KASI v. COMMONWEALTH OF VA
November 6, 1998
Record Nos. 980797, 980798
MIR AIMAL KASI
COMMONWEALTH OF VIRGINIA
J. Howe Brown, Judge
Present: All the Justices
OPINION BY JUSTICE A. CHRISTIAN COMPTON
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
On Monday, January 25, 1993, near 8:00 a.m., a
number of automobiles were stopped in two north-bound, left-turn
lanes on Route 123 in Fairfax County at the main entrance to the
headquarters of the Central Intelligence Agency (CIA). The
vehicle operators had stopped for a red traffic light and were
waiting to turn into the entrance.
At the same time, a lone gunman emerged from
another vehicle, which he had stopped behind the automobiles. The
gunman, armed with an AK-47 assault rifle, proceeded to move
among the automobiles firing the weapon into them. Within a few
seconds, Frank Darling and Lansing Bennett were killed and
Nicholas Starr, Calvin Morgan, and Stephen Williams were wounded
by the gunshots. All the victims were CIA employees and were
operators of separate automobiles. The gunman, later identified
as defendant Mir Aimal Kasi, also known as Mir Aimal Kansi, fled
At this time, defendant, a native of Pakistan,
was residing in an apartment in Reston with a friend, Zahed Mir.
Defendant was employed as a driver for a local courier service
and was familiar with the area surrounding the CIA entrance.
The day after the shootings, defendant returned
to Pakistan. Two days later, Mir reported to the police that
defendant was a "missing person."
On February 8, 1993, the police searched Mir’s
apartment and discovered the weapon used in the shootings as well
as other property of defendant. Defendant had purchased the
weapon in Fairfax County three days prior to commission of the
On February 16, 1993, defendant was indicted
for the following offenses arising from the events of January
25th: Capital murder of Darling as part of the same act that
killed Bennett, Code Sect. 18.2-31(7); murder of Bennett,
Code Sect. 18.2-32; malicious woundings of Starr, Morgan,
and Williams, Code Sect. 18.2-51; and five charges of using
a firearm in commission of the foregoing felonies, Code Sect.
Nearly four and one-half years later, on June
15, 1997, agents of the Federal Bureau of Investigation (FBI)
apprehended defendant in a hotel room in Pakistan. Defendant had
been travelling in Afghanistan during the entire period, except
for brief visits to Pakistan.
On June 17, 1997, defendant was flown from
Pakistan to Fairfax County in the custody of FBI agents. During
the flight, after signing a written rights waiver form, defendant
gave an oral and written confession of the crimes to FBI agent
Bradley J. Garrett.
Following 15 pretrial hearings, defendant was
tried by a single jury during ten days in November 1997 upon his
plea of not guilty to the indictments. The jury found defendant
guilty of all charges and, during the second phase of the
bifurcated capital proceeding, fixed defendant’s punishment at
death based upon the vileness predicate of the capital murder
sentencing statute, Code Sect. 19.2-264.4.
On February 4, 1998, after three post-trial
hearings, during one of which the trial court considered a
probation officer’s report, the court sentenced defendant to
death for the capital murder. Also, the court sentenced defendant
to the following punishment in accord with the jury’s verdict:
For the first-degree murder of Bennett, life imprisonment and a
$100,000 fine; for each of the malicious woundings, 20 years’
imprisonment and a $100,000 fine; and for the firearms charges,
two years in prison for one charge and four years in prison for
each of the remaining four charges.
The death sentence is before us for automatic
review under former Code Sect. 17-110.1(A) (now Sect.
17.1-313(A)), see Rule 5:22, and we have
consolidated this review with defendant’s appeal of the capital
murder conviction. Former Code Sect. 17-110.1(F) (now Sect.
17.1-313(F)). In addition, by order entered April 23, 1998,
we certified from the Court of Appeals of Virginia to this Court
the record in the noncapital convictions (Record No. 980798).
That record consists only of three notices of appeal from the
conviction order. No other effort has been made to perfect the
noncapital appeals; therefore, those convictions will be affirmed
and we shall not address them further.
In the capital murder appeal, we will consider,
as required by statute, not only the trial errors enumerated by
the defendant but also whether the sentence of death was imposed
under the influence of passion, prejudice, or any other arbitrary
factor, and whether the sentence is disproportionate to the
penalty imposed in similar cases. Former Code Sect.
17-110.1(C) (now Sect. 17.1-313(C)).
At the outset, we will discuss the number,
nature, and legitimacy of many issues raised by defendant. He
assigned 92 errors allegedly committed by the trial court
(placing 91 in his opening brief) and has not argued many of them
(Nos. 8, 14, 15, 17, 18, 20, 21, 25, 26, 28, 32, 45, 47, 52, 61,
69, 72, 77, 78, 80, 89, 91 and 92); hence, they are waived and
will not be considered. Jenkins v. Commonwealth,
244 Va. 445, 451, 423 S.E.2d 360, 364 (1992), cert. denied,
507 U.S. 1036 (1993).
In addition, defendant has effectively
presented no meaningful argument in support of many assignments
that are actually briefed. We have considered these so-called
arguments and find no merit in any of them. Weeks v. Commonwealth,
248 Va. 460, 465, 450 S.E.2d 379, 383 (1994), cert. denied,
516 U.S. 829 (1995). In this category are assignments 2, 5, 16,
19, 22, 23, 24, 29, 30, 33, 43, 51, 54, 73, and 87.
Also, other errors alleged (Nos. 6, 39, and 64)
raise issues we previously have decided adversely to the argument
defendant makes, and those decisions will not be revisited here.
Typical of this group is assignment of error 39: "The
Circuit Court erred in denying the defendant’s motion to declare
the Virginia death penalty statute unconstitutional."
Finally, from our study of this entire record,
including the 4,903-page appendix, we have determined that many
assignments of error that are argued in depth are devoid of any
merit whatever. These are: Nos. 1, 3, 7, 9, 10, 27, 31, 34, 37,
38, 40, 41, 42, 44, 46, 48, 49, 62, 63, 65, 67, 68, 71, 74, 75,
76, 79, and 88. This group requires no extended analysis and
mainly raises issues involving the exercise of discretion by the
trial judge on subjects such as continuances, pretrial publicity,
discovery, and appointment or disqualification of counsel.
Typical of this group is assignment of error 49: "The
Circuit Court erred in denying defendant’s motions for a
continuance filed on August 11, 1997, and October 1, and
October 8." We have considered this entire group of
alleged errors and reject them without any further discussion.
The remaining 23 assignments of error raise
issues, inter alia, regarding defendant’s
apprehension, his confession, suppression of evidence, jury
selection, and juror conduct. There is no conflict in the
evidence relating to any of the facts presented during the guilt
phase of this trial; the defendant presented no evidence.
Near 4:00 a.m. on June 15, 1997, Agent Garrett
and three other armed FBI agents, dressed in "native
clothing," apprehended defendant in a hotel room in
Pakistan. Defendant responded to a knock on the room’s door and
the agents rushed inside. Defendant, who has "a master’s
degree in English," immediately began screaming in a foreign
language and refused to identify himself. After a few minutes,
defendant was subdued, handcuffed, and gagged. Garrett identified
him through the use of fingerprints. During the scuffle,
defendant sustained "minor lacerations" to his arm and
When the agents left the hotel with defendant
in custody, he was handcuffed and shackled, and a hood had been
placed over his head. He was transported in a vehicle for about
an hour to board an airplane. During the trip, Garrett told
defendant he was an FBI agent.
The ensuing flight lasted "a little over
an hour." After the plane landed, defendant was transferred
to a vehicle and driven for about 40 minutes to a "holding
facility" where he was turned over to Pakistani authorities.
The FBI agents removed defendant’s handcuffs, shackles, and hood
when the group arrived at the holding facility, but the persons
in charge of the facility put other handcuffs on him. Defendant
was placed in one of the eight cells in the facility, where he
remained until the morning of June 17.
During defendant’s stay in the facility, the
FBI agents never left his presence or allowed him to be
interrogated or "harassed." He was allowed to eat,
drink, and sleep. On two occasions, the agents removed defendant
from his cell to "look at his back and look at his arm"
and to take his blood pressure and pulse. The agents did not
interrogate defendant in the holding facility and made certain he
was treated "fairly and humanely."
On June 16, "late in the day,"
Garrett was advised by an official at the U. S. Embassy in
Pakistan that defendant would be "released" the next
morning. On June 17 near 7:00 a.m., defendant "was allowed
to be released" from the facility in the custody of the FBI
agents. He was handcuffed, shackled, and hooded during a
15-minute ride to an airplane. Once on the plane, the hood was
removed. Shortly after boarding the aircraft, a physician checked
defendant’s "well being."
During the 12-hour flight to Fairfax County,
Garrett first conducted a "background" conversation
with defendant, discussing "his life in the United States,
where he lived, where he worked." Garrett knew, from his
four-and-one-half-year search for defendant, that he was a
Pakistani national. Defendant was not a U.S. citizen and he had
not returned to the United States after he fled on January 26,
After the background conversation, Garrett
advised defendant of rights according to Miranda v. Arizona,
384 U.S. 436 (1966). Defendant signed an FBI "Advice of
Rights" form, after reading it and having it explained to
him. He indicated he was waiving his rights and was willing to
give a statement. The subsequent interview lasted about one and
one-half hours before defendant signed a written statement
summarizing the interview.
In the written statement, defendant confirmed
he purchased the AK-47 rifle and about 150 rounds of ammunition
several days before the incident in question. He said he drove
his pickup truck to the scene, "got out of my vehicle &
started shooting into vehicles stopped at a red light."
Continuing, he stated that "I shot approximately 10 rounds
shooting 5 people. I aimed for the chest area of the people I
shot. I then returned to my truck & drove back to my
apartment." He also stated that "several days before
the shooting I decided to do the shooting at the CIA or the
Israeli Embassy but decided to shoot at the CIA because it was
easier because CIA officials are not armed."
As part of his oral statement to Garrett,
defendant enumerated political reasons "why he wanted to do
this shooting." He said he was "upset" because
U.S. aircraft had attacked parts of Iraq, he was "upset with
the CIA because of their involvement in Muslim countries,"
and he was concerned with "killing of Pakistanians by U.S.
components." When Garrett asked defendant "why he
stopped shooting," he replied "there wasn’t anybody
else left to shoot." When asked about the gender of those
shot, defendant replied "that he only shot males because it
would be against his religion to shoot females."
On appeal, defendant mounts several
constitutional and other attacks upon the trial court’s refusal
to suppress and the court’s admission in evidence of defendant’s
statement to Garrett. First, defendant claims the statement was
involuntary and was obtained through coercion. We do not agree.
The evidence on the issue, presented both at a
pretrial suppression hearing and during the guilt phase of the
trial, was overwhelming and uncontradicted that defendant validly
waived any constitutional rights he may have had in connection
with the statement and that the statement was voluntary. No
threats or promises were made to defendant, either when he was
apprehended or aboard the aircraft, and he was not offered
anything in return for his statement. Defendant, who "had
good command of the English language," told Garrett that he
"understood his rights fully and completely." He never
refused to answer any question, and at no time during the 12-hour
return flight did he express any fear or indicate he was making a
statement because he was afraid. There is no evidence of coercion
while he was detained in Pakistan. Indeed, the FBI agents were
careful to assure he was treated humanely. The trial court’s
detailed findings of fact that the waiver was knowing, voluntary,
and intelligent and that the statement was voluntary are fully
supported by the record. See Roach v. Commonwealth,
251 Va. 324, 340-41, 468 S.E.2d 98, 108, cert. denied,
519 U.S. 951 (1996).
Next, defendant, attacking the jurisdiction of
the trial court, contends that "either the Extradition
Treaty between the United States and Pakistan or the Vienna
Convention for Consular Relations were violated" requiring
"sanctions" to be imposed for these alleged violations.
He argues the "abduction/seizure of Kasi was conducted
outside and in express violation of the Extradition Treaty
between the United States and Pakistan and without invoking the
procedures set out by the laws of each country" and was
contrary to law. He says the "sanction" for violation
of the treaty should be reversal of the capital murder conviction
and "repatriation to Pakistan without prejudice for a new
Continuing, he argues the "record shows
that at no time did the Federal agents advise Kasi of his right
to consult with a Pakistani diplomat pursuant to Article 36(1) of
the Vienna Convention on Consular Relations." He says
"that suppression of all statements obtained by virtue of
this illegal arrest and abduction in violation of the extradition
treaty . . . and the violations of the Vienna
Convention is the appropriate alternative sanction to enforce
treaty rights violated." We reject the arguments based on
the treaty and the "Vienna Convention."
During a pretrial hearing, the Commonwealth’s
Attorney stipulated that defendant was arrested in Pakistan by an
FBI agent; that the agent did not "have any jurisdiction in
the nation of Pakistan;" that defendant "was not taken
before a judicial officer . . . until he returned to the United
States and was presented before this Court"; that "in
the course of time from his arrest until he was brought to this
country there was no compliance with the Vienna Convention until
my letter of July 3rd"; and that "the seizure in
Pakistan was not made pursuant to any Pakistani paper or document
which would allow him to be seized under the laws of
Pakistan." The record shows there "was an unlawful
flight warrant issued by a U.S. Magistrate in Alexandria in
February of 1993 authorizing Federal agents to arrest Mr.
Kansi." Also, the record shows that the July 3 letter
mentioned in the stipulation was a letter from the prosecutor
formally notifying the defense of defendant’s right to seek
The defendant relies upon an Extradition Treaty
between the United States and the United Kingdom. 47 Stat. 2122
(1931). Apparently, there is no extradition treaty directly
between the United States and Pakistan. But the Attorney General
is willing to assume, as represented by the defendant, that the
"Islamic Republic of Pakistan has continued in force the
treaty promulgated between its former colonial sovereign, the
United Kingdom, and the United States," and that it applies
to this case.
The defendant focuses on Article 8 of the
treaty, which provides:
criminals under the provisions of this Treaty shall be
carried out in the United States and in the territory of
His Britannic Majesty respectively, in conformity with
the laws regulating extradition for the time being in
force in the territory from which the surrender of the
fugitive criminal is claimed."
Contrary to defendant’s contention, nothing in
this treaty can be construed to affirmatively prohibit the
forcible abduction of defendant in this case so as to divest the
trial court of jurisdiction or to require that
"sanctions" be imposed for an alleged violation of the
treaty. The decision on this issue is controlled by United
States v. Alvarez-Machain, 504 U.S. 655 (1992).
There, the respondent, a citizen and resident
of Mexico, was forcibly kidnapped from his home and flown by
private plane to Texas, where he was arrested for his
participation in the kidnapping and murder of a federal Drug
Enforcement Administration (DEA) agent and his Mexican pilot. DEA
agents were "responsible" for the abduction, although
they were not personally involved in it. Id. at 657. The
United States has an extradition treaty with Mexico. The issue in
the case was "whether a criminal defendant, abducted to the
United States from a nation with which it has an extradition
treaty, thereby acquires a defense to the jurisdiction of this
country’s courts." Id.
The Supreme Court, answering that query in the
negative, said: "Extradition treaties exist so as to impose
mutual obligations to surrender individuals in certain defined
sets of circumstances, following established procedures." Id.
at 664. The Court held that the treaty’s language, "in the
context of its history," failed to support the proposition
that the treaty expressly prohibited abductions outside its
terms. Id. at 666. The Court went on to hold that the
treaty should not be interpreted to include an implied term
prohibiting prosecution where a defendant’s presence is obtained
by means other than those established by the treaty. Id.
at 666, 668-69. See Ker v. Illinois, 119
U.S. 436 (1886) (criminal defendant forcibly abducted from Peru
to United States had no right to be returned to this country only
in accordance with terms of extradition treaty between United
States and Peru).
In the present case, as in Alvarez-Machain
and Ker, defendant’s seizure in a foreign country and his
return to this country were not accomplished pursuant to an
extradition treaty. The treaty language here does not expressly
or impliedly prohibit prosecution in the United States where the
defendant’s presence was obtained by forcible abduction. Like the
treaty in Alvarez-Machain, this treaty "does not
purport to specify the only way in which one country may gain
custody of a national of the other country for the purposes of
prosecution." Id. at 664. In sum, defendant was not
"extradited" under the provisions of this treaty.
As a corollary to the treaty argument,
defendant contends his seizure was "illegal and
unreasonable" in violation of the Fourth Amendment to the
U.S. Constitution and the equivalent Article I, Sect. 10 of
the Constitution of Virginia. We do not agree.
In United States v. Verdugo-Urquidez,
494 U.S. 259, 266 (1990), the Supreme Court held: "The
available historical data show . . . that the purpose of the
Fourth Amendment was to protect the people of the United States
against arbitrary action by their own Government; it was never
suggested that the provision was intended to restrain the actions
of the Federal Government against aliens outside of the United
States territory." The Court also said, "There is
likewise no indication that the Fourth Amendment was understood
. . . to apply to activities of the United States
directed against aliens in foreign territory or in international
waters." Id. at 267.
We now turn to defendant’s reliance on Article
36(1) of the Vienna Convention on Consular Relations and Optional
Protocol on Disputes (Vienna Convention), 21 U.S.T. 77, T.I.A.S.
No. 6820 (Apr. 24, 1963), and his claim that its alleged
violation requires suppression of his confession. Defendant
conceded in the trial court there is no reported authority for
the idea that a violation of the treaty creates any legally
enforceable individual rights. And, the provisions of the
document create no such rights. Indeed, the preamble states that
the "purpose . . . is not to benefit individuals
but to ensure the efficient performance of functions by consular
posts on behalf of their respective States." Article 36
merely deals with notice to be furnished to the consular post of
a national’s state when the national is arrested or taken into
custody in a foreign state.
In the present case, it makes no sense to say
that, when the defendant was arrested in Pakistan and turned over
to Pakistani authorities, the Vienna Convention required
defendant to be notified of his right to contact Pakistani
consular officers, even if that country maintained a
"consulate" within its own borders. Indeed, the
prosecutor, as soon as defendant returned to this country,
notified the defense that defendant had the right to contact the
Pakistani consulate here.
Finally on this issue, defendant’s suggestion
that if he had been advised of his so-called rights under the
Vienna Convention, he would not have confessed to agent Garrett
is just as speculative as the theory of "prejudice"
that the Supreme Court recently rejected in Breard v. Greene,
___ U.S. ___, 118 S.Ct. 1352, 1355 (1998) (repudiating claim that
if Vienna Convention had not been violated defendant would have
accepted alleged plea agreement).
Next, defendant challenges the admissibility of
an arguably inculpatory statement he made to a Fairfax County
deputy sheriff and asserts that such a claim is encompassed by
assignments of error 4 and 83. Those assignments, however,
challenge defendant’s statements to federal authorities following
his apprehension in Pakistan. None of defendant’s assignments of
error raises the issue argued; thus, it is procedurally
defaulted. Rule 5:17(c).
Next, defendant contends the trial court erred
when it refused to suppress the contents of a suitcase found
during a search of the apartment where defendant concealed the
murder weapon. We disagree.
The record clearly establishes that Zahed Mir,
defendant’s roommate and the lessee of the apartment, consented
to the search of a suitcase found in a hall closet within the
apartment. Two handguns and magazines of AK-47 ammunition were
found in the suitcase and eventually were received in evidence.
The investigating police officer testified that he had received
Mir’s "verbal consent several times" to open the
suitcase. The trial court correctly concluded, under the
evidence, that Mir had the authority to give permission to the
officer "to look in" the suitcase, rendering the search
Next, defendant contends the trial court erred
in denying his motion for a change of venue. Defendant asserts
there were "inflammatory and inaccurate media reports"
with "all three local newspapers" reporting that
defendant had confessed to the crimes. Arguing that repeated
inflammatory pretrial media reports mandate a change of venue,
defendant says his constitutional right to a fair trial in this
case was violated by refusal of his motion. We do not agree.
There is a presumption that a defendant will
receive a fair trial in the jurisdiction where the crimes were
committed. To overcome the presumption, a defendant must
establish that the citizens of the jurisdiction harbor such
prejudice against him "that it is reasonably certain he
cannot receive a fair trial." Lilly v. Commonwealth,
255 Va. 558, 570, 499 S.E.2d 522, 531 (1998). The decision
whether to grant a motion for a change of venue lies within the
sound discretion of the trial court. Id.
In the present case, even though virtually all
the prospective jurors indicated they had heard or read about the
case, the court, after careful voir dire, seated a panel of 24
jurors, following detailed questioning of only 58 persons.
Defendant did not overcome the presumption that he could receive
a fair trial; there was no abuse of discretion by the trial
court, especially in light of the relative ease with which the
jury was selected. See Roach, 251 Va. at 342-43,
468 S.E.2d at 109.
Next, the defendant contends that the
prosecutor, for discriminatory reasons, used a peremptory strike
to remove juror 14, the "only juror of any color on the
panel," according to defendant, in violation of Batson
v. Kentucky, 476 U.S. 79 (1986), and that the trial court
erred in ruling to the contrary. We disagree.
Responding to the claim, the Commonwealth’s
Attorney represented to the trial court he had struck the juror
"because she was the only member of the entire panel who
never read anything about the case or heard anything about the
case. My fear is somebody like that is kind of detached from the
real world, and that’s why I struck her." The trial court
accepted this explanation, and properly denied defendant’s claim.
Batson dictates that purposeful
discrimination based upon race in selecting jurors violates the
Equal Protection Clause. Once an accused makes a prima facie
showing of such discrimination, a prosecutor must furnish a
reasonable explanation in rebuttal, showing that the reason for
the peremptory strike was race neutral. If the explanation is
based upon factors other than the juror’s race, it is deemed to
be race neutral. Id. at 89. Accord Wright v.
Commonwealth, 245 Va. 177, 186, 427 S.E.2d 379, 386
(1993), vacated on other grounds, 512
U.S. 1217 (1994).
Assuming, without deciding, that defendant
established a prima facie case of purposeful discrimination under
Batson, we hold that the record supports the trial court’s
conclusion that juror 14 was not struck from the panel because of
her race. Striking a juror because she had not even read or heard
anything about a well-publicized case clearly is a race-neutral
reason. See Spencer v. Murray, 5 F.3d 758,
763-64 (4th Cir. 1993) (prosecutor entitled to strike potential
juror if he found it "odd" that juror had heard nothing
about highly publicized case), cert. denied, 510
U.S. 1171 (1994).
Next, defendant argues that the evidence was
insufficient to support his capital murder conviction. Defendant
notes that to find him guilty of Darling’s capital murder, the
Commonwealth had to prove that Bennett’s killing was murder in
the first degree. Code Sect. 18.2-31(7) ("willful,
deliberate, and premeditated killing of more than one person as a
part of the same act or transaction" constitutes capital
murder). Defendant contends that his murder of Bennett can rise
no higher than murder in the second degree because the
Commonwealth failed to prove he intended to kill Bennett. We
reject this contention.
As the Attorney General points out, the
evidence is undisputed that defendant deliberately shot Bennett
twice in the chest at extremely close range with a high-powered
assault rifle. In his confession, defendant stated not only that
he planned and carried out the attack with premeditation and
without any provocation, but also that he deliberately aimed his
weapon at the victims’ chests. This evidence establishes as a
matter of law that Bennett’s murder was intentional.
Next, defendant contends the trial court erred
in denying his motion to "preclude" the testimony of
Frank Darling’s wife in the penalty phase after she had testified
during the guilt phase of the trial. Defendant argues, "In
this instance," calling for the second time the murder
victim’s wife to give victim impact testimony violates "the
due process standard of fundamental fairness." We do not
Mrs. Darling was a front-seat passenger in the
automobile driven by her husband at the time of his murder. She
testified during the guilt phase about the events surrounding the
shootings. During the penalty phase, she testified only about the
substantial impact of her husband’s murder upon her life. This is
the type of victim impact testimony approved in Payne v. Tennessee,
501 U.S. 808, 827 (1991), and in Weeks, 248 Va. at 476,
450 S.E.2d at 389-90, and the trial court correctly refused to
Next, defendant contends the trial court erred
in failing to sustain his "motion to strike the evidence as
to vileness and future dangerousness," both of which issues
were submitted to the jury in proper instructions. The defendant
apparently does not argue the evidence was insufficient to
establish that Darling’s murder was vile, in that it involved
"depravity of mind or aggravated battery to the
victim," Code Sect. 19.2-264.4(C). He admitted during
oral argument there was "sufficient evidence to reach the
jury on the question of vileness." Instead, he argues:
"The trial court’s failure to strike the evidence as to
future dangerousness was a structural error that unfairly
prejudiced Kasi in the sentencing phase" because the
prosecutor’s argument in support of the future dangerousness
predicate (that defendant "would constitute a continuing
serious threat to society," id.) "may well have
made it easier to show ‘depravity of mind.’" There is no
merit to this contention.
There was sufficient evidence to submit to the
jury the issue of future dangerousness. Such a finding may be
based upon "the circumstances surrounding the commission of
the offense" of which defendant was accused. Id. And,
a jury may properly conclude, which this jury chose not to do,
that the circumstances of this heinous crime satisfy the future
dangerousness predicate in that defendant would "constitute
a continuing serious threat to society." Id. Hence,
because the issue of future dangerousness properly was submitted
to the jury, it becomes irrelevant whether the prosecutor’s
argument on that issue "may well have made it easier"
to show vileness.
Next, defendant contends the trial court erred
in denying his motion for a new trial because the prosecutor
allegedly failed to disclose that Mrs. Darling had been diagnosed
as having a post-traumatic stress disorder. The presentence
report revealed that, as the result of defendant’s murder of her
husband in her presence, she suffered from the disorder. In the
motion, defendant asserted the information concerning the
disorder, affecting one of the Commonwealth’s principal
witnesses, was "exculpatory," and that the prosecutor’s
failure to disclose it at trial violated Brady v. Maryland,
373 U.S. 83 (1963). The trial court correctly denied the motion
during a post-trial hearing.
The Commonwealth’s Attorney unequivocally
represented to the court that neither he nor any of the
investigating police officers had knowledge at the time of trial
"of the label that had been placed on this witness by a
doctor in Pennsylvania." The court accepted the
representation and found that no one connected with the
prosecution "knew of this event and there’s no evidence that
they did." Hence, there is no merit in defendant’s Brady
claim. The prosecution’s duty to disclose is limited to
information then known to it. See Robinson v. Commonwealth,
231 Va. 142, 155, 341 S.E.2d 159, 167 (1986).
Next, defendant contends the trial court erred
in certain rulings on jury matters made during and after the
trial. We already have ruled that several jury related issues
defendant raises are meritless, that is, the court’s refusal to
inquire of the jurors whether they engaged in premature
deliberations (assignment of error 31) and refusal to declare a
mistrial when the jury expressed concern about their personal
security (assignment of error 34).
During the morning of the second day of trial
in the penalty phase, and after the verdict in the guilt phase
had been announced, defendant advised the court there had been
press reports that morning of the killing of four Americans in
Karachi, Pakistan the preceding evening. Defendant then asked the
court to question the jurors individually to determine whether
any had heard or read the reports. The court declined the motion,
but continued its practice of asking the jurors at the beginning
of each day of trial whether they had followed the court’s
admonition not to read, look at, or listen to any reports about
the case. Juror 31 accidentally had heard a portion of a radio
report about the Karachi killings, but the court, upon
questioning her, determined she remained impartial and that none
of the other jurors were aware of the report.
The case proceeded for the remainder of the
morning with testimony of defendant’s mitigation witnesses. After
lunch, however, the trial court decided to sequester the jury for
the rest of the case. The court said the press reports of the
trial had degenerated into "opinion and speculation,"
noting that "the reporting has gotten crazy."
The court’s refusal to grant defendant’s
repeated motions for a mistrial during this series of trial
events was an exercise of the court’s sound discretion, and we
find no abuse of that discretion.
Next, defendant contends the trial court
erroneously denied permission for defendant to contact a juror
for questioning and to conduct an inquiry about the jury’s
deliberations. The issue arose against the following background.
Prior to trial, the court denied permission for
defendant to contact potential jurors. The names of the jurors
were not made public by agreement of counsel. At the beginning of
the penalty stage on November 11, the court entered an order
prohibiting the disclosure of "the name, address, identity
or image" of any juror after considering "the need to
protect jurors, the absolute right of jurors not to discuss the
case, and protection of the confidentiality of juror
On November 20, six days after the jury’s
sentencing verdict was rendered, a newspaper published an article
reporting information gleaned from an interview with one juror
about the penalty stage deliberations. The article quoted the
juror as stating, for example, that some jurors "thought the
crime was vile because Kasi, an immigrant, ‘had attacked the
American way of life.’" Also, the juror reportedly labeled
defendant a "terrorist," a term the court had
prohibited the participants from attaching to defendant during
the trial proceedings.
On January 6, 1998, defendant moved to set
aside the sentencing verdict, alleging juror misconduct on the
basis of the article. He also asked for permission to subpoena
the juror for interrogation. After a hearing, the trial court,
assuming the news article accurately reported the juror’s
statements, denied both motions. The court ruled that the
reported information "relates to the mental impressions of
the jury and the way that they deliberated and considered the
evidence." Hence, according to the court, inquiry of the
jury was not allowed. The trial court was correct.
Virginia has been more careful than most states
to protect the inviolability and secrecy of jury deliberations,
adhering to the general rule that the testimony of jurors should
not be received to impeach their verdict, especially on the
ground of their own misconduct. Jenkins, 244 Va. at 460,
423 S.E.2d at 370. Generally, we have limited findings of
prejudicial juror misconduct to activities of jurors that occur
outside the jury room. Id. Here, the alleged misconduct
clearly occurred within the confines of the jury room, and a
post-trial investigation into the allegations was unwarranted.
Finally, defendant contends the sentence of
death was imposed under the influence of passion, prejudice, or
other arbitrary factor, and that the death sentence was excessive
or disproportionate to the penalty imposed in similar cases.
While not directly addressing those issues, defendant asks the
Court to "commute this death sentence to life in prison
The defendant bases his plea for commutation on
an argument laced with hyperbole, and threats inappropriate in an
appellate brief. He reaches conclusions having absolutely no
foundation in this record. For example, he says the death
sentence resulted from the "open hostility" of the
trial judge and because the prosecutors "were diligent in
maligning the defense team repeatedly in the media." The
record shows otherwise. The trial court in all the proceedings
was thorough, even-handed, and considerate of all counsel, and
presided in a manner that was fair both to the Commonwealth and
the defendant. The Commonwealth’s Attorney was diligent,
well-prepared, and did not exceed the bounds of conduct expected
of an aggressive prosecutor.
The defendant says that because his crimes were
"political," he somehow is entitled to First Amendment
protection, and that his death sentence should be commuted to
avoid possible violent acts of reprisal. As the Attorney General
observes, defendant received the death sentence, not because he
had a political motive, but because he murdered two innocent men,
and maimed three others, in an extremely brutal and premeditated
manner. As the defendant moved among the stopped automobiles, he
shot through the rear window of the Darling vehicle, severely
wounding Darling in the torso. In a few seconds, defendant
appeared at the front of the Darling vehicle and fired at him
again, destroying a part of his head. Darling also suffered at
least one gunshot wound to his lower leg, resulting in a compound
fracture. There is nothing "arbitrary" about a death
sentence imposed under the circumstances of this case and, thus,
there is no basis for commutation.
In conducting our proportionality review, we
must determine "whether other sentencing bodies in this
jurisdiction generally impose the supreme penalty for comparable
or similar crimes, considering both the crime and the
defendant." Jenkins, 244 Va. at 461, 423 S.E.2d at
371. See former Code Sect. 17-110.1(C)(2) (now Sect.
17.1-313(C)(2)). We have examined our records of all
capital murder cases, see former Code Sect.
17-110.1(E) (now Sect. 17.1-313(E)), including those
cases where a life sentence was imposed. We have particularly
studied those cases in which the death penalty was based on the
vileness factor. See Cardwell v. Commonwealth,
248 Va. 501, 517, 450 S.E.2d 146, 156 (1994), cert. denied,
514 U.S. 1097 (1995).
Based upon this review, we conclude that
defendant’s death sentence is not excessive or disproportionate
to penalties generally imposed by sentencing bodies in the
Commonwealth for similar conduct. The death sentence generally is
imposed for a capital murder when, as here, the defendant is also
convicted of killing another person. Goins v. Commonwealth,
251 Va. 442, 469, 470 S.E.2d 114, 132, cert. denied,
519 U.S. 887 (1996).
Consequently, we hold the trial court committed
no reversible error, and we have independently determined from a
review of the entire record that the sentence of death was
properly assessed. Thus, we will affirm the trial court’s
Record No. 980797 Affirmed.
Record No. 980798 Affirmed.