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JACKSON v. COMMONWEALTH OF VIRGINIA

VA Supreme Court


JACKSON v. COMMONWEALTH
OF VA


April 17, 1998
Record Nos. 971720 & 971721

CHAUNCEY JACOB JACKSON

v.

COMMONWEALTH OF VIRGINIA

OPINION BY SENIOR JUSTICE HENRY H. WHITING
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK

Lydia Calvert Taylor, Judge
Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Kinser, JJ., and Whiting, Senior Justice


In these appeals, we review a capital murder conviction, a
sentence of death (Record No. 971720), and five other related
felony convictions (Record No. 971721).

I. PROCEEDINGS

On September 1, 1994, 16-year-old Chauncey Jacob Jackson was
arrested and incarcerated on charges of capital murder and five
other felonies.[1]
The alleged crimes had all occurred the day before. On September
21, 1994, the Norfolk Juvenile and Domestic Relations District
Court issued transfer orders pursuant to Code ? 16.1-269.1,
certifying Jackson to the circuit court for criminal proceedings
as an adult on those charges.

On October 5, 1994, indictments were issued in the circuit
court charging Jackson with the following six felonies: (1) the
capital murder of Ronald Gene Bonney, Jr., while attempting to
rob him (Code ?? 18.2-31(4), 18.2-10), (2) attempted
robbery (Code ?? 18.2-58, 18.2-26), (3) and (4) two
charges of the use of a firearm while committing the
above-mentioned offenses (Code ?? 18.2-53.1, 18.2-10), (5)
the conspiracy to commit a robbery (Code ?? 18.2-22,
18.2-58, 18.2-10), and (6) the receipt of stolen property
(?? 18.2-108, 18.2-95). The trial date was fixed and
continued eight times, six times on Jackson’s motion and
two times on joint motion of Jackson and the Commonwealth.

During the 23-month interval between the date of the transfer
order and August 21, 1996, when Jackson’s trial began, it was
discovered that indictments had been issued before the circuit
court conducted the review of Jackson’s transfer required by Code
? 16.1-269.6. On June 23, 1995, after conducting the
required review, a circuit judge other than the trial judge
concluded that the applicable statutes had been complied with and
authorized the Commonwealth to proceed against Jackson by
indictment. However, Jackson was not indicted on these charges
for the second time until December 6, 1995.

At the beginning of a bifurcated jury trial on August 21,
1996, Jackson was arraigned on the December 1995 indictments. The
trial was conducted pursuant to the provisions of Code
?? 19.2-264.3, -264.4, and -295.1, and Jackson was found
guilty of all six charges. After hearing additional evidence, the
jury fixed Jackson’s punishment for the capital murder conviction
at death, based on the "future dangerousness"
predicate. Code ? 19.2-264.2. After considering a report
prepared by a probation officer pursuant to Code
? 19.2-264.5, the court sentenced Jackson in accordance
with the jury verdict in the capital murder case. Since he was a
juvenile when the offenses were committed, the court sentenced
Jackson on the remaining offenses in conformity with Code
?? 16.1-269.1 and -272 to terms of imprisonment
aggregating 48 years. The court suspended eighteen years
of the sentence for the conviction of receiving stolen goods,
subject to 20 years’ probation.

Pursuant to Code ? 17-110.1(F), we have consolidated the
automatic review of Jackson’s death sentence with the appeal of
right of his capital murder conviction. By order entered August
14, 1997, Jackson’s appeal of his other convictions was certified
from the Court of Appeals, Code ? 17-116.06, and we have
consolidated that appeal with the capital murder appeal and given
them priority on our docket. Code ? 17-110.2.

II. THE EVIDENCE

We review the evidence in the light most favorable to the
Commonwealth, the prevailing party in the circuit court. Roach
v. Commonwealth
, 251 Va. 324, 329, 468 S.E.2d 98, 101, cert.
denied
, 519 U.S. ___, 117 S.Ct. 365 (1996).

A. Guilt Phase

The day after Bonney’s murder, Jackson made a series of four
oral statements to police investigators. The first statement was
not recorded, but the remaining three statements were recorded
and transcribed. The following facts appear in one or more of
those statements.

On the evening of August 31, 1994, Jackson was riding in a
Jeep Cherokee driven by his friend, Rashad Vick. Vick stopped the
vehicle when three other friends, standing near a so-called
"dope house" on Vine Street, waved at them. One of the
three friends suggested robbing a man, later identified as Ronald
Gene Bonney, Jr., who was within sight, seated in the driver’s
seat of a Chevrolet Blazer parked nearby. Jackson and Vick
agreed.

Accordingly, two of the group acted as "lookouts."
Jackson procured a .25 caliber Beretta handgun from the Jeep.
Accompanied by Calvin Outlaw and Angelo Artis, the other two
members of the group, Jackson approached the parked vehicle.
Outlaw placed his leg against the driver’s door, next to
Bonney, and later took the keys from the ignition switch when
Bonney tried to drive away. Jackson, armed with the handgun,
entered the front seat of the vehicle from the passenger’s side,
and, according to his last statement, Jackson told Bonney to
"[g]ive it up." Bonney then "started patting his
pockets and said, ‘Give what up?’ . . . . And then
[Bonney] said, ‘Shoot me, you little f–ker.’ And then I cocked
the gun, and then Angelo stepped up, and the gun jammed, and I
tried to unjam it, and it shot." The gun fired three bullets
which hit Bonney in the chest and arm and caused his death.

Jackson fled in the Jeep. He was arrested late that night and
brought to police investigators for an interview at 7:20 a.m.

B. Penalty Phase

The Commonwealth introduced evidence of Jackson’s criminal
record. It began with a finding that he was not innocent of the
theft of a car when he was 13 years old and included, a few
months later, a finding that he was not innocent of receiving
stolen property. When Jackson was 14 years old, he was also found
not innocent of possession of cocaine. Additionally, Jackson was
found not innocent of a number of offenses dealing with motor
vehicles, such as unauthorized use of an inspection sticker,
driving without a license, altered license plates, and speeding.
Many of the offenses were committed while Jackson was on
probation for earlier offenses.

Jackson had been incarcerated for more than 13 months on the
present charges when he was released on bond on October 24, 1995.
In December 1995, while free on bond awaiting trial for the
subject offenses, Jackson was involved with several other persons
in the unlawful entry of a house in Jackson’s neighborhood, and
later convicted of the following 14 felony charges arising
therefrom: statutory burglary, four abductions, robbery,
attempted robbery, and seven charges of use of a firearm during
the commission of those crimes.

Additionally, an inmate testified that Jackson, again
incarcerated after the December 1995 incidents, assaulted him in
jail on February 9, 1996. This assault occurred less than two
months after Jackson had committed the December 1995 crimes and
before his capital murder trial in August and September 1996.

Jackson called as witnesses Dr. Evan S. Nelson and Dr. Thomas
Pasquale, both forensic psychologists, who had examined and
evaluated him. Both testified that Jackson had an antisocial
personality disorder, basing their diagnosis in part on Jackson’s
history of aggressive acts. Dr. Nelson assessed Jackson as having
a high number of "risk factors" for violent conduct and
Dr. Pasquale at one time had evaluated Jackson as being a
"moderate to severe [assault] risk." However, both
psychologists declined to say that Jackson would be a future
danger to society. Dr. Nelson felt that an affirmative answer to
the question required a psychologist to "predict with
certainty that someone will commit an offense of violence in the
future." Dr. Pasquale "follow[ed] the guidelines of the
American Psychological Association" which state that
"psychologists are best not to make such predictions due to
the fact that we have not developed the circumstances
sufficiently to be able to do so."

Although both psychologists testified that an antisocial
personality disorder cannot be cured, Dr. Pasquale opined that a
person with such a disorder could be "amenable to
management." On the other hand, Dr. Nelson thought that
Jackson’s history of continued violent acts, especially when
under the constraints of probation, bond, and incarceration
awaiting trial on these charges, was a "very negative
indicator for how much change [from his violent acts against
Bonney] we can expect from him over the years."

Jackson’s mother and grandmother, with whom Jackson lived,
testified that Jackson had been a normal child, and that they had
a good relationship with him. The grandmother said that Jackson
had been a good boy "until, you know, he got with the wrong
bunch of kids." And the mother testified that Jackson
received a "long-term" suspension from school because,
while waiting in the school office for some sort of a
disciplinary interview, Jackson had told another student that he
would kill "somebody" if he were suspended from school.

Neighbors and persons who had contact with Jackson when he was
living at home described him as "respectful,"
"polite," and "courteous." A member of
Jackson’s community also testified that Jackson called her to ask
"how [she] was doing" after an operation.

One of the members of the family that was burglarized and
robbed by Jackson and other intruders in December 1995 testified
that she knew Jackson and that he "just stood there"
and "had some tears in his eyes" during the robbery.
However, she also testified that Jackson had a gun and, like the
other intruders, was wearing a hood that partially masked his
face.

III. WAIVER OF CERTAIN ASSIGNMENTS OF ERROR

Jackson did not brief, and has therefore waived, assignments
of error 6, 9, 12, 21, 29, and 32. Rule 5:27; Rule 5:17(c)(4);
Williams v. Commonwealth, 248 Va. 528, 537, 450 S.E.2d
365, 372 (1994), cert. denied, 515 U.S. 1161 (1995). [2]

IV. ISSUES PREVIOUSLY DECIDED

In the remaining assignments of error, Jackson raises a number
of issues which we have previously decided adversely to his
contentions. Because he offers no persuasive reasons to modify
our previous conclusions, and we perceive none, we will adhere to
our previous rejections of those contentions. Hence, we will not
discuss these contentions beyond identifying the assignments of
error to which we believe each contention relates and citing
representative cases in which those arguments were expressly
rejected.

The death penalty constitutes cruel and unusual punishment.
Rejected in Goins v. Commonwealth, 251 Va. 442, 453, 470
S.E.2d 114, 122, cert. denied, 519 U.S. ___, 117 S.Ct. 222
(1996); Joseph v. Commonwealth, 249 Va. 78, 82, 452 S.E.2d
862, 865, cert. denied, 516 U.S. 876 (1995).

"[I]mposition of the death penalty based on ‘future
dangerousness’ is unconstitutional because the use of [a] prior
unadjudicated factor is permitted without any requirement that
the conduct be established by any standard of proof."
Rejected in Breard v. Commonwealth, 248 Va. 68, 74-75, 445
S.E.2d 670, 675, cert. denied, 513 U.S. 97l (1994); Satcher
v. Commonwealth
, 244 Va. 220, 228, 421 S.E.2d 821, 826
(1992), cert. denied, 507 U.S. 933 (1993); Stockton v.
Commonwealth
, 241 Va. 192, 210, 402 S.E.2d 196, 206, cert.
denied
, 502 U.S. 902 (1991).

The statute and the court’s instructions in conformity thereto
which permit imposition of the death penalty based on
"future dangerousness" are unconstitutional because
they are "incomplete and vague" and do not provide
"meaning and guidance." Rejected in Williams v.
Commonwealth
, 248 Va. at 535, 450 S.E.2d at 371.

Allowing the introduction of evidence of Jackson’s convictions
for other crimes in the sentencing phase to establish future
dangerousness violates the double jeopardy clause of the Fifth
Amendment of the United States Constitution. Rejected in Mickens
v. Commonwealth
, 247 Va. 395, 404, 442 S.E.2d 678, 684-85, vacated
on other grounds
, 513 U.S. 922 (1994); Stewart v.
Commonwealth
, 245 Va. 222, 229, 427 S.E.2d 394, 400, cert.
denied
, 510 U.S. 848 (1993); Yeatts v. Commonwealth,
242 Va. 121, 126, 410 S.E.2d 254, 258 (1991), cert. denied,
503 U.S. 946 (1992).

This Court’s method of reviewing the proportionality of the
sentence by considering the records only of those murder cases in
which sentences of death were imposed and not of those murder
cases in which lesser sentences were imposed is invalid. Rejected
in Stamper v. Commonwealth, 220 Va. 260, 283-84, 257
S.E.2d 808, 824 (1979), cert. denied, 445 U.S. 972 (1980)
("test is not whether a jury may have declined to recommend
the death penalty in a particular case but whether generally
juries in this jurisdiction impose the death sentence for conduct
similar to that of the defendant").

V. PRETRIAL MATTERS

A. Discovery of Exculpatory Evidence

Jackson complains that the trial court did not "order
appropriate relief" when it failed to require the
Commonwealth to produce "exculpatory statements, evidence or
admissions," and to "ensure that no such evidence
existed; or, in the event that it did exist, that it be provided
for counsel for the defendant." However, he does not state
in what respects the court failed to provide such relief or how
Jackson was prejudiced thereby.

As the Commonwealth observes on brief, the record indicates
that Jackson was supplied with all exculpatory evidence within
the Commonwealth’s knowledge, which he used at trial.
Accordingly, we find no merit in this contention.

B. Suppression of Jackson’s Statements to
Police

Jackson does not dispute the sufficiency of the Commonwealth’s
evidence indicating that before his in-custody interrogation by
the police, he was fully advised of his Fifth Amendment rights as
required by Miranda v. Arizona, 384 U.S. 436, 467-73, 479
(1966). Although a juvenile, Jackson was not unfamiliar with
these rights as evidenced by his statement to Investigator John
R. Malbon that he had previously been arrested and informed of
his legal rights "about three times." Malbon testified
that while being advised of his rights, Jackson appeared
"calm" and "alert." In any case, Jackson does
not contend that he failed to understand either his rights or the
effect of a waiver but rather that the police engaged in a
strategy designed to capitalize on Jackson’s youth and isolation.
His claim is that the police interrogated him for
"approximately 25 to 28 hours" and placed him "in
a situation where he was deprived of sleep, deprived of the
advice and counsel of his mother, [and he] was placed in a small
windowless interrogation room for hours on end, and denied
repeated access by his parent to him despite her best
efforts."

We find no support in the record for Jackson’s statement that
he was deprived of sleep and interrogated for 25 to 28 hours.
Jackson was brought to the Norfolk Police Department on the night
of Bonney’s murder and put in a temporary holding cell. Although
he was awakened several times during the night and offered food,
water, and use of the bathroom, Jackson was permitted to sleep
until 7:05 the following morning.

The investigators interrogated Jackson four separate times
between 7:20 a.m. and 1:59 the next morning. These sessions,
together with related contacts setting up the interviews and
permitting Jackson to review the written transcripts of the
preceding two interrogations, totaled four hours and thirty-eight
minutes. The longest uninterrupted period of contact with Jackson
was one hour and twenty minutes. After each contact, Jackson was
left alone either in a locked cell or a locked interview room
while police investigated the accuracy of his statements.

Jackson decided not to testify at the pretrial hearing on the
admissibility of his confession and called his mother, Carol Lee
Jackson, as his only witness on this subject. Her testimony
focused primarily on the alleged delay by the police in
permitting her to see her son.

Jackson does not claim that he asked for the presence of his
mother,[3] but suggests that police
interrogation of a 16-year-old juvenile without the presence of
one of his parents is a violation of his constitutional rights.
In Wright v. Commonwealth, 245 Va. 177, 185-86, 427 S.E.2d
379, 385-86 (1993), vacated on other grounds, 512 U.S.
1217 (1994), we rejected the contention of a juvenile capital
murder defendant that his confession was involuntary in part
because his mother was not present at the interrogation. Like
Jackson, Wright had been advised of his rights when arrested on
prior occasions and had knowingly waived those rights before
making the statement at issue. Perceiving no significant
difference between the situation in Wright and the
situation in this case, we reject Jackson’s suggestion.

The alleged police delay in honoring Ms. Jackson’s request to
see her son is irrelevant to the issue of the voluntariness of
his statements. As the United States Supreme Court observed in Moran
v. Burbine
, 475 U.S. 412, 422 (1986), "[e]vents
occurring outside of the presence of the suspect and entirely
unknown to him surely can have no bearing on the capacity to
comprehend and knowingly relinquish a constitutional right."
In Moran, the police failed to tell a suspect in custody
that his attorney was trying to reach him. Id. at 433.
Under these circumstances, the Constitution of Virginia provides
no greater protection than the Fifth Amendment of the United
States Constitution. See Walton v. City of Roanoke,
204 Va. 678, 682, 133 S.E.2d 315, 318 (1963). Hence, we find no
violation of Jackson’s rights under either constitution because
of the failure of the police to permit Ms. Jackson immediate
access to her son. For these reasons, we conclude that Jackson’s
statements were the product of his free will, made after a
knowing, voluntary, and intelligent waiver of his Miranda
rights. See Wright, 245 Va. at 185-86, 427 S.E.2d
at 385-86.

C. Change of Venue

Jackson complains that the trial court denied him the
opportunity to present evidence of pre-trial publicity.

Jackson further alleges that the trial court had "clearly
made up her mind on the issue of pre-trial publicity, and
ultimately on the motion for change of venue."

Contrary to these claims, the record shows that the trial
court merely told Jackson’s counsel that his oral proffer was
insufficient to schedule a hearing on this issue at that time.
However, the court permitted counsel a period of more than three
weeks in which to produce affidavits indicating that an impartial
jury could not be selected in Norfolk, after which the court
would consider fixing a date to hear evidence from both sides on
that issue. No affidavits were produced and, in fact, Jackson
filed no newspaper articles or other information with the court.

Thus, the court was not presented with evidence sufficient to
overcome the "presumption that a defendant can receive a
fair trial from the citizens of the county or city in which the
offense occurred." Stockton v. Commonwealth, 227 Va.
124, 137, 314 S.E.2d 371, 379, cert. denied, 469 U.S. 873
(1984). Hence, we reject this contention.

D. Jury Matters

1. Refusal to strike entire venire

As prospective members of the jury sat in the courtroom
completing jury questionnaires, the court conducted sentencing
proceedings in an unrelated matter and explained to those parties
that, although a defendant in a pre-1995 case may be eligible for
parole, an exact calculation of how much time he would serve was
impossible. Jackson asked the court to strike the panel because
this explanation was made within the hearing of his venire.

As soon as Jackson raised the issue, the court asked the
entire venire who among them had heard its discussion. Although
20 panel members indicated that they had heard parts of the
court’s explanations, none of them was among the venire
comprising panel members from whom the jury was actually
selected. Under these circumstances, we find no error in the
trial court’s refusal to strike the entire venire.

Peremptory strikes by the Commonwealth

In Batson v. Kentucky, 476 U.S. 79, 89 (1986), the
United States Supreme Court held that purposeful discrimination
based on race in selecting jurors violates the Equal Protection
Clause. If an accused makes a prima facie showing of the
prosecution’s use of peremptory strikes on the basis of race, the
burden shifts to the prosecution to articulate race-neutral
reasons for such strikes. Chichester v. Commonwealth, 248
Va. 311, 323, 448 S.E.2d 638, 646 (1994), cert. denied,
513 U.S. 1166 (1995).

In exercising its peremptory strikes, the Commonwealth removed
four black members of the venire. When challenged as to the
reasons for three of the four strikes, the Commonwealth gave the
following explanations: one prospective juror had "fairly
recent DUI and CCW convictions," another’s son had been
convicted of firearm possession and for selling drugs, and the
third was a social services employee. One of the prosecutors with
experience with social services employees found them to be
"fairly liberal" and without exception possessed of a
belief that treatment rather than punishment was a more
appropriate way of dealing with juvenile offenders.

Jackson, who is black, does not attack the racial neutrality
of these statements; instead he claims that they were pretextual
explanations designed to mask racially discriminatory reasons for
the peremptory strikes. Concluding that Jackson has failed to
carry his burden of showing that the court abused its discretion
in accepting those explanations, we find no merit in this
contention. See James v. Commonwealth, 247 Va. 459,
461-62, 442 S.E.2d 396, 398 (1994).

Refusal to grant Jackson’s strikes for cause

In reviewing a trial court’s action in denying a motion to
strike prospective jurors for cause, absent manifest error, we
defer to the trial court’s exercise of discretion. Roach,
251 Va. at 343, 468 S.E.2d at 109; Yeatts v. Commonwealth,
242 Va. at 134, 410 S.E.2d at 262. Applying this standard, we
find no error in the trial court’s refusal to sustain Jackson’s
motions to strike the following three prospective jurors for
cause.

Robert Lee was one of a group of five prospective jurors
present when another member of the group asked whether the jury
would be able to "say no to the death penalty and yes to
life but life without parole?" The court responded:

No. The jury has very limited things they’re told to do. They
can only do what they’re told to do. They can say life or they
can say death. That’s all they’re allowed to do.

The court offered to discuss the matter further with the five
members of the venire and to ask them whether her explanation had
affected the venire members in any way prejudicial to Jackson.
Jackson declined both offers. Hence, he waived any objection he
may have had to the court’s response.

Prospective juror Elizabeth Huffman’s first cousin was the
wife of the Commonwealth’s attorney for the City of Norfolk. The
Commonwealth was represented throughout the trial by two
assistant Commonwealth’s attorneys; the Commonwealth’s attorney
signed none of the pleadings and did not appear at trial.

Ms. Huffman testified that she generally saw her cousin’s
husband only twice a year at family gatherings and that her
limited association with him would not affect her ability to give
Jackson a fair trial. However, Jackson claims that, because she
indicated that these family gatherings were at Christmas and
other important holidays, she "gave the insurmountable
appearance of bias for a juror in a capital murder case." We
do not agree.

The relationship Ms. Huffman had with the Commonwealth’s
attorney does not disqualify her from sitting on this jury. See
Roach, 251 Va. at 343, 468 S.E.2d at 109 (Commonwealth’s
attorney in capital murder case formerly represented prospective
juror in matter and prospective juror still regarded him as his
"personal attorney"); Wise v. Commonwealth, 230
Va. 322, 325, 337 S.E.2d 715, 717 (1985), cert. denied,
475 U.S. 1112 (1986) (Commonwealth’s attorney "golfing
buddy" and "long standing" friend of prospective
juror).

An illiterate juror was seated over Jackson’s objection.
Recognizing that illiteracy does not disqualify a juror under any
statute in Virginia, Jackson contends that seating such a person
as a juror violates "his rights under the Fifth, Sixth and
Fourteenth Amendments to the United States Constitution" and
the "strong public policy against seating illiterate
jurors." Jackson claims that such a policy is reflected in
28 U.S.C. ? 1865, which requires a juror in the federal
courts to be able to read, write, and understand the English
language. Jackson argues that "he had the benefit of at
most, eleven jurors [and] [i]t is unknown what one juror or more,
may have said to [the illiterate juror] or whether they made any
mistakes, intentional or unintentional, in reading the written
materials."

We do not agree with Jackson. In Virginia, illiteracy does not
automatically disqualify a person from serving as a juror if the
trial court takes steps to assure that the illiterate juror has
essentially the same opportunity to review the written material
in the case as the other jurors. Here, the record indicates that
virtually all the documentary evidence, the court’s instructions
to the jury, and the verdict forms were read to the jury, and
that the illiterate juror was able to have any documents read to
her by the other jurors. And we assume that the other jurors
accurately read the documents to the illiterate juror.

E. Circuit Court Review of Juvenile Court

Transfer Proceedings

Jackson raises a number of issues stemming from the nine-month
period before the circuit court reviewed the juvenile court’s
transfer order.

As relevant, Code ? 16.1-269.6(B) in effect in September
1994 provided that:

The circuit court shall, within a reasonable time after
receipt of the case from the juvenile court (i) examine all such
papers, reports and orders; (ii) if either the juvenile or the
attorney for the Commonwealth has appealed the transfer decision,
conduct a hearing to take further evidence on the issue of
transfer, to determine if there has been substantial compliance
with ? 16.1-269.1, . . . and (iii) enter an order
either remanding the case to the juvenile court or advising the
attorney for the Commonwealth that he may seek an indictment.

As we have noted earlier, there was no such review before the
October 1994 indictments were returned. The review occurred on
July 23, 1995.

Jackson maintains that the court should have sustained his
motion to quash the October 1994 indictments on the ground that
they were issued before the circuit court had entered its July
1995 order authorizing the Commonwealth to proceed by indictment
against him. The Commonwealth responds that no such review was
required in this case because neither party appealed the transfer
order.

We do not agree with the Commonwealth. The statute clearly
required this review, even if neither party filed an appeal to
the juvenile court’s transfer order. If such an appeal is filed,
the statute required the circuit court to schedule a hearing in
addition
to its review.[4]

Accordingly, we conclude that the circuit court had no
jurisdiction to try Jackson on the October 1994 indictments. Even
so, the court had jurisdiction over Jackson following the
required circuit court review of the transfer order and it could
and did try him on the indictments issued thereafter.

This brings us to Jackson’s contentions that the court should
have sustained his motion to dismiss the December 1995 indictments.
The Commonwealth’s attorney sought and obtained those indictments
in accordance with the circuit court’s authorization order
entered after its transfer review in June 1995. Jackson reasons
that the circuit court never acquired jurisdiction over him
because it failed to act upon the juvenile court’s transfer order
within a reasonable time, as required by Code
? 16.1-269.6(B), and he never had the benefit of a
subsequent and more current juvenile court transfer review prior
to his December 1995 indictments. We find no merit in either
contention.

Although the requirement of a transfer review is
jurisdictional, the time within which that review must be made is
procedural. Jamborsky v. Baskins, 247 Va. 506, 511, 442
S.E.2d 636, 638-39 (1994). In Jamborsky, we concluded
that, absent a showing of prejudice to the juvenile’s due process
rights, a procedural error in conducting the review three days
after the then statutorily specified 21-day period for review,
did not invalidate the review. Id., 442 S.E.2d at 638.

Here, the nine-month period before conducting the
review was unreasonable and constituted a procedural error
in failing to comply with the statute in effect at that time.
However, Jackson does not claim that he was prejudiced by the
delay in conducting the review. Indeed, the record indicates that
Jackson treated the case as properly before the circuit court and
continued his preparation in the same manner before and after he
was told on October 24, 1995, of the circuit court’s failure to
conduct the review of his transfer order within a reasonable
time. The record fails to disclose that the procedural error
prejudiced Jackson in such a manner as to constitute a denial of
due process. See id. Accordingly, we find no merit
in this contention.

F. Violation of Rights to a Speedy Trial

This brings us to Jackson’s contention that his constitutional
and statutory rights to a speedy trial have been violated.
Jackson’s trial did not begin within the periods fixed for a
speedy trial by Code ? 19.2-243 and it may not have begun
within a period considered as constitutionally permissible under
normal circumstances.

However, we find no violation of those rights in these cases.
As we have noted, every continuance was either on Jackson’s
motion alone or a motion he made jointly with the Commonwealth.
Under these circumstances, we conclude that Jackson has waived
his statutory and constitutional rights to a speedy trial. O’Dell
v. Commonwealth
, 234 Va. 672, 681, 364 S.E.2d 491, 496, cert.
denied
, 488 U.S. 871 (1988); see also Barker
v. Wingo
, 407 U.S. 514, 534 (1972).

Nevertheless, since the circuit court had no jurisdiction to
try him on the October 1994 indictments, Jackson contends that
the waivers of his speedy trial rights before his release on bond
in October of 1995 were as void as those indictments. In
deciding whether to transfer Jackson for proper criminal
proceedings, Code ? 16.1-269.1(2) requires the juvenile
court to find "that probable cause exists to believe that
the juvenile committed the delinquent act as alleged." The
delinquent acts alleged were the commissions of six felonies
referred to earlier. Accordingly, Jackson’s speedy trial rights
attached upon that determination of probable cause. Compare
Code ? 16.1-269.1(2) with Code ? 19.2-243
(speedy trial rights of an accused attach upon general district
court’s finding of probable cause "to believe that the
accused has committed a felony").

It was those rights that Jackson waived in his motions for a
continuance of the trial, not any right having to do with the
validity of the indictments returned against him in the circuit
court. For these reasons, we reject this contention.

VI. THE TRIAL

A. Guilt Phase Issues

1. Testimony of Lakisha Spruill

Shortly before the expected close of the Commonwealth’s case
in chief, it appeared that a recess until the next day would be
required to obtain the presence of a witness for Jackson. To
conserve trial time, the court suggested that the Commonwealth
rest its case except for some evidence relating to Jackson’s
failure to conform to court orders to appear in criminal matters
and his flight to avoid arrest on an unrelated motor vehicle
charge. Defense counsel responded that "I think procedurally
we cannot do that." When the court responded that it was
"a perfectly acceptable procedure," defense counsel
made and argued the motion to strike, which the court considered
and denied.

The next day, the Commonwealth called Lakisha Spruill, an
eyewitness to Jackson’s encounter with Bonney. Jackson objected
to this action on the ground that the Commonwealth had rested its
case. Jackson did not claim that he would be surprised by
Spruill’s testimony or that he had not talked to her about her
testimony. In fact, he had summoned her as a witness. The court
overruled the objection, assigning a number of reasons for its
action, one of which was that it had the discretion to vary the
order of trial.

Jackson argues that he was prejudiced by the court’s action
(1) in requiring him to argue the motion to strike in which he
pointed out the lack of corroboration of Jackson’s attempted
robbery of Bonney before the Commonwealth had actually rested its
case, and (2) in permitting Spruill to testify after Jackson had
made his motion to strike.

In the absence of a showing of prejudice, a trial court may,
in the exercise of its discretion, permit the Commonwealth to
reopen its case after it has rested and the defendant has moved
to strike the evidence. Hargraves v. Commonwealth, 219 Va.
604, 608, 248 S.E.2d 814, 816-17 (1978). We will not reverse such
a ruling, absent an abuse of discretion. Id. Under the
circumstances of this case, and without necessarily approving the
procedure followed, we are unable to say that the court abused
its discretion in permitting the Commonwealth to call Spruill as
a witness after it had rested its case. Nor can we say that the
trial court erred in holding that Jackson was not prejudiced by
its action.

2. Rulings on sufficiency of evidence

Jackson contends that the court erred in overruling his
motions to strike made at the conclusion of the Commonwealth’s
case and after both parties had rested their case in the guilt
phase because the Commonwealth’s evidence was insufficient to
convict him of the crime of attempted robbery. He bases his claim
upon the Commonwealth’s alleged failure to sustain its burden of
proving that this crime has been committed (the corpus delicti). Maughs
v. City of Charlottesville
, 181 Va. 117, 120, 23 S.E.2d 784,
786 (1943) (Commonwealth must prove corpus delicti in every
criminal prosecution); Nicholas v. Commonwealth, 91 Va.
741, 750, 21 S.E. 364, 366-67 (1895). (Commonwealth’s burden to
establish corpus delicti); see also Epperly v.
Commonwealth
, 224 Va. 214, 228-29, 294 S.E.2d 882, 890-91
(1982).

Jackson’s statements, as successively amended, show clearly
that, pursuant to the agreement with his friends, Jackson
retrieved the .25 caliber handgun from the Jeep for the purpose
of robbing Bonney, and that, during the robbery attempt, when
Bonney refused to give him his money, Jackson stepped out of the
vehicle and fired the gun three times, killing Bonney.[5]

While Jackson recognizes that his statements tend to show the
corpus delicti of attempted robbery, he argues correctly that the
corpus delicti cannot be established solely by his uncorroborated
statements. Wheeler v. Commonwealth, 192 Va. 665, 669, 66
S.E.2d 605, 607 (1951). However, only slight corroboration of an
accused’s statements is required to establish the corpus delicti
when the accused fully confesses that he committed the crime. Clozza
v. Commonwealth
, 228 Va. 124, 133, 321 S.E.2d 273, 279
(1984), cert. denied, 469 U.S. 1230 (1985); Lucas v.
Commonwealth
, 201 Va. 599, 603, 112 S.E.2d 915, 918 (1960).

Jackson’s confession of the attempted robbery and murder of
Bonney was corroborated in many respects. The passenger who came
to the scene in Bonney’s Blazer testified that, after discussing
where to buy crack cocaine, Bonney and the passenger went to a
house in Norfolk where the passenger knew he could buy drugs.
When they arrived, the passenger directed Bonney to wait in the
Blazer while he went into the house to make the purchase. Lakisha
Spruill, an eyewitness who was seated on the porch of a house
next door, saw the passenger leave the Blazer and enter the house
while the driver remained in the Blazer. Spruill, who had known
Jackson for some time, saw him get into the passenger’s side of
the Blazer, talk to the driver, and the "[n]ext thing I
heard was gunshots."

The circumstantial evidence at the scene of the murder also
corroborated Jackson’s statements. A police investigator
identified Outlaw’s palm print on the driver’s door of Bonney’s
vehicle and also testified that the keys to Bonney’s vehicle were
not found in the Blazer, supporting Jackson’s statement that
Outlaw had reached into the car and removed the keys to prevent
Bonney from driving away.

In our opinion, these circumstances corroborate Jackson’s
confession that he had killed Bonney during an attempted robbery.
The evidence demonstrates that the defendant and a confederate
converged upon a stranger and engaged in conduct designed to
prevent the stranger from fleeing while the defendant spoke to
him and carried a loaded pistol. This corroborating evidence is
consistent with a reasonable inference that Jackson was
attempting to rob Bonney when he shot him. Indeed, this
corroborating evidence is more consistent with the commission of
the offense than it is with its non-commission. See Wright
v. Commonwealth
, 245 Va. at 194, 427 S.E.2d at 390
(confession to attempted rape corroborated by discovery of
victim’s underpants which had been removed and were found at
crime scene); cf. Phillips v. Commonwealth, 202 Va.
207, 212, 116 S.E.2d 282, 285 (1960) (corroborating evidence
"just as consistent with non-commission of the offense as it
is with its commission").

B. Penalty Phase Issues

1. Subjecting 16-year-old defendants to death penalty

Jackson, who had attained his 16th birthday only six weeks
before the offenses occurred, contends that execution of
16-year-old defendants is not authorized by statute in Virginia.
According to him, in Stanford v. Kentucky, 492 U.S. 361
(1989), the United States Supreme Court made it "very clear
that it is up to each state to decide the minimum age for
execution" and "provide[d] that each state must enact
[death penalty statutes] with great specificity, especially
dealing with juveniles, in order to allow for constitutionally
sound punishments." Since Code ?? 18.2-31, 19.2-264.2
and -264.5 do not specifically provide for the imposition of the
death penalty on juveniles convicted of capital murder, Jackson
concludes that the death penalty cannot be imposed upon him. We
do not agree.

Under the provisions of Code ?? 16.1-269.1 and -272,
juveniles over the age of 14 years are, after proper proceedings
in juvenile court and circuit court, subject to trial and
possible punishment as an adult. Indeed, in the statute in effect
at the time of the crime, the legislature provided for
transfer hearings in the juvenile court when such a
juvenile is charged with capital murder. Code
? 16.1-269.1(B). In our opinion, Code ? 16.1-269.1
addresses the prosecution and punishment of juveniles in as much
detail as the similar Kentucky and Missouri statutes which are
acknowledged in Stanford as sufficient to authorize those
states to impose the death penalty upon juveniles 16 or 17 years
of age.

Jackson also argues that imposition of the death penalty upon
a 16-year-old juvenile constitutes cruel and unusual punishment
in violation of the Eighth Amendment to the United States
Constitution. In Stanford, the Court stated, "[w]e
discern neither a historical nor a modern societal consensus
forbidding the imposition of capital punishment on any person who
murders at 16 or 17 years of age." 492 U.S. at 380.

And we discern no such consensus in Virginia, as evidenced by
its statutes subjecting juveniles over the age of 14 to
punishment as adults. Code ?? 16.1-269.1, -272. Therefore,
we conclude that a 16-year-old person who is convicted of capital
murder may be subjected to capital punishment.

2. Psychological evaluation under Code
? 19.2-264.3:1(F)(1)

Pursuant to the provisions of Code ? 19.2-264.3:1(E),
Jackson gave notice of his intent to present psychological
evidence on the issue of mitigation of punishment during the
penalty phase of the trial. In response, the Commonwealth
requested the court to order Jackson to submit to a court-ordered
examination by a psychologist designated by the court as provided
in Code ? 19.2-264.3:1(F)(1) in the following relevant
language:

If the attorney for the defendant gives notice pursuant
to [Code ? 19.2-264.3:1(E)] and the Commonwealth
thereafter seeks an evaluation concerning the existence or
absence of mitigating circumstances relating to the defendant’s
mental condition at the time of the offense, the court shall
appoint one or more qualified experts to conduct such an
evaluation. The court shall order the defendant to submit to such
an evaluation, and advise the defendant on the record in court
that a refusal to cooperate with the Commonwealth’s expert could
result in exclusion of the defendant’s expert evidence.

The succeeding paragraph states in pertinent part:

If the court finds . . . that the defendant has
refused to cooperate with an evaluation requested by the
Commonwealth, the court may admit evidence of such refusal or, in
the discretion of the court, bar the defendant from presenting
his expert evidence.

Code ? 19.2-264.3:1(F)(2).

Over Jackson’s objection, the court ordered him to submit to
an evaluation by Dr. Nelson, a forensic psychologist, appointed
under the provisions of these statutes. Jackson submitted to the
evaluation. Although Jackson, not the Commonwealth, called Dr.
Nelson as a witness in his own behalf in the penalty phase of the
trial, he complains that the court erred in several respects in
ordering his evaluation by Dr. Nelson.

First, he contends that the evaluation should not have been
ordered. According to Jackson, the statute violated his Fifth
Amendment rights against self-incrimination and his Sixth
Amendment rights to a fair trial because the statute required him
to cooperate with a court-appointed psychiatrist or suffer the
possibility that his expert evidence would be barred. We rejected
similar contentions in Stewart v. Commonwealth, 245 Va. at
243-44, 427 S.E.2d at 407-08, and we apprehend no reason to
modify our opinion on those issues.

Second, Jackson maintains that, in ordering the evaluation,
the court failed to warn Jackson of the consequences of his
failure to cooperate and ruled erroneously that Dr. Nelson could
testify in the penalty phase even though Jackson never called his
own expert on the issue of mitigation. We do not consider either
contention because Jackson called Dr. Nelson as his own witness.
A defendant in a criminal case cannot take advantage of an
alleged error he has injected into the record. Saunders v.
Commonwealth
, 211 Va. 399, 400, 177 S.E.2d 637, 638 (1970).

Nevertheless, Jackson claims that the court erroneously
"allowed Dr. Nelson to offer an opinion on Jackson’s future
dangerousness," which was "an opinion on the ultimate
issue of fact." We do not agree for two reasons.

First, Dr. Nelson merely testified as to the risk factors
associated with violence that were exhibited in Jackson’s
personality and caused him to diagnose Jackson as suffering from
an antisocial personality disorder. Dr. Nelson testified further
that Jackson exhibited more of the risk factors for future
violent acts "than many of the other [criminal] defendants I
have evaluated." Dr. Nelson quantified neither the extent of
those factors nor the probability of Jackson’s future
dangerousness and he did not opine that Jackson would be a danger
in the future. Jackson recognizes this in his later argument that
Dr. Nelson "could not say that Jackson would be a danger in
the future."

Second, even if Dr. Nelson had expressed an opinion of
Jackson’s "future dangerousness," such evidence would
not have constituted an opinion as to the ultimate issue in this
case. That issue is whether Jackson should be sentenced to death
or imprisoned for life. Payne v. Commonwealth, 233 Va.
460, 469-70, 357 S.E.2d 500, 506, cert. denied, 484 U.S.
933 (1987).

Accordingly, we reject all of Jackson’s claims relating to his
psychological evaluation and to Dr. Nelson’s testimony.

3. Sufficiency of Evidence of Future Dangerousness

Since neither psychologist was willing to predict that Jackson
would commit criminal acts of violence in the future, Jackson
argues that the court erred in submitting this issue to the jury
since it "could only arrive at a verdict by speculation and
guesswork." We disagree.

Expert opinion is not required on this issue if there is
sufficient evidence to permit a lay person to conclude that an
accused would commit criminal acts of violence in the future that
would constitute a serious danger to society. Indeed, we have
held that a jury is entitled to disregard an expert’s opinion
that a defendant would not be dangerous in the future. Saunders
v. Commonwealth
, 242 Va. 107, 114-15, 406 S.E.2d 39, 43, cert.
denied
, 502 U.S. 944 (1991). Rejecting Jackson’s contentions,
we conclude that there was sufficient evidence to permit a
reasonable person to conclude beyond a reasonable doubt that
Jackson would be dangerous in the future.

4. Instructions refused

Jackson contends the court erroneously refused two
instructions he tendered, one of which would have told the jury
that it "must consider a mitigating circumstance if you find
there is evidence to support it" and the other that the jury
was not required to fix the punishment at death even if the jury
found "beyond a reasonable doubt, the existence of the
aggravating circumstance(s)." The claim is that these
theories were not covered by other instructions.

We disagree. The only instruction granted in the penalty phase
told the jury that if it found beyond a reasonable doubt that the
Commonwealth proved future dangerousness, the jury may "fix
the punishment of the defendant at death." It further
instructed the jury that "if you believe from all of the
evidence that the death penalty is not justified," then the
jury could fix Jackson’s punishment at life imprisonment or life
imprisonment and a fine. Since both Jackson’s theories were
covered by these instructions, he is not entitled to have
duplicative instructions on those theories. See, e.g., Tuggle
v. Commonwealth
, 228 Va. 493, 508, 323 S.E.2d 539, 548
(1984), vacated and remanded on other grounds, 471 U.S.
1096 (1985), aff’d on remand, 230 Va. 99, 334 S.E.2d 838
(1985), cert. denied, 478 U.S. 1010 (1986). Furthermore,
we have held that instructions similar to those given by the
court in this case "adequately stated the statutory
framework and were sufficient." LeVasseur v. Commonwealth,
225 Va. 564, 595, 304 S.E.2d 644, 661 (1983), cert. denied,
464 U.S. 1063 (1984). For these reasons, we find no error in the
court’s refusal of Jackson’s tendered instructions.

VII. SENTENCE REVIEW

Under Code ? 17-110.1(C)(1) and (2), we are required to
determine "[w]hether the sentence of death was imposed under
the influence of passion, prejudice or any other arbitrary
factor," and "[w]hether the sentence of death is
excessive or disproportionate to the penalty imposed in similar
cases, considering both the crime and the defendant."

A. Passion and Prejudice

Jackson does not contend that the sentence of death was
imposed under any of the impermissible factors and our
independent review of the entire record fails to reveal that the
jury’s death sentence "was imposed under the influence of
passion, prejudice or any other arbitrary factor." Code
? 17-110.1(C)(1).

B. Excessiveness and Proportionality

Jackson argues that a review of similar capital murder cases
"would reflect the excessiveness and disproportionate
punishment inflicted on this 16 year old defendant." We
disagree.

In our proportionality review, we have considered
"whether other sentencing bodies in this jurisdiction
generally impose the supreme penalty for comparable or similar
crimes, considering both the crime and the defendant." Jenkins
v. Commonwealth
, 244 Va. 445, 461, 423 S.E.2d 360, 371
(1992), cert. denied, 507 U.S. 1036 (1993). Our comparison
of the record in this case with the records in other capital
murder cases, including those in which life sentences were
imposed, fails to indicate that the death penalty imposed in this
case is "excessive or disproportionate to the penalty
imposed in similar cases, considering both the crime and the
defendant." Code ? 17-110.1(C)(2).

Since the jury based its death sentence solely on the
"future dangerousness" predicate, we have given
particular consideration to other capital murder cases in which
robbery or attempted robbery was the underlying felony and the
death penalty was based only on the "future
dangerousness" predicate. Such cases were compiled in
Yeatts v. Commonwealth, 242 Va. at 143, 410 S.E.2d at
267-68, and supplemented in Chichester, 248 Va. at 332-33,
448 S.E.2d at 652, and Roach v. Commonwealth, 251 Va. at
351, 468 S.E.2d at 113 (17-year-old defendant).

Our conclusion is that, while there are exceptions, juries in
this Commonwealth generally impose the death sentence for
crimes comparable to Jackson’s murder of Bonney. Jackson killed
Bonney in cold blood simply because Bonney had refused to comply
with Jackson’s demand for money. This killing demonstrates
Jackson’s lack of respect for human life.

Although Jackson was only 16 years old when he killed Bonney,
his criminal conduct on other occasions, especially the violent
acts he committed while (1) on probation, (2) free on bond, and
(3) in jail awaiting trial for these offenses, manifests an
escalating pattern of violent criminal behavior that compels us
to conclude that the imposition of the death penalty in his case
is neither excessive nor disproportionate to the penalty imposed
in similar cases.[6]

VIII CONCLUSION

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

Affirmed.

 

JUSTICE HASSELL, concurring in part and dissenting in part.

Code ? 17-110.1(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."

We have stated that "the test of proportionality is
whether ‘juries in this jurisdiction generally approve the
supreme penalty for comparable or similar crimes.’" Davidson
v. Commonwealth, 244 Va. 129, 136, 419 S.E.2d 656, 660, cert.
denied, 506 U.S. 959 (1992) (citing Smith v. Commonwealth,
239 Va. 243, 271, 389 S.E.2d 871, 886, cert. denied,
498 U.S. 881 (1990) (quoting Stamper v. Commonwealth,
220 Va. 260, 284, 257 S.E.2d 808, 824 (1979), cert. denied,
445 U.S. 972 (1980))). Juries in Virginia generally have not
approved of the imposition of the death penalty for 16-year-old
capital murder offenders.

Since 1987, ten 16-year-old offenders have been convicted of
capital murder, and only one defendant, Chauncey J. Jackson, has
been sentenced to death. I agree with the majority that Jackson’s
offenses are atrocious and that he has exhibited little, if any,
regard for the value of human life or the consequences of his
criminal conduct. However, my review of all capital murder cases
involving 16-year-old offenders in Virginia leads me to the
conclusion that the sentence of death imposed upon Jackson is
excessive and disproportionate to penalties imposed in similar
cases.

For example, in Novak v. Commonwealth, 20 Va.
App. 373, 382, 457 S.E.2d 402, 406 (1995), a Virginia Beach jury
refused to impose the penalty of death upon a 16-year-old
defendant, Shawn Paul Novak, even though the jury convicted him
of capital murder. The facts in Novak are more egregious
than the facts in the present case. Novak killed two young boys,
age 7 and age 9. The seven-year-old victim died from "three
stab wounds which would have been a quick three thrusts resulting
in incapacitation and . . . repeated cutting and
slashing of the neck until it was almost decapitated
. . . ." The nine-year-old victim "had
been killed by a ‘blunt force injury’ and ‘multiple slashes’ on
his neck." Id. at 379-80, 457 S.E.2d at 405.

In Owens v. Commonwealth, No. 2259-95-1 (Va. Ct.
App. Nov. *19, 1996), the defendant, Marvin T. Owens, was
convicted of capital murder. Owens killed four persons, including
a 14-year-old boy, by using a pistol to shoot each victim in the
head. Just as Jackson, Owens had an extensive juvenile criminal
history, including commitments to the Department of Youth and
Family Services for the following criminal offenses: conspiracy
to distribute cocaine, possession of cocaine with the intent to
distribute, and possession of cocaine. The jury fixed Owens’
punishment at life imprisonment.

The case of Reid v. Commonwealth, No. 1175-95-1
(Va. Ct. App. July 2, 1996), is very similar factually to the
present case. There, the defendant, Dwayne M. Reid, then 16 years
old, approached two males who were traveling in a truck in
Suffolk. The men in the truck, Joseph Mehalko and Tommy Runyon,
asked several young male pedestrians, including Reid, whether any
of the pedestrians had "a twenty rock [of crack
cocaine]." One of the pedestrians threw an item, about the
size of a pebble, through a window into the truck, and Mehalko
and Runyon, thinking the item was a rock of crack cocaine, began
to search for it. As Runyon retrieved some money from his wallet,
Mehalko noticed "a gun come through the passenger side
window." A struggle ensued, and Reid shot Runyon in the
head. Runyon subsequently died as a result of the gunshot wound.

Reid had a prior criminal record, and he had been convicted of
the following crimes: two counts of armed robbery and two
different offenses of use of a firearm during the commission of
robbery. At a bench trial, Reid was convicted of capital murder
and sentenced to life imprisonment.

In Rea v. Commonwealth, 14 Va. App. 940, 941,
421 S.E.2d 464, 465 (1992), the defendant, Stephen Rea, was
convicted, at a jury trial, of three separate counts of capital
murder. Rea killed three persons, including a 17-year-old boy, by
shooting them with a firearm. Rea had an extensive juvenile
criminal history. He was arrested for petty larceny which was
taken under advisement for six months. He was arrested and
charged for disorderly conduct, vandalism, and "being a
runaway," and he was convicted and placed on supervised
probation. He was arrested for trespass, which was resolved at
the juvenile intake. He was arrested for violation of his
probation. He was subsequently arrested for breaking and
entering, petty larceny, and grand larceny, and placed on house
arrest and ordered to pay restitution. He was also arrested for
eluding police, reckless driving, and driving without a Virginia
operator’s license. The jury fixed Rea’s punishment at life
imprisonment for each of the capital murder convictions. See
also Faulk v. Commonwealth, CR 95J2 and
CR95J4 (Southhampton County Cir. Ct. Sept. 17, 1996) (Defendant,
16 years of age at the time of the offenses, pled guilty to
capital murder in the commission of robbery, capital murder in
the commission of abduction, and robbery with a weapon, and
sentenced to life imprisonment.); Prostell v. Commonwealth,
No. J-1179 (Virginia Beach Cir. Ct. June 18, 1987) (The
16-year-old defendant, whose criminal history included one
previous felony conviction as a juvenile, pled guilty to capital
murder and received life imprisonment. The defendant killed the
victim after being advised by a co-defendant that the defendant
would receive $300 for the murder of the victim. At the time of
the murder, the defendant was on probation after having been
found guilty of robbery.); Campbell v. Commonwealth,
No. 5559 (Amherst County Cir. Ct. June 4, 1987) (The defendant
was found guilty at a bench trial of capital murder and certain
other related crimes. The defendant, 16 years old at the date of
this offense, entered a pizza restaurant wearing a ski mask and
armed with a loaded 12-gauge shotgun, ordered the employees to
the floor, and shot a restaurant employee in the head, killing
him. The defendant was sentenced to life imprisonment.); Stewart
v. Commonwealth, No. 2928-97-1 (Va. Ct. App. July 7, 1997)
(This 16-year-old defendant pled guilty in the Norfolk Circuit
Court to capital murder and certain other related offenses and
was sentenced to life without parole plus 18 years. The defendant
killed the victim with a pistol during an attempted robbery.). Tross
v. Commonwealth, 21 Va. App. 362, 464 S.E.2d 523 (1995)
(This 16-year-old defendant was convicted of capital murder,
robbery, and using a firearm to commit murder and was sentenced
to life imprisonment for the capital murder, 20 years’
imprisonment for the robbery, and two years’ imprisonment for the
firearm charge. His prior record included convictions for petit
larceny and possession of a beeper/pager on school grounds. He
had been arrested and charged on two separate occasions for
assault and battery, but those charges were nolle prossed.).

Shawn Novak, age 16, killed two young boys, but he was not
sentenced to death. Stephen Rea, age 16, killed three people,
including a teenager, but he was not sentenced to death. Marvin
Owens, age 16, killed four persons, but he was not sentenced to
death. Dwayne Reid, who committed crimes substantially similar to
Jackson’s crimes, was not sentenced to death. Upon comparison of
Jackson’s sentence of death, along with his criminal history and
facts surrounding his case, to the facts and criminal histories
of the other defendants who committed capital offenses at age 16,
I can only conclude that Jackson’s sentence of death is both
excessive and disproportionate in violation of Code
? 17-110.1 (C)(2).

I would reduce Jackson’s sentence of death to life
imprisonment. In view of Jackson’s sentences for his other
convictions, he would remain incarcerated for the remainder of
his natural life.

 

 

 

 

FOOTNOTES:

[1] Although Jackson’s middle name
is shown as "Jacob" in the pleadings and in many of the
documents in the file, he described and spelled it as
"Jabob" in his statements to the police.

[2] It has been difficult to
ascertain which assignments of error have been briefed or which
of the 37 assignments of error relate to the 29 questions
presented by Jackson. Jackson has not given "a clear and
exact reference to the particular assignment of error to which
each question relates" as required by Rule 5:27 and
5:17(c)(4). Indeed, he rarely refers to the assignments of error
by number in the arguments in his brief.

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