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HEDRICK v. COMMONWEALTH OF VA


HEDRICK

v.

COMMONWEALTH OF VA


February 26, 1999
Record Nos. 982055 & 982056

BRANDON WAYNE HEDRICK

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF APPOMATTOX COUNTY
Richard S. Blanton, Judge
Present: All the Justices
OPINION BY JUSTICE LEROY R. HASSELL, SR.


In these appeals, we review the capital murder
conviction, sentence of death, and related convictions imposed
upon Brandon Wayne Hedrick.

I. PROCEEDINGS

The defendant was tried before a jury on
indictments for the following offenses: capital murder of Lisa
Yvonne Alexander Crider in the commission of robbery, forcible
sodomy, and rape in violation of Code Sect. 18.2-31(4) and
(5); robbery in violation of Code Sect. 18.2-58; rape in
violation of Code Sect. 18.2-61; forcible sodomy in
violation of Code Sect. 18.2-67.1; abduction in violation of
Code Sect. 18.2-47; and use of a firearm in the commission
of murder in violation of Code Sect. 18.2-53.1. The jury
found the defendant guilty of these crimes and fixed his
punishment at life imprisonment on the charge of forcible sodomy,
life imprisonment on the charge of rape, life imprisonment on the
charge of robbery, ten years imprisonment on the charge of
abduction, and three years imprisonment on the charge of use of a
firearm in the commission of a felony.

In the penalty phase of the capital murder
trial, the jury fixed the defendant’s punishment at death,
finding that he represented a continuing serious threat to
society and that his offense was outrageously or wantonly vile,
horrible, or inhuman in that it involved torture, depravity of
mind, or aggravated battery to the victim. After considering a
report prepared by a probation officer pursuant to Code
Sect. 19.2-264.5, the trial court sentenced the defendant in
accord with the jury verdicts.

We consolidated the automatic review of the
defendant’s death sentence with his appeal of the capital murder
conviction. Code Sect. 17.1-313(F). The defendant’s appeal
of his non-capital convictions was certified from the Court of
Appeals, Code Sect. 17.1-409, and was consolidated with his
capital murder appeal and given priority on our docket.

II. THE EVIDENCE

On May 10, 1997, William K. Dodson, Trevor
Jones, and the defendant were together at Jones’ apartment in
Lynchburg. The defendant and Jones decided to leave the apartment
and drive to an area in downtown Lynchburg where they could find
some prostitutes. Dodson remained at the apartment.

Jones drove his truck to an area near Fifth and
Madison Streets in Lynchburg where the defendant and Jones met
two prostitutes. The defendant and Jones gave the prostitutes
money, asked them to purchase a small quantity of crack cocaine,
and returned to Jones’ apartment with the women. The defendant
and Jones smoked the crack cocaine that they purchased, and the
women smoked their own cocaine. Jones, the defendant, and Dodson
had sexual relations with the prostitutes. The defendant and
Jones, along with the women, returned to the area near Fifth and
Madison Streets. The defendant and Jones gave the women $50 and
asked them to purchase some more crack cocaine. The women took
the money but never returned.

The defendant and Jones then rode around in
Jones’ truck for about 45 minutes. They met two different
prostitutes and returned with them to Jones’ apartment. The
defendant and Jones drank bourbon, smoked marijuana, and had
sexual relations with the women. Dodson, who was still at Jones’
apartment, was asleep when these women were present.

Around 11:00 p.m., the defendant and Jones,
along with the prostitutes, left the apartment and returned to
the area near Fifth and Madison Streets. After the women left
Jones’ truck, Jones observed Crider "walking down the
road." Jones, who had met Crider previously, told the
defendant that Crider’s boyfriend was a seller of crack cocaine.
The defendant and Jones decided to "pick up" Crider,
have sexual relations with her, and rob her because they thought
she may have crack cocaine in her possession.

Jones approached Crider and "asked if she
wanted to have sex." Crider got into Jones’ truck, and the
defendant, Jones, and Crider went to Jones’ apartment. Once they
arrived at the apartment, Jones paid Crider $50 and had sexual
intercourse with her. The defendant did not have sexual relations
with Crider at the apartment.

After Jones had sexual intercourse with Crider,
he left his bedroom while Crider was "getting dressed."
Jones went to a living room and spoke with the defendant. The
defendant and Jones devised a plan in which the defendant would
pretend to rob both Jones and Crider. Jones did not want Crider
to know that he was involved in the robbery because Crider knew
where Jones lived, and Jones was afraid that Crider’s boyfriend
would retaliate against him.

Jones told the defendant to leave the
apartment, go to Jones’ truck, and get Jones’ shotgun. While the
defendant was retrieving the shotgun, Jones told Crider that he
had lost his keys, and she began to help him look for the
supposedly lost keys. Jones went into the kitchen, got some duct
tape, returned to the bedroom, and placed the tape there. Jones
also got a set of handcuffs. When the defendant entered the house
with the shotgun, Jones and Crider were in the kitchen. The
defendant "racked" the pump on the shotgun to "get
[Crider's] attention," and the defendant "motioned
for" Crider and Jones and told them to go into Jones’
bedroom.

The defendant ordered Jones to empty Crider’s
pockets, and Jones took the $50 bill that he had paid Crider,
cigarettes, and a cigarette lighter. The defendant told Jones to
place the handcuffs on Crider. Jones did so. Jones also covered
Crider’s eyes and mouth with duct tape, and he placed a shirt
over her face. The defendant took Crider out of the apartment and
placed her in Jones’ truck.

Dodson, who had been asleep in the living room,
woke up when he heard the sound caused when the defendant
"racked" the pump on the shotgun. In response to
Dodson’s question, "what . . . is going on?",
Jones responded that, "this is one of the girls that ripped
us off; we’re just going to scare her."

The defendant, Jones, and Crider left the
apartment about 1:00 a.m. Jones sat in the driver’s seat. The
defendant and Crider were in the backseat of the truck. The
defendant removed the shirt and duct tape from Crider. After
riding around in the truck for some time, the defendant decided
that he wanted to have sexual intercourse with Crider. The
defendant told Crider that he "wanted some ass." The
defendant warned her, "don’t try anything; I got a
twenty-five," referring to a .25-caliber pistol. Jones
stopped the truck and got out. The defendant raped Crider.

After the defendant raped Crider, he got out of
the truck and spoke with Jones. The defendant told Jones that the
defendant did not want to return Crider to the downtown area of
Lynchburg because he was "afraid something might
happen." The defendant, because he had just raped Crider,
was afraid that "she might come back on him with her
boyfriend." The defendant and Jones had a brief
conversation, "about killing" Crider, and decided to do
so.

The defendant and Jones got back into the
truck. Crider was crying. She was "upset" and
"scared." Jones drove the truck as he and the defendant
tried to find a good location to kill Crider. As the defendant
and Jones continued to look for a place to kill Crider, Jones
drove the truck into Appomattox County. Crider, who "kind of
figured" that the defendant and Jones intended to harm her,
pled, "don’t kill me; I got two kids." She was
"sniffling and crying."

Crider, continuing to plead for her life,
asked: "[I]s there anything I can do to make ya’ll not do
this?" The defendant responded, "if you suck my dick,
I’ll think about it." Crider then performed oral sodomy on
the defendant.

Jones continued to drive the truck, and he
proceeded on a road in Appomattox County and drove onto a
"pull-off" space on a "back road" near the
James River. The defendant got out of the passenger side of the
truck with the shotgun, and Jones took Crider out of the truck.
Jones removed the handcuffs from Crider because he was afraid
that his fingerprints were on them. The defendant and Jones put
gloves on their hands to avoid leaving their fingerprints at the
crime scene.

The time was now "daybreak." Crider,
who was crying, continued to beg the defendant and Jones not to
kill her, saying, "I got two kids." After Jones had
removed the handcuffs from Crider, he bound her hands together
with duct tape. He also placed duct tape around her mouth and
around her eyes. The defendant was standing, watching with the
shotgun in his hands.

The defendant, Jones, and Crider walked toward
the river bank. Jones led Crider because she was
"blindfolded." Jones "turned [Crider and] faced
her back to the river." Jones turned to the defendant, who
was armed with the shotgun, and said, "do what you got to
do." Jones began to walk to the truck. When Jones was within
10 feet from the truck, he heard a gunshot.

The defendant returned to the truck with the
shotgun and told Jones that Crider "went into the
river." Jones took the shell from the shotgun so that it
would not be present at the scene. The defendant and Jones
returned to Lynchburg. They disposed of the shotgun shell, duct
tape, and other evidence en route to Lynchburg. They arrived at
Jones’ apartment at about 6:30 or 7:00 a.m. on Sunday morning,
and went to sleep.

The defendant and Jones subsequently fled
Virginia, and they were arrested in Lincoln, Nebraska. The
shotgun that the defendant used to kill Crider was found in
Jones’ truck, which he had driven to Nebraska.

Sherry Kelly Mays and Warren Johns, two friends
who had gone to the James River to fish, found Crider’s body on
the evening of May 11, 1997. Crider’s body had been placed in
such a manner that the body appeared to be "sitting up with
[the] feet crossed," and the victim’s hands were bound with
duct tape.

Dr. David Oxley, a deputy chief medical
examiner for the Commonwealth of Virginia, qualified as an expert
witness on the subject of forensic pathology. He performed an
autopsy on Crider’s body. Dr. Oxley testified that an examination
of the body revealed that Crider had been shot in the face with a
shotgun. Several of her teeth were missing and other teeth were
fractured. The top portion of her head had been bound with silver
duct tape, which extended to the bridge of her nose. Duct tape
was also found around her mouth.

The shotgun wound caused massive injury to
Crider’s brain, and shot pellets and wadding were found in the
interior of her cranial cavity. The location of the shotgun wad,
deep in the victim’s cranial cavity, indicated that she was
killed within a "range of fire of less than ten feet."
The entrance wound from the shotgun blast measured an inch and a
half in greatest diameter. An x-ray of Crider’s skull showed the
presence of shotgun pellets in her skull and brain. A blood
sample was extracted from Crider’s body, and a toxicology screen
on that sample revealed an absence of any "drugs of abuse or
prescription drugs" in her blood system.

Robert L. Strubel, a forensic scientist,
qualified as an expert witness on the subject of blood stain
pattern analysis. He testified that based upon his analysis of
certain photographs, after Crider had been shot in the face her
body was moved and placed in the position where Sherry Mays found
the body.

Elizabeth Bush, a forensic scientist, qualified
as an expert witness on the subject of DNA (deoxyribonucleic
acid) and DNA testing. She conducted DNA tests which revealed
that the possibility of a person other than the defendant
providing a sperm sample found in the victim’s vagina was one out
of 260,000 in the Caucasian population, one out of 1,000,000 in
the Hispanic population, and one out of 8,000,000 in the Black
population. The defendant is Caucasian.

Richard V. Roberts qualified as an expert
witness on the subject of firearms. He examined the shotgun that
the defendant used to kill Crider, shotgun shells, and waddings.
He also examined the wadding that was removed from Crider’s
brain. Based upon his tests and examination, which included a
pattern spray of 12-gauge shotgun shells, he concluded that the
muzzle of the shotgun was three to seven feet from Crider’s mouth
when she was killed.

III. EVIDENCE ADDUCED IN PENALTY
PHASE

During the penalty phase of the capital murder
proceedings, the Commonwealth adduced the following evidence. The
defendant had been convicted of three robberies in three
different jurisdictions. The defendant was armed with a
"Rambo type" knife when he participated in robberies in
Campbell County and Bedford County. The defendant was armed with
a shotgun when he robbed a motel clerk in Farmville. During that
robbery, the defendant, wearing a hood over his head and a
bandanna around his face, pointed the shotgun at the clerk, who
was five or six feet away from him, and demanded money.

In September 1997, after the defendant had been
arrested for the murder of Crider, and while being transported
from Appomattox to the Campbell County Jail, he tried to take a
deputy sheriff’s revolver. The defendant later had to be
restrained while being transported. In July 1997, the defendant
attempted to escape from incarceration by climbing a fence.

The defendant told a State police officer that
he shot Crider and that "he was an avid hunter, he liked to
hunt . . . and how good a shot he was, how he killed
deer in the past using shotguns and rifles at long range."

IV. ASSIGNMENT OF ERROR
PROCEDURALLY DEFAULTED

The defendant argues that the trial court erred
in refusing to grant his "motion to dismiss the capital
murder charges on the grounds that the capital murder statutes
are unconstitutional." In support of his contention, the
defendant merely refers this Court to a memorandum of law that he
filed in the trial court. We hold that the defendant’s assertions
are insufficient and constitute a procedural default. "An
appellant who asserts that a trial court’s ruling was erroneous
has an obligation to state clearly to the appellate court the
grounds for that assertion. A cross-reference to arguments made
at trial is insufficient." Spencer v. Commonwealth,
240 Va. 78, 99, 393 S.E.2d 609, 622, cert. denied,
498 U.S. 908 (1990); Swisher v. Commonwealth, 256
Va. 471, 479, 506 S.E.2d 763, 767 (1998); Jenkins v. Commonwealth,
244 Va. 445, 460-61, 423 S.E.2d 360, 370 (1992), cert. denied,
507 U.S. 1036 (1993).

V. ISSUE PREVIOUSLY DECIDED

The defendant argues that the trial court erred
in refusing his motion for a jury questionnaire. We have
previously held that a trial court is not required to permit a
defendant to mail a questionnaire to the potential jurors. See
Swisher, 256 Va. at 479, 506 S.E.2d at 767; Goins
v. Commonwealth, 251 Va. 442, 454, 470 S.E.2d 114, 122, cert.
denied, 519 U.S. 887 (1996); Strickler v. Commonwealth,
241 Va. 482, 489-90, 404 S.E.2d 227, 232, cert. denied,
502 U.S. 944 (1991). We will adhere to our previous rulings, and
we will not discuss the jury questionnaire issue further.

VI. BILL OF PARTICULARS

The defendant argues that the trial court erred
in refusing his motion for a bill of particulars. We hold that
the defendant’s contention is without merit. The trial court’s
decision whether to require the Commonwealth to file a bill of
particulars is a matter which rests within the trial court’s
sound discretion. Swisher, 256 Va. at 480, 506 S.E.2d at
768; Goins, 251 Va. at 454-55, 470 S.E.2d at 122-23; Quesinberry
v. Commonwealth, 241 Va. 364, 372, 402 S.E.2d at 218, 223,
cert. denied, 502 U.S. 834 (1991). The defendant
simply does not explain how the trial court abused its discretion
by failing to grant his motion for a bill of particulars. The
defendant’s conclusional argument fails to identify any error by
the trial court.

VII. ADMISSIBILITY OF EVIDENCE

At trial, the Commonwealth was permitted, over
the defendant’s objection, to introduce in evidence an enlarged
photograph of the victim’s face. The photograph, which was
approximately two feet by three feet in size, revealed the
injuries that the victim suffered when the defendant shot her in
the face with the shotgun. The defendant argues that the trial
court erred by admitting this photograph in evidence because it
was duplicative of another photograph of the victim’s face which
had not been enlarged, and the photograph was inflammatory and
gruesome.

We disagree with the defendant’s contentions.
We have held that the admission of photographs in evidence rests
within the sound discretion of the trial court. Walton v. Commonwealth,
256 Va. 85, 91, 501 S.E.2d 134, 138 (1998); Goins, 251 Va.
at 459, 470 S.E.2d at 126. Photographs of a victim are admissible
to show intent, method, malice, motive, premeditation, and the
atrociousness of the crime. Walton, 256 Va. at 92, 501
S.E.2d at 138. Photographs which accurately depict the crime
scene are not rendered inadmissible simply because they are
gruesome or shocking. Id.; Goins, 251 Va. at 459,
470 S.E.2d at 126; Gray v. Commonwealth, 233 Va.
313, 343, 356 S.E.2d 157, 173, cert. denied, 484
U.S. 873 (1987). We have examined the photograph, and we hold
that the trial court did not abuse its discretion.

VIII. AGGRAVATED BATTERY

Code Sect. 19.2-264.2 states:

"In assessing the penalty of any
person convicted of an offense for which the death
penalty may be imposed, a sentence of death shall not be
imposed unless the court or jury shall (1) after
consideration of the past criminal record of convictions
of the defendant, find that there is a probability that
the defendant would commit criminal acts of violence that
would constitute a continuing serious threat to society
or that his conduct in committing the offense for which
he stands charged was outrageously or wantonly vile,
horrible or inhuman in that it involved torture,
depravity of mind or an aggravated battery to the victim;
and (2) recommend that the penalty of death be
imposed."

The jury, in accordance with this statute,
sentenced the defendant to death finding that there is a
probability that the defendant would commit criminal acts of
violence that would constitute a continuing serious threat to
society and that the defendant’s conduct was wantonly vile,
horrible, or inhuman.

During the penalty phase of the capital murder
proceeding, the defendant proffered the following jury
instruction which the trial court refused: "A single gunshot
wound causing immediate death does not constitute an aggravated
battery of the victim." The defendant contends that he did
not commit an aggravated battery upon Crider and, citing Godfrey
v. Georgia, 446 U.S. 420 (1980), asserts that "an
aggravated battery is not proven where the evidence shows that
the victim died almost instantaneously from a single gunshot
wound." The defendant’s argument is without merit.

We have stated that "[w]ithin the context
of [Code Sect. 19.2-264.2], the term ‘aggravated battery’
means ‘a battery which, qualitatively and quantitatively, is more
culpable than the minimum necessary to accomplish an act of
murder.’" Sheppard v. Commonwealth, 250 Va.
379, 392, 464 S.E.2d 131, 139 (1995), cert. denied,
517 U.S. 1110 (1996) (quoting Smith v. Commonwealth,
219 Va. 455, 478, 248 S.E.2d 135, 149 (1978), cert. denied,
441 U.S. 967 (1979)).

Here, there was more than sufficient evidence
which would have permitted the jury to find, beyond a reasonable
doubt, that the defendant committed an aggravated battery upon
Crider. Before the defendant murdered Crider, he had robbed and
raped her, forced her to perform an act of oral sodomy upon him,
bound her hands with duct tape, covered her eyes and mouth with
duct tape, and held her in captivity for five hours. He
subsequently removed the duct tape from her hands and restrained
her with handcuffs. The defendant, an avid hunter who considered
himself skilled with firearms, shot the victim in the face with
the shotgun, as she stood helplessly awaiting her execution at a
distance of three to seven feet from the barrel of the shotgun.
Without question, under the facts and circumstances of this case,
the manner in which the defendant terrorized and killed Crider
was qualitatively and quantitatively more culpable than the
minimum necessary to accomplish an act of murder.

The United States Supreme Court’s decision in Godfrey
v. Georgia, supra, is not controlling here and is
factually distinguishable. In Godfrey, a defendant, who
had been convicted of capital murder, killed two people by
shooting each victim once with a rifle. There was no other
evidence of physical injury. The Supreme Court, which reversed
judgment confirming the sentence of death, stated that

"[n]o claim was made, and nothing
in the record before us suggests, that the petitioner
committed an aggravated battery upon [the victims], or,
in fact, caused either of them to suffer any physical
injury preceding their deaths. Moreover, in the trial
court, the prosecutor repeatedly told the jury — and
the trial judge wrote in his sentencing report —
that the murders did not involve ‘torture.’" 446
U.S. at 432.

Unlike the defendant in Godfrey, Hedrick
committed an aggravated battery upon Crider and caused her to
suffer physical injury and torture preceding her death.

Moreover, we have held that "a mere
inspection of the statutory language in [Code
Sect. 19.2-264.2] demonstrates clearly that the term
‘vileness’ includes three separate and distinct factors, with the
proof of any one factor being sufficient to support a finding of
vileness and hence a sentence of death." Bunch v. Commonwealth,
225 Va. 423, 442, 304 S.E.2d 271, 282, cert. denied,
464 U.S. 977 (1983). We have also stated that: "Code
Sects. 19.2-264.2 and -264.4(C) define vileness as conduct
that involves torture, depravity of mind, or aggravated
battery to the victim; the use of the disjunctive word ‘or,’
rather than the conjunctive ‘and,’ signifies the availability of
alternative choices." Id. Here, the evidence was
overwhelming that the defendant’s conduct showed a depravity of
mind and torture, which the defendant does not challenge on
appeal.

Furthermore, we also observe that the jury
found beyond a reasonable doubt that there was a probability,
based upon the evidence of the prior history of the defendant or
of the circumstances surrounding the commission of the offense of
which the defendant was accused, that he would commit criminal
acts of violence that would constitute a continuing, serious
threat to society. The defendant does not challenge this finding,
which is a separate and independent basis for the imposition of
the death penalty in this case.

IX. SUFFICIENCY OF THE EVIDENCE

The defendant argues that the trial court erred
"in refusing to set aside the verdicts of the jury finding
[him] guilty of robbery, rape and forcible sodomy as contrary to
the law and the evidence." The defendant, in another
assignment of error, argues that the trial court erred in
refusing to set aside the verdicts of the jury finding the
defendant guilty of capital murder in the commission of robbery,
capital murder in the commission of rape, and capital murder in
the commission of forcible sodomy. The defendant’s contentions
are without merit.

The standard of review for determining the
sufficiency of evidence on appeal is well established. We must
examine the evidence in the light most favorable to the
Commonwealth, the prevailing party at trial, and we will not
disturb the trial court’s judgment unless it is plainly wrong or
without evidence to support it. Goins, 251 Va. at 466, 470
S.E.2d at 130; Beavers v. Commonwealth, 245 Va.
268, 281-82, 427 S.E.2d 411, 421, cert. denied, 510
U.S. 859 (1993); Code Sect. 8.01-680. Here, the evidence of
record established, beyond a reasonable doubt, that the defendant
robbed Crider, raped her, and forced her to commit an act of oral
sodomy. The defendant and Jones decided before they asked Crider
to get into Jones’ truck that they would rob her of crack
cocaine. The defendant admitted to deputy sheriffs that he
ordered Jones and Crider to a bedroom where he demanded that she
empty her pockets. At trial, the defendant admitted that he
brought the shotgun into the apartment as part of the plan to rob
the victim.

As we have already stated, Jones testified that
the defendant told the victim he "wanted some ass," and
the defendant told Crider, before raping her, "don’t try
anything; I got a twenty-five [caliber pistol]." Jones also
testified that when the victim begged the defendant and Jones not
to kill her, the defendant told her that he would consider
sparing her life if she performed oral sodomy upon him. Thus, we
hold that the jury’s findings are fully supported by the
evidence.

X. COMMUTATION

The defendant argues that the trial court erred
in failing to commute the death sentence to a sentence of life
imprisonment. We disagree.

Code Sect. 19.2-264.5 states in relevant
part:

"When the punishment of any person
has been fixed at death, the court shall, before imposing
sentence, direct a probation officer of the court to
thoroughly investigate the history of the defendant and
any and all other relevant facts, to the end that the
court may be fully advised as to whether the sentence of
death is appropriate and just. Reports shall be made,
presented and filed . . . [and] such reports
shall in all cases contain a Victim Impact
Statement. . . . After consideration of
the report, and upon good cause shown, the court may set
aside the sentence of death and impose a sentence of
imprisonment for life."

Our review of the record reveals that the trial
court gave thorough consideration to the evidence and properly
discharged its statutory duties imposed by Code
Sect. 19.2-264.5. And, the defendant simply failed to show
good cause why the sentence of death should not be imposed.

XI. PASSION AND PREJUDICE

Code Sect. 17.1-313(C)(1) requires that we
determine "[w]hether the sentence of death was imposed under
the influence of passion, prejudice or any other arbitrary
factor." The defendant argues that "the fact that the
jury . . . imposed the maximum possible sentence in all
of the predicate cases, when each of the predicate offenses was,
standing alone, clearly not a maximum penalty offense, indicates
that the jury gave no consideration whatever to the actual
offenses involved, but blindly followed the request and
recommendation of the Attorney for the Commonwealth. It seems
clear that the rape in this case, and the sodomy, involving a
victim whose profession was prostitution, and who was in no way
physically injured in the offense, do not rationally support life
sentences for each offense." Continuing, the defendant says
that his robbery of the victim was "so little supported by
the evidence that, absent the murder later, it would not have
resulted in any conviction whatever."

We find no merit in the defendant’s assertions.
The defendant’s argument that the victim was not physically
injured ignores the undisputed fact that he killed her with a
shotgun blast to her face at close range while she was bound and
gagged with duct tape. Additionally, the defendant abducted the
victim for over five hours, and the victim was forced "to
experience the horror of waiting for [her] execution." Briley
v. Commonwealth, 221 Va. 563, 579, 273 S.E.2d 57, 67
(1980). Our review of the record indicates that the jury and the
trial court gave thoughtful and careful consideration to all the
evidence, and we find nothing in the record before us which
suggests that the jury or the trial court imposed the sentences
of death under the influence of passion, prejudice, or other
arbitrary factors.

XII. EXCESSIVENESS AND
DISPROPORTIONALITY

Code Sect. 17.1-313(C)(2) requires this
Court to consider and determine "[w]hether the sentence of
death is excessive or disproportionate to the penalty imposed in
similar cases, considering both the crime and the
defendant."

The test of proportionality that we apply is
whether "juries in this jurisdiction generally approve the
supreme penalty for comparable or similar crimes." Murphy
v. Commonwealth, 246 Va. 136, 145, 431 S.E.2d 48, 54, cert.
denied, 510 U.S. 928 (1993); Walton, 256 Va. at 96,
501 S.E.2d at 140.

Our comparison of the record in this case with
the records in capital cases, including capital cases in which
life sentences were imposed, fails to indicate that the death
penalty imposed here is excessive or disproportionate to the
penalty imposed in similar cases, considering both the crime and
the defendant. We have examined the records of all capital cases
reviewed by this Court pursuant to Code Sect. 17.1-313(E). See
Swisher, 256 Va. at 488-89, 506 S.E.2d at 773.

XIII. CONCLUSION

Having reviewed the sentence of death and
related convictions, finding no reversible error in the record,
and perceiving no reason to commute the death sentence, we will
affirm the judgment of the trial court.

Record No. 982055 —Affirmed.

Record No. 982056 —Affirmed.

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