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SWISHER v. COMMONWEALTH OF VA (59811)


SWISHER

v.

COMMONWEALTH OF VA


November 6, 1998
Record Nos. 980677 & 980678

BOBBY WAYNE SWISHER

v.

COMMONWEALTH OF VIRGINIA

Thomas H. Wood, Judge
Present: All the Justices

OPINION BY JUSTICE LEROY R. HASSELL, SR.
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY


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

I. PROCEEDINGS

On April 28, 1997, an Augusta County grand jury
indicted Swisher for the following offenses: capital murder of
Dawn McNees Snyder in the commission of abduction with the intent
to defile the victim of such abduction or in the commission of or
subsequent to rape or forcible sodomy in violation of Code
Sect. 18.2-31; abduction with intent to defile Snyder in
violation of Code Sect. 18.2-48; rape of Snyder in violation
of Code Sect. 18.2-61; and forcible sodomy of Snyder in
violation of Code Sect. 18.2-67.1.

Swisher was tried before a jury and found
guilty of the charged offenses. The jury fixed Swisher’s
punishment at life imprisonment for the abduction with intent to
defile conviction, life imprisonment for the rape conviction, and
life imprisonment for the forcible sodomy conviction. In the
penalty phase of the capital murder trial, the jury fixed
Swisher’s punishment at death, finding that he represented a
continuing serious threat to society and that his offense was
outrageously or wantonly vile, horrible, or inhuman in that it
involved torture, depravity of mind, or aggravated battery to the
victim. After considering a report prepared by a probation
officer pursuant to Code Sect. 19.2-264.5, the trial court
sentenced Swisher in accord with the jury verdicts.

We have consolidated the automatic review of
Swisher’s death sentence with his appeal of the capital murder
conviction. Former Code Sect. 17-110.1(F).
[1] Swisher’s appeal of his non-capital
convictions was certified from the Court of Appeals, former Code
Sect. 17-116.06, and was consolidated with his capital
murder appeal and given priority on our docket.

II. THE EVIDENCE

On February 5, 1997, Dawn McNees Snyder
disappeared from a florist shop where she worked in Stuarts Draft
in Augusta County. Her body was found on February 21, 1997, near
a riverbank about two miles from the florist shop. Animals had
eaten extensive portions of her face, neck, and upper chest, and
her identity was established by use of her dental records.

On February 22, 1997, the defendant, age 20,
was at an apartment with two friends, one of whom was Clarence
Henry Ridgeway, Jr. Swisher told Ridgeway that Swisher had
abducted, raped, sodomized, and killed Snyder. Swisher stated:
"You know the woman, Dawn Snyder . . . I killed
her." Swisher related the following details to Ridgeway.

On February 5, 1997, about 7:15 p.m., Swisher’s
uncle drove Swisher by car to a grocery store located near the
florist shop where Snyder worked. Swisher left the grocery store
and walked to the florist shop. Swisher entered the shop,
approached Snyder, and said, "I have a gun in my
pocket." Swisher showed Snyder a "butcher knife with
ridges" and directed her to go with him.

Swisher forced Snyder to leave the florist shop
through a rear door, and they walked for some distance until they
reached a field by the South River. Then, Swisher stopped Snyder
and told her to "suck his dick." He forced her to
perform an act of oral sodomy upon him, and he made her remove
her clothes. After he raped her, she put her clothes on, and he
forced her to perform another act of oral sodomy upon him.

Swisher decided to kill Snyder because she had
"seen his face." He "pulled out the butcher
knife" that had "ridges around the edge of the
blade," and he "slit her across the left side of the
face and was holding her; then slit her throat and then gouged
her and then tossed her into a river." He walked along the
riverbank, watching her in the river, asking her, "[a]re –
are you dead yet?" After Snyder floated in the river for
awhile, Swisher saw her "crawl up the bank." Then,
"he got scared and took off running straight to his house
from that field." Swisher threw his knife in the river.

When Swisher finished his confession to
Ridgeway, Swisher stated that "[i]t feels like [I] could do
it again." The following morning, Ridgeway informed the
Augusta County Sheriff’s Office of Swisher’s crimes.

On February 23, 1997, Sergeant William E.
Lemerise, Sergeant K.W. Reed, and two other deputies went to a
house where Swisher resided with his uncles, Paul H. Swisher and
William E. Swisher. Sergeant Reed advised Bobby Swisher that he
was a suspect in the murder of Dawn Snyder and asked if Swisher
would accompany the deputies to the Sheriff’s Office for
questioning. Swisher, who did not object, accompanied the
deputies. Sergeant Lemerise informed Swisher that he would be
required to wear handcuffs while en route to the Sheriff’s Office
because of a departmental policy which required that the
sheriff’s personnel transport suspects in restraints for safety
considerations. Lemerise told Swisher that he would have to wear
these restraints even though he was not under arrest.

When Swisher arrived at the Sheriff’s Office,
about 10:15 p.m., the handcuffs were immediately removed from
him, and he was taken to a "briefing room." The
briefing room is an open room with a coffee machine and a drink
machine. There are no bars on the windows or door locks in that
room. Swisher was permitted to smoke cigarettes, and he was given
coffee.

Sergeant Lemerise explained to Swisher that he
was not under arrest, that he was a suspect, that the sheriff’s
personnel were going to ask him some questions, and that he was
free to leave. Lemerise asked Swisher "how did he feel about
the fact that he could walk out of there if he chose to, words to
that effect . . . and [Swisher] appeared at that point
in time, although he was nervous . . . to be fine with
the situation."

Swisher spoke with the deputies, but did not
confess to the commission of any crimes until after he was
arrested and twice read his Miranda rights after midnight
on February 24. Swisher admitted, in an audiotaped confession,
that he had sodomized, raped, and murdered Snyder by cutting her
throat. He also stated that after he cut her throat, he threw her
into the South River.

Dr. David Oxley, a medical examiner who
performed an autopsy on Snyder’s body, was unable to render an
opinion about the specific cause of Snyder’s death. He did state,
however, that it was an inescapable conclusion that Snyder’s
death was the result of violent causes "probably related to
the neck." Dr. Oxley was not able to determine positively
whether the victim’s throat had been cut because animals had
eaten her larynx, trachea, and the large arteries and veins that
were in her neck. The highest concentration of blood on the
victim’s clothing appeared on a shirt around the neck area
extending onto the chest area.

Patricia Taylor, a forensic scientist in the
Forensic Biology Unit of the Western Regional Laboratory for the
Commonwealth of Virginia, qualified as an expert witness on the
subject of forensic DNA (deoxyribonucleic acid). She examined
some panties that were found on Snyder’s body. Her examination
revealed that DNA consistent with Swisher’s DNA was found in
semen deposited on Snyder’s panties. Taylor testified that the
odds of the DNA found on Snyder’s panties belonging to someone
other than Swisher were one in 380,000,000 in the Caucasian
population.

Spots of blood were found on Swisher’s coat.
Taylor testified that the DNA profile obtained from that coat is
consistent with the DNA profile of Snyder and different from the
DNA profile of Swisher. Taylor testified that the probability of
randomly selecting an individual unrelated to Snyder who had a
DNA profile consistent with the DNA on Swisher’s coat was
approximately one in 1.3 billion in the Caucasian population. Dr.
Taylor testified that the DNA profile obtained from spermatozoa
heads extracted from the victim’s stomach and esophagus were
consistent with Swisher’s DNA profile.

III. ASSIGNMENT OF ERROR PROCEDURALLY DEFAULTED

Swisher argues that the trial court erred in
denying his motion to "declare the Virginia capital murder
and death penalty statutes unconstitutional and to prohibit the
imposition of the death penalty." Swisher claims that
Virginia’s death penalty statutes, "specifically
. . . Code Sects. 19.2-2[6]4.2 through 19.2-264.5,
[and former Code Sects. 17-110.1 and 17-110.2] . . . on their face and as applied, violate the Eighth
Amendment prohibition against cruel and unusual punishment, the
Sixth Amendment guarantee to a fair trial, and the Fourteenth
Amendment guarantee that no person shall be deprived of life,
liberty, or property without due process of law." In support
of his contentions, Swisher merely refers this Court to a
memorandum of law that he filed in the trial court.

We hold that Swisher’s assertions are
insufficient and constitute a procedural default. "An
appellant who asserts that a trial court’s ruling was erroneous
has an obligation to state clearly to the appellate court the
grounds for that assertion. A cross-reference to arguments made
at trial is insufficient." Spencer v. Commonwealth,
240 Va. 78, 99, 393 S.E.2d 609, 622, cert. denied,
498 U.S. 908 (1990); Jenkins v. Commonwealth, 244
Va. 445, 460-61, 423 S.E.2d 360, 370 (1992), cert. denied,
507 U.S. 1036 (1993).

IV. ISSUES PREVIOUSLY DECIDED

Swisher raised certain issues on appeal which
have been decided adversely to his claims by our previous
decisions. We adhere to those rulings, and we will not discuss
them further. The issues previously resolved are:

(1) Whether the defendant should have been
granted additional preemptory challenges. See Strickler
v. Commonwealth, 241 Va. 482, 489, 404 S.E.2d 227, 232, cert.
denied, 502 U.S. 944 (1991); Quesinberry v. Commonwealth,
241 Va. 364, 371, 402 S.E.2d 218, 223 (1991), cert. denied,
502 U.S. 834 (1991); Spencer, 240 Va. at 84-85, 393 S.E.2d
at 613; Buchanan v. Commonwealth, 238 Va. 389, 405,
384 S.E.2d 757, 767 (1989), cert. denied, 493 U.S.
1063 (1990).

(2) Whether the trial court erred in denying
the defendant’s request to mail a questionnaire to the potential
jury venire. See Goins v. Commonwealth, 251
Va. 442, 454, 470 S.E.2d 114, 122, cert. denied,
519 U.S. 887 (1996); Strickler, 241 Va. at 489-90, 404
S.E.2d at 232.

V. BILL OF PARTICULARS

Swisher filed a motion for a bill of
particulars, requesting that the trial court enter an order
requiring the Commonwealth:

"a) To identify the grounds, and all of
them, on which it contends that defendant is guilty of Capital
Murder under . . . Code Sect. 18.2-31.

"b) To identify the evidence, and all of
it, upon which it intends to rely in seeking a conviction of
Defendant upon the charge of Capital Murder.

"c) To identify the aggravating factors,
if any, upon which it intends to rely in seeking the death
penalty, should defendant be convicted of Capital Murder.
Additionally:

"1) If the Commonwealth intends to prove
‘vileness’ as an aggravating factor, as set out in
. . . Code . . . Sect. 19.2-264.4C, to
identify as many of the components of the factor, including
torture, depravity of mind, and aggravated battery, on which it
intends to offer evidence.

"2) If the Commonwealth intends to prove
‘vileness’ as an aggravating factor, as set out in
. . . Code . . . Sect. 19.2-264.4C, to
further identify every narrowing construction of that factor on
which it intends to offer evidence.

"3) If the Commonwealth intends to prove
‘future dangerousness’ as an aggravating factor, as set out in
. . . Code . . . Sect. 19.2-264.4C and
pursuant to . . . Code . . .
Sect. 19.2-264.3:2, to identify any unadjudicated
allegations of misconduct by defendant upon which it intends to
offer evidence and any circumstances of the offense it contends
are relevant to proof of the factor.

"4) If the Commonwealth intends to prove
‘future dangerousness’ as an aggravating factor, as set out in
. . . Code . . . Sect. 19.2-264.4C and
pursuant to . . . Code . . .
Sect. 19.2-264.3:2, to further identify every narrowing
construction of that factor on which it intends to offer
evidence.

"d) To identify the evidence, and all of
it, on which it intends to rely in support of the aggravating
factors identified, and all other evidence which it intends to
introduce in support of its contention that death is the
appropriate punishment for this Defendant."

Swisher essentially contends that the
Commonwealth should have been required to identify its evidence
so that he could have made pretrial challenges to the application
of Virginia’s capital murder statute. Swisher also asserts that
the aforementioned bill of particulars was needed to: insure that
he would have effective assistance of counsel as guaranteed by
the Sixth Amendment; assist him in challenging the suppression of
certain evidence and; assist him in challenging the
constitutionality of the vileness and future dangerousness
factors in Code Sect. 19.2-264.4, one of which must be
established before the death penalty may be imposed. We disagree
with Swisher.

"The purpose of a bill of particulars is
to state sufficient facts regarding the crime to inform an
accused in advance of the offense for which he is to be tried. He
is entitled to no more." Hevener v. Commonwealth,
189 Va. 802, 814, 54 S.E.2d 893, 899 (1949); accord Goins,
251 Va. at 454, 470 S.E.2d at 123; Quesinberry, 241 Va. at
372, 402 S.E.2d at 223, Strickler, 241 Va. at 490-91, 404
S.E.2d at 233. A defendant is not entitled to a bill of
particulars as a matter of right. Quesinberry, 241 Va. at
372, 402 S.E.2d at 223. Rather, Code Sect. 19.2-230 states
that a trial court "may direct the filing of a bill of
particulars."

The trial court’s decision whether to require
the Commonwealth to file a bill of particulars is a matter that
rests within its sound discretion. Goins, 251 Va. at 454,
470 S.E.2d at 123; Quesinberry, 241 Va. at 372, 402 S.E.2d
at 223. The trial court did not abuse its discretion in denying
Swisher’s motion. The indictment adequately informed Swisher of
the charged offenses, and we are of opinion Swisher did not wish
to use the bill to challenge the sufficiency of the indictment,
but, as he has admitted in his brief, he desired the bill of
particulars for other reasons.

Furthermore, Paragraphs B and D are simply
demands for pre-trial disclosure of the Commonwealth’s evidence
to be introduced at trial and, as we have held, there is no
general constitutional right to discovery in a criminal case,
even when a capital offense is charged. See Strickler,
241 Va. at 490-91, 404 S.E.2d at 233. We do note that the
Commonwealth, as required by Code Sect. 19.2-264.3:2,
provided Swisher with evidence of unadjudicated conduct that the
Commonwealth planned to use to establish his future
dangerousness, and Swisher does not claim that such information
was not given to him. Moreover, as the trial court observed,
Swisher was aware, well before trial, of the entirety of the
Commonwealth’s evidence through the Commonwealth’s undisputed
open file policy.

VI. DEFENDANT’S MOTIONS TO SUPPRESS

A.

Swisher filed a motion to suppress a confession
that he made to the deputies after he had been given his Miranda
warnings, and the trial court denied the motion. On appeal,
Swisher contends that his confessions were "made at a time
when he had not been advised of his rights to remain silent and
his right to counsel and were not made within the guidelines of
the standards set forth in Miranda v. Arizona, 384
U.S. 436 (1966)." We disagree with Swisher.

In Miranda, the Supreme Court held that
an individual must be warned before questioning by police of his
right to remain silent and his right to an attorney only when
that "individual is taken into custody or otherwise deprived
of his freedom by the authorities in any significant way and is
subjected to questioning. . . ." Id.
at 478. The Supreme Court subsequently explained in Oregon
v. Mathiason, 429 U.S. 492, 495 (1977), that Miranda
warnings are implicated only during a custodial interrogation:

"Any interview of one suspected of a crime
by a police officer will have coercive aspects to it, simply by
virtue of the fact that the police officer is part of a law
enforcement system which may ultimately cause the suspect to be
charged with a crime. But police officers are not required to
administer Miranda warnings to everyone whom they
question. Nor is the requirement of warnings to be imposed simply
because the questioning takes place in the station house, or
because the questioned person is one whom the police suspect. Miranda
warnings are required only where there has been such a
restriction on a person’s freedom as to render him ‘in custody.’
It was that sort of coercive environment to which Miranda
by its terms was made applicable, and to which it is
limited."

We have also observed that Miranda
warnings are not required in every instance when a suspect is
interrogated at a police office. Coleman v. Commonwealth,
226 Va. 31, 47, 307 S.E.2d 864, 872 (1983), cert. denied,
465 U.S. 1109 (1984). We have stated that "[i]t is the
custodial nature rather than the location of the interrogation
that triggers the necessity for giving Miranda
warnings." Id. at 47, 307 S.E.2d at 872; accord
Burket v. Commonwealth, 248 Va. 596, 605, 450
S.E.2d 124, 129 (1994), cert. denied, 514 U.S. 1053
(1995); see Beckwith v. United States, 425
U.S. 341, 346 (1976).

Applying these principles, we hold that the
deputies did not violate Swisher’s Miranda rights.
Initially, we note that Swisher did not make any incriminating
statements between the time he left his uncles’ house and the
time he was placed under arrest at 12:05 a.m. on February 24.
Before Swisher was arrested, the deputies informed him that he
was free to leave the Sheriff’s Office. After Swisher was
arrested, he was informed of his Miranda rights twice. The
record reveals that his confession was made knowingly,
voluntarily, and intelligently, Miranda, 384 U.S. at 475,
and that his confession was "the product of an essentially
free and unconstrained choice by its maker." Schneckloth
v. Bustamonte, 412 U.S. 218, 225 (1973); accord Roach
v. Commonwealth, 251 Va. 324, 340-41, 468 S.E.2d 98, 108, cert.
denied, 519 U.S. 951 (1996).

B.

Swisher filed a motion to suppress "all
evidence, oral and physical, including any statements made by
[him], whether prior to or subsequent to his arrest, and any
property seized as a result of the arrest, detention or
interrogation of [him]" and any property "seized by a
warrantless search of the premises occupied by [him], and any
property or goods seized by virtue of the search warrant for
[his] body, which warrant was issued . . . on [February
25, 1997]."

Swisher contends that: his arrest was illegal;
the deputies unlawfully searched and seized certain items from
the house where he lived and; the deputies unlawfully searched
his person by obtaining pubic hair, head hair, and blood.

When the deputies went to Swisher’s uncles’
house, they knocked on the door, and one of Swisher’s uncles
permitted the deputies to enter. As we have already stated, the
deputies asked Swisher to accompany them to the Sheriff’s Office,
and he voluntarily agreed to do so. As Swisher was about to leave
the house, one of the deputies asked Swisher if he would like to
take a jacket with him because it was cold outside. A deputy
helped Swisher put the jacket on.

At the Sheriff’s Office, Sergeant A.C. Powers
noticed a few dark spots on Swisher’s jacket, and he asked
Swisher for permission to test the jacket to determine whether
the spots were blood. Swisher replied, "[t]hat’s all right
with me, because I don’t know nothing about what you’re talking
about." When the test showed that blood was present on the
jacket, Sergeant Lemerise asked Swisher for permission to send
the jacket to a forensic laboratory for further testing and
Swisher agreed.

While Swisher was still at the Sheriff’s
Office, some of the deputies asked one of Swisher’s uncles for
permission to search two large "burn barrels" which
were on the uncles’ property. The uncle gave the deputies
permission to search, and they recovered several items from the
barrels, including burned sneakers and a green shirt.

On February 24, 1997, some deputies returned to
Swisher’s uncles’ house and asked William Swisher for permission
to search the premises. The deputies gave William Swisher a
consent form and told him that he did not have to consent to a
search. William Swisher gave the deputies permission to search,
and he signed the consent form.

We hold that the trial court did not err in
denying the defendant’s motion to suppress the evidence because
the defendant’s uncles gave the deputies consent to search the
house and the "burn barrels." We also note that none of
the items taken from the consensual search of the "burn
barrels" was admitted in evidence at Swisher’s trial.

Additionally, the trial court did not err in
refusing the defendant’s motion to suppress the jacket. Swisher
gave the deputies consent to test his jacket. The evidence of
record supports the trial court’s finding that in each instance,
Swisher’s consent was voluntary. See Gray v. Commonwealth,
233 Va. 313, 327, 356 S.E.2d 157, 164, cert. denied,
484 U.S. 873 (1987).

We do not consider Swisher’s conclusional
statement that his arrest was illegal and, therefore, his pubic
hairs, head hairs, and blood were illegally seized. Swisher does
not assign as error that he was subject to an illegal arrest.
Thus, this argument is beyond the scope of any assignment of
error, and it is procedurally defaulted. Rule 5:17(c); Burket,
248 Va. at 613, 450 S.E.2d at 133.

VII. VENUE

Swisher argues that the trial court erred in
denying his motion for a change of venue because the media
coverage of his crime was purportedly inflammatory and contained
information regarding his confession. Swisher asserts that these
aspects of the media coverage required a change of venue in order
to protect the rights afforded him under the Sixth Amendment of
the United States Constitution. We disagree.

There is a presumption that a defendant can
receive a fair trial from the citizens of the jurisdiction where
the crimes occurred. The defendant must overcome this presumption
by demonstrating that the feeling of prejudice on the part of the
citizenry is widespread and is such that would "be
reasonably certain to prevent a fair trial." Mueller
v. Commonwealth, 244 Va. 386, 398, 422 S.E.2d 380, 388
(1992), cert. denied, 507 U.S. 1043 (1993) (quoting
Stockton v. Commonwealth, 227 Va. 124, 137, 314
S.E.2d 371, 380, cert. denied, 469 U.S. 873 (1984)
(citation omitted)). The decision whether to grant a change of
venue rests within the sound discretion of the trial court. Roach,
251 Va. at 342, 468 S.E.2d at 109. The trial court’s ruling
whether to change venue will not be disturbed on appeal unless
the record affirmatively shows an abuse of discretion. Mueller,
244 Va. at 398, 422 S.E.2d at 388.

Extensive media coverage about an accused and
his crimes does not necessarily require a change of venue. Buchanan,
238 Va. at 407, 384 S.E.2d at 767-68. Additionally, a significant
factor that the trial court must consider is "the difficulty
encountered in selecting a jury." Mueller, 244 Va. at
398, 422 S.E.2d at 388.

Swisher did not overcome the presumption that
he could receive a fair trial in Augusta County, and the evidence
of record does not affirmatively show that the trial court abused
its discretion. Our review of the record reveals that the trial
court was able to empanel a jury with relative ease. Swisher does
not challenge on the appeal the seating of any juror on the basis
of pre-trial publicity. Thus, the trial court did not abuse its
discretion in denying Swisher’s motion for a change of venue.

VIII. VOIR DIRE

Swisher argues that the trial court erred in
refusing to permit him to ask certain questions to the jury panel
during voir dire. Swisher says that because his
trial was extensively covered by the media, he should have been
permitted to ask a wide range of questions to potential jurors.
We disagree with Swisher’s contentions.

As we stated in LeVasseur v. Commonwealth,
225 Va. 564, 581, 304 S.E.2d 644, 653 (1983), cert. denied,
464 U.S. 1063 (1984), "[a] party has no right, statutory or
otherwise, to propound any question he wishes, or to extend voir
dire questioning ad infinitum. The court
must afford a party a full and fair opportunity to ascertain
whether prospective jurors ‘stand indifferent in the cause,’ but
the trial judge retains the discretion to determine when the
parties have had sufficient opportunity to do so." Swisher
fails to identify any questions that the trial court prohibited.
Swisher’s conclusional contention does not specify how the trial
court abused its discretion, and he fails to demonstrate how he
was prejudiced by the trial court’s rulings.

IX. DEFENDANT’S MOTION TO DISMISS THE
INDICTMENT

Swisher asserts that the trial court erred by
denying his motion to dismiss the indictment charging him with
capital murder under Code Sect. 18.2-31(1), which states in
relevant part:

"The following offenses shall constitute
capital murder, punishable as a Class 1 felony:
1. The willful, deliberate, and premeditated killing of any
person in the commission of abduction, as defined in
Sect. 18.2-48, when such abduction was committed with the
intent to extort money or a pecuniary benefit or with the intent
to defile the victim of such abduction;"

Swisher claims that the term intent "to
defile" fails to inform "a defendant or any person of
ordinary intelligence of what conduct makes him eligible for a
death sentence through commission of capital murder."
Continuing, Swisher says that the term intent "to
defile" does not provide sufficient guidance to the jury as
it considers whether to impose the sentence of death. Swisher
claims that these purported statutory deficiencies contravene his
constitutional rights under the Eighth and Fourteenth Amendments
of the United States Constitution.

We find no merit in Swisher’s contentions. An
act which creates a statutory offense "must specify with
reasonable certainty and definiteness the conduct which is
commanded or prohibited . . . so that a person of
ordinary intelligence may know what is thereby required of
him." Caldwell v. Commonwealth, 198 Va. 454,
458, 94 S.E.2d 537, 540 (1956); McCutcheon v. Commonwealth,
224 Va. 30, 35, 294 S.E.2d 808, 811 (1982). We have stated that
the phrase intent "to defile" is interchangeable,
within the meaning of Code Sect. 18.2-48, with the phrase
"sexually molest." Scott v. Commonwealth,
228 Va. 519, 525 n.2, 323 S.E.2d 572, 576 n.2 (1984); see Wilson
v. Commonwealth, 249 Va. 95, 103-04, 452 S.E.2d 669, 675, cert.
denied, 516 U.S. 841 (1995). We are of the opinion that a
person of ordinary intelligence would also conclude that the term
intent "to defile" is interchangeable with the phrase
intent to "sexually molest." Thus, we hold that the
indictment adequately informed Swisher of the charges against him
and that the jury would have concluded that the term intent
"to defile" was synonymous with the phrase intent to
"sexually molest."

X. ADMISSIBILITY OF EVIDENCE

As we have already stated, Patricia Taylor
testified as an expert witness on the subject of DNA on behalf of
the Commonwealth. During her direct examination, Taylor testified
that the DNA profile obtained from sperm found in Snyder’s
rectum, vagina, esophagus, and stomach was consistent with the
mixture of DNA profiles of Swisher and Snyder, that sperm found
on the crotch of Snyder’s panties was consistent with Swisher’s
DNA, and that blood found on Swisher’s coat was consistent with
the DNA profile of Snyder.

During cross-examination, Swisher attempted to
examine Taylor about "genetic material" found on a
pillowcase which had not been admitted in evidence. The
Commonwealth objected to the defendant’s questions about the
pillowcase on the basis that the pillowcase had not been admitted
in evidence, and the pillowcase was not relevant to any issues at
trial. The trial court gave Swisher’s counsel several
opportunities to explain to the court the relevance of the
pillowcase. The trial court ruled that Swisher’s questions about
the pillowcase were not relevant because the pillowcase had not
been admitted in evidence, no chain of custody had been
established which would permit the admission of the pillowcase in
evidence, and testimony about the pillowcase would only be
confusing to the jury.

The decision to refuse or admit evidence based
on relevance rests within the discretion of the trial court, Beck
v. Commonwealth, 253 Va. 373, 384-85, 484 S.E.2d 898, 905,
cert. denied, ___ U.S. ___, 118 S.Ct. 608 (1997),
and we hold that the trial court did not abuse its discretion.
Indeed, Swisher’s counsel was unable to demonstrate either in the
trial court or on brief why the questions about the pillowcase
were relevant to any issues at trial.

XI. JURY INSTRUCTIONS

Swisher proffered the following jury
instructions which were refused by the trial court:

"INSTRUCTION NO. R-1

"If you find that the defendant was so
greatly intoxicated by the voluntary use of alcohol and drugs
that he was incapable of deliberating or premeditating, then you
cannot find him guilty of capital murder or murder in the first
degree.

"Voluntary intoxication is not a defense
to second degree murder or manslaughter."

"INSTRUCTION NO. Q

"You have been instructed on more than one
grade of homicide and if you have a reasonable doubt as to the
grade of the offense, then you must resolve that doubt in favor
of the defendant, and find him guilty of the lesser
offense."

"For example, if you have a reasonable
doubt as to whether he is guilty of capital murder or first
degree murder, you shall find him guilty of first degree murder.
If you have a reasonable doubt as to whether he is guilty of
first degree murder or second degree murder, you shall find him
guilty of second degree murder or of voluntary manslaughter. If
you have a reasonable doubt as to whether he is guilty at all,
you shall find him not guilty."

Swisher, who stated in his confession to the
deputies that he had consumed crack cocaine and alcohol on the
day of the murder, argues that the trial court erred by refusing
to grant Instruction R-1. Swisher says that the trial court erred
by refusing to grant Instruction Q because "the evidence was
that [he] was on crack cocaine and one of the effects of the drug
is that it inflames the passions of the user."

Swisher’s assertions are without merit.
Generally, voluntary intoxication is not an excuse for any crime.
Wright v. Commonwealth, 234 Va. 627, 629, 363
S.E.2d 711, 712 (1988). We have stated that the only exception to
this general rule is in cases involving deliberate and
premeditated murder. Id. Even though it has long been the
rule in this Commonwealth that a defendant may negate the
specific intent requisite for capital murder or first degree
murder by showing that he was so greatly intoxicated that he was
incapable of deliberation or premeditation, Essex v. Commonwealth,
228 Va. 273, 281-82, 322 S.E.2d 216, 219-20 (1984); Fitzgerald,
223 Va. at 631, 292 S.E.2d at 807; Giarratano v. Commonwealth,
220 Va. 1064, 1073, 266 S.E.2d 94, 99 (1980), "[v]oluntary
immediate drunkenness is not admissible to disprove malice or
[to] reduce the offense to manslaughter." Johnson v. Commonwealth,
135 Va. 524, 531, 115 S.E. 673, 676 (1923) (quoting Willis
v. Commonwealth, 73 Va. (32 Gratt.) 929, 926 (1879)).

We hold that the trial court properly refused
the defendant’s proposed instructions because these instructions
contained incorrect statements of the law. The proposed
instructions would have permitted the jury to find the defendant
guilty of manslaughter because of his purported voluntary
intoxication, which is contrary to the common law of this
Commonwealth.

XII. SENTENCE REVIEW

Former Code Sect. 17-110.1(C)(2) requires
this Court to review the imposition of the sentence of death
imposed upon Swisher, based on the trial record, to determine
whether (i) the sentence was imposed under the influence of
passion, prejudice, or any other arbitrary factor, or (ii) the
sentence is excessive or disproportionate to the penalty imposed
in similar cases, considering both the crime and the defendant.
We observe that Swisher does not contend that the death penalty
was imposed under the influence of any of the above factors
prohibited by the statute, nor does he contend that the sentence
is excessive or disproportionate to the penalty imposed in
similar cases. Nevertheless, we have examined the records of all
capital cases reviewed by this court, pursuant to former Code
Sect. 17-110.1(E). See Barnabei v. Commonwealth,
252 Va. 161, 179-80, 477 S.E.2d 270, 281 (1996), cert. denied,
__ U.S. __, 117 S.Ct. 1724 (1997); Breard v. Commonwealth,
248 Va. 68, 89, 445 S.E.2d 670, 682, cert. denied,
513 U.S. 971 (1994).

Upon review of these cases, as well as cases in
which life imprisonment was imposed, we hold that Swisher’s
sentence of death is neither excessive nor disproportionate to
sentences generally imposed by other sentencing bodies in
Virginia for crimes of a similar nature. Furthermore, based upon
our review of the record, we find nothing that suggests that
Swisher’s sentence of death was imposed under the influence of
passion, prejudice, or any other arbitrary factor.

XIII. CONCLUSION

We find no reversible error in the issues
presented here. Having reviewed all Swisher’s contentions and the
imposition of Swisher’s sentence of death pursuant to former Code
Sect. 17-110.1, we hold that the conviction of capital
murder and sentence of death will be affirmed, and we will also
affirm the judgments entered for Swisher’s non-capital
convictions.

Record No. 980677 – Affirmed.
Record No. 980678 – Affirmed.

 

FOOTNOTES:

[1] Effective October 1, 1998, Title 17
was superseded by Title 17.1. As this appeal was briefed and
argued prior to the effective date of Code Sect. 17.1-313,
our review was conducted pursuant to otherwise identical
provisions of the formerly applicable Code sections.

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