whole. Watkins v.
Commonwealth
, 229 Va. 469, 477, 331 S.E.2d 422, 429 (1985), cert.
denied, 475 U.S. 1099 (1986). Before admitting statements
made by a defendant during custodial interrogation, the trial
court must determine whether the defendant knowingly and
intelligently relinquished and abandoned his rights. See id.
The trial court’s determination is the resolution of a question
of fact based on the totality of the circumstances, Schneckloth
v. Bustamonte
, 412 U.S. 218, 226 (1973); Watkins, 229
Va. at 477, 331 S.E.2d at 430, and will not be disturbed on
appeal unless plainly wrong. Jones v. Commonwealth, 228
Va. 427, 441, 323 S.E.2d 554, 561 (1984), cert. denied,
472 U.S. 1012 (1985).

Here, the record supports the trial court’s
admission into evidence of Cherrix’s statements to the police.
Lewis testified unequivocally that he read Cherrix his Miranda
rights on April 16 and April 25, and that Cherrix never asked for
counsel on either date. Cherrix testified to the contrary;
however, the trial court was in a position to evaluate the
credibility of witnesses and its decision to accept Lewis’
testimony and reject Cherrix’s testimony is amply supported by
the record. See Watkins, 229 Va. at 477, 331 S.E.2d
at 430.

B. Failure to Disclose
Exculpatory Material

Prior to trial, the trial court accepted the
Commonwealth’s assertion that all discovery requirements had been
satisfied and declined to rule on Cherrix’s motion for discovery.
At that time, the Commonwealth had a written statement from
Cherrix’s grandmother asserting that Cherrix was at home on the
night of Van Hart’s murder and that he placed a telephone call to
his wife "around 8:00 o’clock or so." The Commonwealth
had not disclosed this written statement to Cherrix.

At trial, Cherrix’s grandmother testified as an
alibi witness for him and stated that Cherrix placed a telephone
call to his wife at 8:15 on the night of the murder and that the
call went on "a long while." On cross-examination, she
testified that she had been interviewed by a police officer, but
that she could not remember what she told the officer. The
Commonwealth subsequently called the interviewing officer as a
rebuttal witness and asked him to read the statement signed by
Cherrix’s grandmother. Cherrix objected to the admission of the
statement, asserting that it contained exculpatory material which
should have been disclosed by the Commonwealth prior to trial. See
Brady v. Maryland, 373 U.S. 83 (1963). The trial court
overruled Cherrix’s objection and admitted the written statement.

On appeal, Cherrix asserts that his knowledge
of the information contained in the statement does not excuse the
Commonwealth’s failure to disclose the statement, but shows a
lack of good faith and violates the due process clause under Brady.
We disagree.

The disclosure requirement imposed by Brady
applies to material exculpatory evidence. 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. United States v. Bagley, 473
U.S. 667, 682 (1985); Robinson v. Commonwealth, 231 Va.
142, 151, 341 S.E.2d 159, 164 (1986). In calling his grandmother
as an alibi witness, Cherrix demonstrated that he and his counsel
knew about and relied upon her testimony regarding his presence
at home on the night of the murder and the telephone call he made
to his wife. The content of her written statement was, as he
admits, "reasonably known" and "consistent with
the defense case."

The written statement of the grandmother’s
testimony did not change the substance of the information known
to the defense, and the failure to disclose the fact that she had
executed a written version of her testimony did not deprive
Cherrix of material exculpatory information in violation of Brady.
See Castillo v. Johnson, 141 F.3d 218, 223 (5th
Cir.), cert. denied, ___ U.S. ___, 119 S.Ct. 28
(1998)(prosecution has no obligation to produce information
already known to defense). Accordingly, the trial court did not
err in overruling Cherrix’s objection and admitting the statement
into evidence.

V. Guilt Phase

A. Reading and Admission of
Statement

During the Commonwealth’s direct examination,
Lewis related the oral confession Cherrix made during their April
25 conversation. Lewis then testified that he briefly left the
room after Cherrix made the oral confession, with the expectation
that Cherrix would write out and sign a written confession. When
Lewis returned, however, Cherrix had not done so.

Lewis testified that he then initiated "a
question and answer session" with Cherrix, in which he asked
Cherrix several questions concerning the murder, wrote down each
question as he had asked it, and then wrote down Cherrix’s
response to each question "word for word." Lewis
testified that he then read Cherrix’s answers back to him, and
that Cherrix acknowledged the accuracy of each written response
before Lewis would proceed to the next question. When all the
questions and answers were complete, Lewis asked Cherrix to sign
the document, but Cherrix refused.

After Lewis testified about the procedure used
in the "question and answer session," he then proceeded
to read each question and answer to the jury. Cherrix objected,
taking the position that, because the "question and
answer" document was not signed, it was "nothing more
than a continuing oral statement at which time the officer may
have taken notes." Cherrix asserted that since the document
was merely Lewis’ notes of the conversation, Lewis should only be
permitted to refer to it to refresh his recollection, but not to
read directly from it.

The trial court overruled Cherrix’s objection
and permitted Lewis to read each question and answer. Cherrix
then raised an objection to the admission of the document into
evidence as an exhibit, but the trial court deferred ruling until
after Lewis finished testifying. The Commonwealth moved to admit
the document following Lewis’ direct examination, and the trial
court again deferred its ruling pending cross-examination of
Lewis by the defense. The record bears no indication that the
document was thereafter admitted as an exhibit; however, the
document was made a part of the record because Cherrix attached
it to a post-trial motion.

On appeal, Cherrix renews his argument that the
"question and answer" document is merely Lewis’ notes.
He asserts that a document must be admitted into evidence as an
exhibit if it is to be read to the jury by a witness, and that
the only exception to this rule is the hearsay exception of
"past recollection recorded." Cherrix concludes that,
because the Commonwealth did not meet the foundational
requirements for introduction of "past recollection
recorded" material, the trial court erred by permitting
Lewis to read from the "question and answer" document.
We disagree.

Contrary to Cherrix’s assertion that the
"question and answer" document represented Lewis’
notes, the trial court found that the document represented
Cherrix’s own statements:

[I]n all of the other statements that
have come in in this case, they have been statements that
were oral and that were testified to by the witness
primarily from memory with him from time to time
referring to notes to refresh his recollection, but in
this case it is a very different set of circumstances.
The witness has stated that he specifically referred
– that he specifically wrote out a question.
Specifically asked a question. Specifically wrote down
word for word
the answer and reviewed it with the
defendant. . . .

(Emphasis added.) As characterized by the trial
court, then, the "question and answer" document was
elevated to the status of a written confession.

There can be no question but that a written
confession is admissible into evidence. Confessions, whether oral
or written, are admissible against a criminal defendant under the
"party admission exception" to the hearsay rule. Quintana
v. Commonwealth
, 224 Va. 127, 148, 295 S.E.2d 643, 654
(1982), cert. denied, 460 U.S. 1029 (1983); Land
v. Commonwealth
, 211 Va. 223, 229, 176 S.E.2d 586, 590-91
(1970). This is true even if the written confession is unsigned,
as long as the defendant understood and adopted its substance. Wong
Sun v. United States
, 371 U.S. 471, 491 (1963)("The fact
that the statement was unsigned, whatever bearing this may have
upon its weight and credibility, does not render it
inadmissible"). Because the "question and answer"
document was admissible as a confession, the failure of the
Commonwealth to lay a foundation for its admission under the
"past recollection recorded" exception is irrelevant.

Although the "question and answer"
document could have been admitted into evidence as an exhibit and
would have been the best evidence of Cherrix’s confession, see
McDaniel v. Commonwealth, 183 Va. 481, 32 S.E.2d 667
(1945), Cherrix objected to its admission as an exhibit at trial.
Therefore, he cannot now argue that the trial court erred in
allowing the confession to be admitted in secondary form –
through Lewis’ reading it into evidence. For these reasons, there
was no error in the trial court’s decision to permit Lewis to
read from the "question and answer" document during his
testimony.

B. Motion to Set Aside the
Verdict

Cherrix argues that the trial court erred in
denying his motion to set aside the verdict as contrary to the
law and evidence because the Commonwealth failed to prove the corpus
delicti beyond a reasonable doubt. We disagree.

In every criminal prosecution, the Commonwealth
must prove the element of corpus delicti, that is,
the fact that the crime charged has been actually perpetrated. Maughs
v. City of Charlottesville
, 181 Va. 117, 120, 23 S.E.2d 784,
786 (1943). Further, if the accused has fully confessed that he
committed the crime, then only slight corroboration of the
confession is required to establish corpus delicti
beyond a reasonable doubt. Jackson v. Commonwealth, 255
Va. 625, 646, 499 S.E.2d 538, 551 (1998).

Cherrix was charged with capital murder,
forcible sodomy, use of a firearm in the commission of those
offenses, and being a felon in possession of a firearm. Cherrix
fully confessed to having committed these crimes, and the record
reveals that the Commonwealth produced considerably more than
slight evidence to corroborate Cherrix’s confession.

As discussed above, Van Hart’s dead body was
found with two .22 caliber gunshot wounds to the head. The
autopsy revealed recent penetration of the anus and signs of
blunt force trauma to the head shortly before death. This
evidence sufficiently corroborates Cherrix’s statements that he
sodomized Van Hart and shot her to death.

Furthermore, Christopher Fox, an acquaintance
of Cherrix, identified the .22 caliber rifle found by the police,
at the exact location indicated by Cherrix, as the rifle Fox had
sold to Cherrix. Cherrix’s former wife also identified the rifle
as one Cherrix once owned. The Commonwealth also established that
Cherrix was a convicted felon at the time of the offense. This
evidence sufficiently corroborates the commission of the firearm
offenses. Accordingly, the trial court did not err in denying
Cherrix’s motion to set aside the verdict.

C. Jury Instructions

At the conclusion of the guilt stage of the
trial, Cherrix proffered the following jury instruction:

If you believe that Brian Lee Cherrix
did not freely and voluntarily give a statement to law
enforcement officers concerning his alleged involvement
in the sodomy and murder of Tessa Van Hart, then you may
give any such statement as much or as little credibility
as you deem appropriate.

The credibility and weight of any
statements presented to the jury as having been made by
the defendant are submitted for your consideration along
with all the other evidence. The weight, the credibility,
the sufficiency are questions for determination by you
the jury.

The trial court granted the second paragraph of
the instruction but refused to grant the first paragraph on the
ground that there was no evidence to support a conclusion by the
jury that Cherrix’s statements to police were involuntary. The
trial court also granted a "general" instruction,
advising the jury of its role in assessing the credibility of
witnesses and the weight of evidence.

On appeal, Cherrix claims that a general
instruction on credibility was insufficient to properly inform
the jury of their role in assessing the voluntariness of
Cherrix’s confession, and that, therefore, the trial court erred
in refusing his instruction regarding the voluntariness of his
statements to police. After reviewing the record, however, we
find no error in the trial court’s denial of Cherrix’s proffered
instruction.

While it is true that the trial court’s
pre-trial determination that a defendant’s statements are
admissible in evidence does not preclude the defendant from
proving at trial that those statements were made involuntarily, see
Jackson v. Commonwealth, 193 Va. 664, 674, 70 S.E.2d 322,
328 (1952)("Admissibility of confession is for trial court
but its weight and value are for the jury."), it is also
well established that a defendant is not entitled to a jury
instruction unless it is supported by more than a scintilla of
evidence. Commonwealth v. Donkor, 256 Va. 443, 445, 507
S.E.2d 75, 76 (1998).

Cherrix testified at a pre-trial suppression
hearing that the police had violated his Miranda rights; however,
he elected not to testify at trial, and the evidence presented to
the jury was undisputed that Cherrix’s statements to police were
preceded by voluntary and intelligent waivers of those rights.
Furthermore, the trial court not only gave a "general"
instruction on the jury’s role in assessing credibility, but also
granted the instruction contained in the second paragraph above,
which specifically relates to the weight and credibility of
statements "having been made by the defendant."
Accordingly, we conclude that the jury was adequately apprised of
its role, and that the trial court properly refused Cherrix’s
proffered instruction.

VI. Sentencing Phase

A. Mental Health Expert

Cherrix argues that the trial court erred in
denying him an adequate and competent mental health expert, as
required by Code Sect. 19.2-264.3:1. That statute provides,
in relevant part:

The mental health expert appointed
pursuant to this section shall be (i) a psychiatrist,
. . . who has successfully completed forensic
evaluation training as approved by the Commissioner of
Mental Health, Mental Retardation and Substance Abuse
Services and (ii) qualified by specialized training and
experience to perform forensic evaluations. The defendant
shall not be entitled to a mental health expert of the
defendant’s own choosing . . . .

Code Sect. 19.2-264.3:1(A). Cherrix claims
that Dr. John Bulette, the expert appointed by the trial court,
did not possess the qualifications required by the statute.
Because the record shows that Dr. Bulette was qualified under the
statute, however, we find no error in the trial court’s
appointment.
[3]

Cherrix filed a motion, pursuant to the
statute, requesting the appointment of a defense expert to assist
him in the capital sentencing phase of the trial. At a subsequent
hearing, Cherrix informed the trial court that he had inquired
into available experts, that he had "selected" Dr.
Leigh Hagan of Chesterfield County, and that he wanted the trial
court to appoint Dr. Hagan.

The trial court subsequently informed counsel
by telephone that it had decided not to appoint Dr. Hagan because
of the distance between Chesterfield County and Accomack County,
and that it would instead appoint a local psychiatrist, Dr. John
Bulette. Without any objection, the trial court then entered an
order appointing Dr. Bulette.

Two days later, Cherrix filed a motion to
reconsider the matter and to appoint Dr. Hagan rather than Dr.
Bulette, which motion the trial court denied. At the hearing on
that motion, Cherrix conceded that Dr. Bulette was a psychiatrist
who had successfully completed his forensic evaluation training.
He contended, however, as he does now on appeal, that because Dr.
Bulette had never before been involved in a capital murder case,
he was not "qualified by specialized training and experience
to perform forensic evaluations," as required by the
statute.

Contrary to Cherrix’s interpretation of Code
Sect. 19.2-264.3:1(A)(ii), however, the statute does not
require experience in capital murder cases as a qualification for
an appointed expert. The relevant part of that statute simply
requires specialized training and experience to perform forensic
evaluations. The trial court was familiar with Dr. Bulette’s
background and specifically found that Dr. Bulette had
"substantial experience" in such evaluations. Cherrix
does not argue that Dr. Bulette lacked the training and
experience expressly required by the statute, and we decline his
invitation to graft onto the statute the additional requirement
of experience in capital murder cases. Accordingly, we find no
error in the trial court’s appointment of Dr. Bulette.

B. Corrections Expert and
Witnesses

Cherrix sought to present evidence regarding
prison life and its effect on his "future
dangerousness" through the testimony of an expert
penologist, several Virginia corrections officials, a
criminologist, a sociologist, and an individual serving a life
sentence in the custody of the Virginia Department of
Corrections. The trial court initially granted Cherrix’s motion
for the appointment of an expert penologist pending submission of
a report and cost estimate. The Commonwealth objected to the
issuance of a subpoena for the inmate and moved to quash the
subpoenas issued for the corrections officials, criminologist,
and sociologist.

Following a hearing at which Cherrix proffered
the testimony of these witnesses, the trial court determined that
Cherrix’s evidence was immaterial as mitigation evidence and
therefore refused to compel the witnesses’ attendance through
subpoenas. The trial court vacated its prior order granting
Cherrix’s motion for appointment of an expert on the basis that
the report was not timely filed, the cost estimate was high, and
the proffered testimony of the expert, like the proffered
testimony of the other witnesses sought, was immaterial.

Cherrix argues that the trial court erred
because Code Sect. 19.2-264.4 allows presentation of
mitigating evidence. He contends that exclusion of his proffered
"mitigation evidence" was an abuse of discretion and
violated his federal constitutional rights as established in Skipper
v. South Carolina
, 476 U.S. 1 (1986), and Eddings v.
Oklahoma
, 455 U.S. 104 (1982). We disagree.

Although the United States Constitution
guarantees the defendant in a capital case a right to present
mitigating evidence to the sentencing authority, it does not
limit "the traditional authority of a court to exclude, as
irrelevant, evidence not bearing on the defendant’s character,
prior record, or the circumstances of his offense." Lockett
v. Ohio
, 438 U.S. 586, 605 n.12 (1978). Code
Sect. 19.2-264.4(B) vests the trial court with the
discretion to determine, subject to the rules of evidence
governing admissibility, the evidence which may be adduced in
mitigation of the offense. Coppola v. Commonwealth, 220
Va. 243, 253, 257 S.E.2d 797, 804 (1979), cert. denied,
444 U.S. 1103 (1980).

The record shows that the evidence Cherrix
sought to introduce involved the general nature of prison life.
The inmate’s proffered testimony sought to establish, based on
the inmate’s personal prison experience, what prison life would
be like for Cherrix if he received a life sentence. The officials
from the Department of Corrections would have testified regarding
the ability of the penal system to contain Cherrix and the cost
to the taxpayers of an inmate’s life sentence. Cherrix’s counsel
stated that the testimony of the expert penologist, the
sociologist, and the criminologist would be similar to that of
the inmate and corrections officials. As the trial court
observed, none of this evidence concerns the history or
experience of the defendant.
[4] We agree with the conclusion of the
trial court that "what a person may expect in the penal
system" is not relevant mitigation evidence. Accordingly, we
will affirm the judgment of the trial court excluding this
evidence.

C. Post Trial-Offense
Convictions

Cherrix filed a pre-trial motion to exclude
from the sentencing phase of the trial evidence of crimes he
committed after he committed the capital offense in January of
1994. The trial court declined to rule on the motion because it
was premature. During the sentencing phase, the Commonwealth
offered as evidence two convictions that Cherrix received after
January 1994. We have already stated on two prior occasions that
evidence of "prior history" to establish future
dangerousness under Code Sect. 19.2-264.4(C) encompasses the
time after which the subject offense was committed, Joseph v.
Commonwealth
, 249 Va. 78, 88-89, 452 S.E.2d 862, 869, cert.
denied, 516 U.S. 876 (1995), and includes a defendant’s
most recent history, Saunders v. Commonwealth, 242 Va.
107, 117, 406 S.E.2d 39, 45, cert. denied, 502 U.S.
944 (1991). Accordingly, the trial court’s admission of this
evidence was proper.

D. Failure to Properly Advise
Jury on Parole Eligibility

Cherrix contends that the trial court erred in
failing to properly advise the jury of his eligibility, or lack
thereof, for parole. He claims that, because "future
dangerousness" was relevant to his sentencing, the trial
court erred in failing to inform the jury that Cherrix
"would effectively never be paroled." The record
reveals, however, that Cherrix has waived this argument for
failure to object in the trial court. Rule 5:25.

At the sentencing phase of the trial, Cherrix
did not offer a parole eligibility instruction. The issue of
parole eligibility did not arise until the jury foreman inquired
of the trial court, during deliberations, whether a life sentence
would include the possibility of parole. The trial court then
suggested to counsel that it should "instruct the jury that
they are to have no concern with parole." When the trial
court then asked Cherrix for his position on the matter, Cherrix
responded, "I would suggest that the court instruct the jury
as you have indicated. [The jury] should not be concerned with
parole . . . ." The trial court subsequently
instructed the jury that it "must decide whether to impose a
life sentence or the death penalty based upon the evidence and
the instructions that you have received and you are to give no
consideration to the issue of parole." Cherrix’s failure to
proffer a parole eligibility instruction and his failure to
object to the trial court’s instruction in response to the jury’s
inquiry mentioned above precludes us from addressing the merits
of this assignment of error.

E. Aggravating Factors

A penalty of death may be imposed only if the
Commonwealth proves, beyond a reasonable doubt, that the
defendant would commit criminal acts of violence that would be a
continuing serious threat to society or that his conduct in
committing the offense was outrageously or wantonly vile,
horrible or inhuman in that it involved torture, depravity of
mind, or aggravated battery. Code Sect. 19.2-264.4(C). In
this case, the Commonwealth sought the death penalty based on
both of the aggravating factors, future dangerousness and
vileness. The jury returned a sentencing verdict making the
required findings under both factors. Cherrix contends that the
death penalty should not have been imposed because it was
"unreasonable" for the jury to conclude that Cherrix
would be a continuing serious threat to society, and because the
Commonwealth failed to prove that his actions in committing the
crime were outrageously or wantonly vile, horrible, or inhuman as
that term is defined by the statute. We disagree.

1. Future Dangerousness

Cherrix argues that because the jury was fully
informed of Cherrix’s sentences for other crimes, it "could
reasonably expect" that Cherrix had "at best" a
"remote" chance of ever being released. Thus, asserts
Cherrix, any danger Cherrix might pose would be to the society
within the prison, and a "five-foot-four inch, small framed,
light weight man does not represent a danger to fellow inmates or
guards."

Not only is this argument based primarily on
speculation, it ignores the substantial evidence in the record of
Cherrix’s continuing assaultive behavior for which he expressed
little remorse. Cherrix had a lengthy record of criminal
convictions including assault and battery, malicious wounding,
and use of a firearm. Furthermore, after the murder of Van Hart,
Cherrix shot his half-brother and, according to his own mental
health expert, had no remorse for the shooting. Cherrix had a
similar lack of remorse after he broke his mother-in-law’s arm
with a pool cue. Cherrix told his mental health expert that he
"would say anything to obtain his goals." His expert
testified that Cherrix had an anti-social personality, was
"angry with women," and acted out this anger by
assaulting them. Finally, there is nothing in the record
regarding Cherrix’s ability to conform to prison life and work
productively in that environment.

Our review of the record fully supports the
jury’s determination that Cherrix would constitute a continuing
serious danger to society.

2. Vileness

The jury verdict found Cherrix’s conduct in
committing the crime "outrageously or wantonly vile,
horrible or inhuman in that it involved torture or depravity of
mind . . . ." Cherrix argues that the record
fails to support this finding because there was no showing of
depravity of mind beyond that inherent in ordinary legal malice
and premeditation, and because there was no torture in that Van
Hart died almost instantaneously. Again we disagree.

The events surrounding the murder show that
Cherrix carefully planned his crime and lured his victim to a
remote area. According to the defendant’s recitation of events,
after forcing her at gun point to partially disrobe and lie on
the ground, he forcibly sodomized her while holding a rifle to
the back of her head. Even though she "begged [him] not to
kill her" and promised that she would "act like this
never happened," he stood over her and shot her in the head
for fear that "she was going to tell on [him]." Not
sure that the first shot killed her, he "shot her again to
make sure."

After the murder, Cherrix drove around with the
victim’s body in the car, considered going to a restaurant for a
beer, and ultimately abandoned the car and victim at a deserted
site and tossed the murder weapon in a creek. He then went home
and called his wife at the hospital "like nothing ever
happened." Cherrix visited the funeral home to view his
victim’s body and told the police that she looked
"beautiful."

This evidence supports the jury’s determination
that Cherrix’s conduct in committing the sodomy and murder
constituted torture of Van Hart or reflected depravity of mind.

VII. Statutory Review

Code Sect. 17.1-313(C) requires this Court
to consider whether the sentence of death was imposed "under
the influence of passion, prejudice or any other arbitrary
factor," and whether such sentence is excessive or
disproportionate to penalties imposed in similar cases,
"considering both the crime and the defendant." As to
our first consideration, Cherrix asserts that the death penalty
was imposed under the influence of passion, prejudice, or some
other arbitrary factor because the jury improperly found the
aggravating factors of future dangerousness and vileness.
However, we have already determined that these jury findings were
supported by the record. Our review of the record reveals no
support for the proposition that the jury imposed the death
sentence as a result of passion, prejudice, or any other
arbitrary factor.

In considering whether the sentence imposed in
this case is excessive or disproportionate to other sentences
imposed for similar crimes, we compare the record in this case
with records in other capital murder cases, including those in
which life sentences have been imposed. Since the jury based its
death sentence on both the future dangerousness and vileness
predicates, we give particular consideration to other capital
murder cases in which the death penalty was sought based on both
predicates.

When considering the penalty for convictions of
capital murder based on premeditated murder and rape/forcible
sodomy, juries in this Commonwealth have generally, although not
without exception, imposed the death sentence. Barnabei v.
Commonwealth
, 252 Va. 161, 477 S.E.2d 270 (1996), cert.
denied, 520 U.S. 1224 (1997); Clozza v. Commonwealth,
228 Va. 124, 321 S.E.2d 273 (1984), cert. denied,
469 U.S. 1230 (1985); Coleman v. Commonwealth, 226 Va. 31,
307 S.E.2d 864 (1983), cert. denied, 465 U.S. 1109
(1984); Waye v. Commonwealth, 219 Va. 683, 251 S.E.2d 202,
cert. denied, 442 U.S. 924 (1979). The death
sentence has been imposed in cases where the victim, like the
victim in this case, was killed solely to assure her silence. Hedrick
v. Commonwealth
, 257 Va. ___, ___ S.E.2d ___ (this day
decided); Justus v. Commonwealth, 220 Va. 971, 266 S.E.2d
87 (1980), cert. denied, 455 U.S. 983 (1982); Smith
v. Commonwealth
, 219 Va. 455, 248 S.E.2d 135 (1978), cert.
denied, 441 U.S. 967 (1979). Based on this review, we
conclude that Cherrix’s death sentence is neither excessive nor
disproportionate to penalties imposed by other sentencing bodies
in the Commonwealth for similar and comparable crimes.

VIII. Conclusion

We find no reversible error in the issues
presented in this case. After reviewing Cherrix’s death sentence
pursuant to Code Sect. 17-110.1, we decline to commute the
sentence of death. Therefore, we will affirm the judgment of the
trial court.

Record No. 981798 —Affirmed.

Record No. 982063 —Affirmed.

 

FOOTNOTES:

[1] The trial court actually granted Cherrix’s request for
individually sequestered voir dire, but limited its inquiry to
the issues of "publicity and whether a juror would consider
the death penalty."

[2] Although Cherrix does not explicitly
argue that the admission of his confession violated his Sixth
Amendment right to counsel, he does make repeated references to
the fact that counsel had been appointed to him on unrelated
charges prior to his being interrogated on April 25. However, as
the Commonwealth points out, the Sixth Amendment right to counsel
is charge-specific and does not "travel with a defendant and
attach [itself] to any other crimes . . . ." Eaton v.
Commonwealth
, 240 Va. 236, 252, 397 S.E.2d 385, 394 (1990), cert.
denied, 502 U.S. 824 (1991).

[3] On appeal, Cherrix implies that the
trial court’s action denied him rights under the United States
Constitution. See Ake v. Oklahoma, 470 U.S. 68
(1985). To the extent that he attempts to make this argument,
however, it is defaulted because he did not object to Dr.
Bulette’s appointment on any constitutional basis at trial. Rule
5:25. Therefore, we address only his statutory argument.

[4] Contrary to Cherrix’s assertion, none
of the evidence proffered at trial addressed Cherrix’s ability to
conform or his experience in conforming to prison life, as the
defendant’s evidence did in Skipper, 476 U.S. at 4.

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