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WALKER v. COMMONWEALTH


WALKER

v.

COMMONWEALTH


June 11, 1999

Record Nos. 990096 & 990097

DARICK DEMORRIS WALKER

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

James B. Wilkinson, Judge

Present: All the Justices

OPINION BY JUSTICE ELIZABETH B. LACY


Darick Demorris Walker was indicted for the capital murder of
Stanley Roger Beale and Clarence Threat within a three-year
period, Code Sect. 18.2-31(8), for four counts of the use of
a firearm in the commission of a felony, Code
Sect. 18.2-53.1, and for two counts of burglary, Code
Sect. 18.2-90. He was convicted of all offenses by a jury.
After hearing evidence on the issue of punishment, the jury fixed
the punishment for the capital offense at death based upon the
vileness and future dangerousness predicates, life imprisonment
on each of the burglaries, and a total of 18 years imprisonment
for the firearms offenses. The trial court, after considering the
sentencing report of a probation officer, sentenced Walker in
accord with the jury verdicts. Walker appealed his capital murder
conviction, Record No. 990096. We have certified Walker’s appeal
of his non-capital murder convictions from the Court of Appeals,
Record No. 990097, and have consolidated the two appeals.

I. Evidence

Applying familiar principles, we recite the facts in the light
most favorable to the Commonwealth, the party prevailing below. See
Horton v. Commonwealth, 255 Va. 606, 609, 499 S.E.2d 258,
259 (1998).

A. Stanley Beale

Catherine Taylor and her children, Monique, Bianca, and
Sidney, lived in the University Terrace Apartments with Stanley
Beale, the children’s father. On the evening of November 22,
1996, Taylor heard "a boom like noise" in the living
room. Taylor left the bedroom where she had been with Sidney, an
infant, and as she entered the living room, she saw a man kick in
the locked front door. Taylor later identified the man as Walker.
Walker was holding a gun yelling, "Where is he?" Walker
continued yelling, asking Beale "what you keep coming up to
my door, what you looking for me for?" Beale, who was
standing in the doorway to the kitchen, answered that he did not
know Walker and did not know where Walker lived. Bianca, who was
13 years old at the time, shouted at Walker that her father did
not know him. Walker began shooting at Beale as Taylor ushered
Bianca and Monique into the bathroom to hide in the bathtub.
Walker shot Beale three times, killing him.

Bianca testified that she knew Walker as "Todd" and
subsequently identified Walker in a photo line-up as the person
who killed her father. Tameria Patterson, a fourteen-year-old
girl who was visiting a friend who lived in the University
Terrace Apartments, testified that on the night of the murder,
she saw a man she knew as "Todd" enter her friend’s
apartment and say "I shot him." When shown a photo
spread, Tameria identified Walker as the person who had entered
the apartment.

B. Clarence Threat

On the night of June 18, 1997, Andrea Noble and Clarence
Threat were sleeping in their bedroom when they were awakened by
a "pop" coming from the screen door, followed by a
knock at the door. Noble went to the door and looked outside
through a small window in the door, but did not see anyone. On
two subsequent occasions she again heard a knock and went to the
door, but did not see anyone. Sometime after the third knock, the
door was "kicked open." Noble went to the living room
and saw a person she knew as "Paul" standing with a
gun. "Paul" pointed the gun at Noble as she backed into
the bedroom. When they reached the bedroom, "Paul" hit
Noble with the back of the gun and then shot Threat in the leg.
In the bedroom, "Paul" and Threat exchanged words and
"Paul" shot Threat again. Threat sustained a total of
seven gunshot wounds. He died as a result of a gunshot wound to
the chest. The shooter told Noble that if she told anyone
"he would come back and kill [her] and [her] kids." At
trial, Noble identified Walker as the person she knew as
"Paul."

II. Constitutionality of Virginia’s

Death Penalty Statutes

In his first assignment of error, Walker asserts that
Virginia’s death penalty statutes, Code Sects. 19.2-264.2 to
-264.5, and 17.1-313, are unconstitutional. Specifically, he
argues that the aggravating factors which the jury must consider
to impose the death penalty are unconstitutionally vague, and
that the failure to provide jury instructions regarding the
meaning of those terms or to properly inform and instruct the
jury on the consideration of mitigation evidence violates the
Eighth and Fourteenth Amendments to the United States
Constitution and Sections 9 and 11 of Article I of the Virginia
Constitution. We have previously considered and rejected these
contentions, and Walker presents no basis for altering our prior
decisions. See M. Smith v. Commonwealth, 219 Va.
455, 476-77, 248 S.E.2d 135, 148 (1978), cert. denied,
441 U.S. 967 (1979)(rejecting contention that
"vileness" and "future dangerousness"
predicates for imposition of the death penalty unconstitutionally
fail to guide the jury’s discretion); Watkins v. Commonwealth,
229 Va. 469, 490-91, 331 S.E.2d 422, 438 (1985), cert. denied,
475 U.S. 1099 (1986)(Constitution requires only that jury be
instructed to consider mitigating evidence.)

Walker also asserts that the death penalty statutes are
unconstitutional because they do not require the trial court to
set aside a sentence of death upon a showing of good cause, they
allow the trial court to consider hearsay evidence in the
post-hearing sentence report, and the review conducted by this
Court is inconsistent with the requirements of the Eighth
Amendment. These assertions have previously been rejected in Breard
v. Commonwealth
, 248 Va. 68, 76, 445 S.E.2d 670, 675, cert.
denied, 513 U.S. 971 (1994); O’Dell v. Commonwealth,
234 Va. 672, 701-02, 364 S.E.2d 491, 507-08, cert. denied,
488 U.S. 871 (1988); R. Smith v. Commonwealth, 239 Va.
243, 253, 389 S.E.2d 871, 876, cert. denied, 498
U.S. 881 (1990), respectively, and Walker fails to advance any
reason to depart from these decisions.

III. Request for a Bill of Particulars

Walker next assigns error to the trial court’s denial of his
request for a bill of particulars. He contends that the
information he requested was necessary to ensure his Sixth
Amendment right to effective assistance of counsel, and that the
lack of such information undermines the "greater degree of
reliability" that due process requires in death penalty
cases. In his request for a bill of particulars, Walker
sought identification of the grounds for the capital murder
charge and the evidence upon which the Commonwealth would rely to
prove the charge. He further requested the Commonwealth to
identify and provide a "narrowing construction" of the
aggravating factors upon which it intended to rely in seeking the
death penalty as well as the evidence it intended to use in
support of the aggravating factors.

The Commonwealth responded to Walker’s request by reciting the
grounds upon which it believed Walker was guilty of capital
murder. The Commonwealth further stated that, if Walker was
convicted of capital murder, it would seek the death penalty
based on the aggravating factors of "vileness" and
"future dangerousness." The Commonwealth stated that,
to prove "vileness," it would rely on the depravity of
mind and aggravated battery components provided in Code
Sect. 19.2-264(C). Finally, the Commonwealth informed Walker
that in proving "future dangerousness," it would rely
on Walker’s adult and juvenile criminal record, the circumstances
of the commission of the current offenses, Walker’s lack of
remorse, and evidence of other crimes whether adjudicated or
unadjudicated.

The information requested by Walker is virtually identical to
that requested by the defendant in Strickler v. Commonwealth,
241 Va. 482, 404 S.E.2d 227, cert. denied, 502 U.S.
944 (1991). In Strickler, we held that where the
indictment is sufficient, i.e., gives the accused "notice of
the nature and character of the offense charged so he can make
his defense," a bill of particulars is not required. Id.
at 490, 404 S.E.2d at 233 (quoting Wilder v. Commonwealth,
217 Va. 145, 147, 225 S.E.2d 411, 413 (1976)).

Here, there is no challenge to the sufficiency of the
indictment. As in Strickler, those parts of Walker’s
request for a bill of particulars seeking disclosure of the
evidence upon which the Commonwealth intended to rely in the
guilt and sentencing phases of the trial "are sweeping
demands for pretrial disclosure of all the Commonwealth’s
evidence." 241 Va. at 490, 404 S.E.2d at 233.

However, "[t]here is no general constitutional right to
discovery in a criminal case, even where a capital offense is
charged." Id. at 490-91, 404 S.E.2d at 233. Walker,
like the defendant in Strickler, received all the
information to which he was entitled. Furthermore, whether to
require the Commonwealth to file a bill of particulars is a
matter that falls within the sound discretion of the trial court,
Goins v. Commonwealth, 251 Va. 442, 454, 470 S.E.2d 114,
123, cert. denied, 519 U.S. 887 (1996), and Walker
has not demonstrated an abuse of that discretion.

Accordingly, we conclude that the trial court did not err in
denying Walker’s request for a bill of particulars in this case.

IV. Motion for Discovery and Inspection

Walker assigns error to the trial court’s denial of his motion
for discovery and inspection. He admits that the Commonwealth
provided him with all discovery and inspection to which he was
entitled under state statutes and Rules of Court, and he does not
assert that the Commonwealth improperly withheld any exculpatory
information. Instead, Walker argues that the trial court
erroneously refused to extend the Commonwealth’s duty to disclose
exculpatory evidence imposed by Brady v. Maryland, 373
U.S. 83 (1963), and to require the Commonwealth to disclose
"all evidence, information and all other materials which the
Commonwealth intended to offer to establish the guilt of the
appellant . . . ." Walker argues that such
extension is required to ensure the defendant’s right to
effective assistance of counsel and to meet the due process
requirement of reliability in the determination that the death
penalty is the appropriate punishment. We disagree.

Neither the holding in Brady nor principles of due
process impose any requirement on the Commonwealth to provide the
information sought by Walker beyond that which is exculpatory. United
States v. Agurs
, 427 U.S. 97, 109 (1976); see Spencer
v. Commonwealth
, 238 Va. 295, 303, 384 S.E.2d 785, 791
(1989), cert. denied, 493 U.S. 1093 (1990). We do
not find anything in Walker’s arguments to warrant the extension
of the holding in Brady he suggests. Because the
Commonwealth provided Walker all the discovery to which he was
entitled, we find no error in the denial of his motion for
discovery and inspection.

V. Additional Peremptory Challenges

Walker asserts that a defendant is entitled to additional
peremptory challenges to "ensure rights guaranteed by the
Sixth, Eighth and Fourteenth Amendments to the Constitution of
the United States," and suggests that because a number of
states and federal courts have allowed additional peremptory
strikes the trial court erred in denying his request for
additional strikes.

However, a criminal defendant has no constitutional right to
peremptory challenges. Mu’Min v. Virginia, 500 U.S. 415,
424-25 (1991). And, as we have said on numerous previous
occasions, there is no provision in Virginia law for granting
such additional peremptory strikes. Strickler, 241 Va. at
489, 404 S.E.2d at 232; Spencer v. Commonwealth, 240 Va.
78, 84-85, 393 S.E.2d 609, 613, cert. denied, 498
U.S. 908 (1990); see Code Sect. 19.2-262. Walker has
presented no reason for us to alter our previous rulings.

VI. Evidence of Unadjudicated Criminal
Behavior

On August 10, 17, and 18, 1998, pursuant to Code
Sect. 19.2-265.3:2, the Commonwealth filed notices of its
intent to present evidence of unadjudicated criminal conduct of
the defendant at the sentencing phase of the trial. Walker
asserts that admission of this evidence was error on three
primary grounds: (1) without a positive connection of the
evidence to the defendant by some standard of proof, the evidence
does not meet the test of relevancy; (2) due process requires
proof of unadjudicated prior criminal acts beyond a reasonable
doubt when such conduct is relied upon to expose the defendant to
greater or additional punishment; and (3) the use of
unadjudicated criminal acts evidence denies the defendant his due
process rights to notice and a meaningful opportunity to be heard
on evidence used against him which also results in denial of the
defendant’s Sixth Amendment right to effective assistance of
counsel. We reject all three of these arguments for the reasons
discussed below.

First, we have previously held that evidence of prior violent
criminal conduct, whether or not adjudicated, is relevant to the
determination of a defendant’s future dangerousness because it
has a tendency to show that the accused would commit criminal
acts of violence in the future. Pruett v. Commonwealth,
232 Va. 266, 284-85, 351 S.E.2d 1, 11-12 (1986), cert. denied,
482 U.S. 931 (1987). Whether the evidence produced establishes
the ultimate fact at issue must, of course, be tested by some
standard of proof. Here, the ultimate issue of fact was Walker’s
"future dangerousness," which the Commonwealth was
required to prove beyond a reasonable doubt. Walker cites no
authority for the proposition that each piece of evidence offered
to prove the ultimate issue of fact must itself also be tested by
some standard of proof. Rather, that evidence is tested by the
credibility or weight the fact finder chooses to give it. See
Gray v. Commonwealth, 233 Va. 313, 346-47, 356 S.E.2d 157,
175-76, cert. denied, 484 U.S. 873 (1987).
Therefore, we reject Walker’s assertion that the evidence of
unadjudicated criminal acts did not meet the test of relevancy
because that evidence was not established by any standard of
proof.

Next Walker relies on and quotes from McMillan v.
Pennsylvania
, 477 U.S. 79 (1986), for the proposition that
evidence of unadjudicated criminal conduct is subject to the
reasonable doubt standard of evidence in the sentencing phase of
a capital murder trial because it "expose[s]" the
defendant to greater punishment and presents a "radically
different situation from the usual sentencing procedures."

The Supreme Court in McMillan considered whether due
process was offended by a statute which raised the minimum
sentence if the trial court in the sentencing phase found that a
defendant had "visibly possessed a firearm" in the
commission of the charged offense. The trial court’s finding did
not have to be beyond a reasonable doubt. The defendant in that
case argued that the evidentiary standard of beyond a reasonable
doubt was required because visible possession of a firearm was,
in effect, an element of the offense. He argued further that even
if it was not an element of the offense, due process required
application of the reasonable doubt standard because a finding of
visible possession subjected the defendant to a greater penalty.
The Supreme Court disagreed, concluding that visible possession
of a firearm was not an element of the offense charged, and that
the trial court’s finding did not subject the defendant to a
greater penalty but only raised the minimum sentence. Id.
at 95.

In the course of its discussion, the Court observed that, had
the trial court’s finding of visible possession of a firearm
exposed the defendant to "greater or additional
punishment," the argument that the finding was an element of
the crime subject to the reasonable doubt standard of proof
"would have at least more superficial appeal." Id.
at 88. The Court also observed that if the sentencing proceeding
was "radically different," the reasonable doubt
standard may be applied to post-trial findings. Id. at 89.

Contrary to Walker’s assertion, these comments do not impose a
due process requirement that the Commonwealth prove beyond a
reasonable doubt that the defendant engaged in the unadjudicated
criminal conduct offered as evidence in the sentencing phase of a
capital murder trial. These comments merely suggest that such a
burden of proof may be required for a factual finding that
exposes the defendant to greater punishment when such finding is
made in a sentencing proceeding that is "radically
different" from the normal sentencing proceeding. Even if
this suggestion were the rule, the Virginia death penalty
sentencing statute satisfies that rule. The "finding"
that exposes the defendant to the death penalty is that of future
dangerousness, or alternatively, vileness, which by statute must
be supported by proof beyond a reasonable doubt. See Code
Sect. 19.2-264.4(C). Furthermore, in McMillan, the
Supreme Court specifically cited its holding in Patterson v.
New York
, 432 U.S. 197, 214 (1977), for the proposition that
the state need not prove beyond a reasonable doubt every fact it
recognizes as a circumstance affecting the severity of
punishment. McMillan, 477 U.S. at 84. Therefore, we reject
Walker’s assertion that due process requires that evidence of
unadjudicated criminal conduct admitted to show the defendant’s
future dangerousness is subject to the reasonable doubt standard.

Finally, Walker asserts that the use of the unadjudicated
criminal conduct evidence denies him a meaningful opportunity to
be heard on the evidence used against him, thus denying him
effective assistance of counsel. Walker had notice of the
evidence the Commonwealth intended to introduce and the
opportunity to cross-examine the witnesses offering this
evidence. He does not claim such notice was inadequate nor does
he contend that his counsel’s performance was inadequate.

Rather Walker argues, on a more general level, that
"counsel defending against prior unadjudicated criminal
conduct [evidence] is beyond the resources and realm of effective
representation in defending a single capital crime." By this
argument Walker seeks to raise a Sixth Amendment claim without
inquiry into counsel’s actual performance at trial. Whether or
not such a claim might be sufficient in limited circumstances, it
cannot prevail in this case.

The United States Supreme Court has found constitutional error
without inquiring into counsel’s actual performance only when
surrounding circumstances justify a presumption of
ineffectiveness. United States v. Cronic, 466 U.S. 648,
662 (1984). For example, where counsel was totally absent, was
prevented from assisting the accused during a critical stage of
the proceeding, or was prevented from exercising independent
judgment in the manner of conducting the defense, the Supreme
Court has presumed that counsel was ineffective and that the
defendant was thus prejudiced. See id. at 659 n.
25; Geders v. United States, 425 U.S. 80 (1976)(attorney
barred by law from consulting with client during overnight
recess); Herring v. New York, 422 U.S. 853 (1975)(attorney
barred by law from giving summation at bench trial); Brooks v.
Tennessee
, 406 U.S. 605 (1972)(requirement that defendant be
first defense witness); Powell v. Alabama, 287 U.S. 45
(1932)(counsel for defendant charged with capital offense
appointed on day of trial).

The admission of evidence of unadjudicated criminal conduct,
unlike the cases cited above, does not present circumstances
justifying a presumption of ineffective assistance of counsel.
After having obtained a guilty verdict, the Commonwealth was
burdened by statute with the responsibility of proving beyond a
reasonable doubt either future dangerousness or vileness before
the death penalty could be imposed. As discussed above, the
unadjudicated criminal conduct was relevant to Walker’s future
dangerousness, Walker had notice that such evidence would be
used, and he had the opportunity to cross-examine the witnesses
through whom the Commonwealth offered this evidence.

Accordingly, we find that admission of this evidence did not
violate Walker’s due process or Sixth Amendment rights to
effective assistance of counsel and a meaningful opportunity to
defend himself.

VII. Admission of Evidence of Cartridge

During the guilt phase, Detective Curtis R. Mullins testified
that he received a cartridge from Steve Martin, who was the
property manager of the University Terrace Apartments where the
Beale murder occurred. Walker lived in an apartment there with
Karen Beech until some time after Beale’s death. Martin found the
cartridge in the apartment following Walker and Beech’s departure
and prior to the arrival of a new tenant. A certificate of
analysis introduced at trial indicated that the cartridge came
from the same firearm as seven cartridge cases recovered at the
scene of the Beale murder.

At trial, Walker sought to exclude evidence regarding the
cartridge on the basis that it was found three to four months
after the murder. Walker argues on appeal that the trial court
erred in admitting Martin’s testimony and the certificate of
analysis into evidence because it was "neither relevant nor
material, and its prejudicial effect far outweighed any possible
probative value it may have had." Walker bases his relevancy
argument on his view that the trial court stated from the bench
that the cartridge was not relevant. He concludes, therefore,
that the trial court abused its discretion in admitting the
cartridge into evidence.

Viewed in context, however, the trial court’s statement
reveals that what it found "irrelevant" was the effect
of the time gap between the murder and Martin’s discovery of the
cartridge on the admissibility of the evidence concerning the
cartridge. Every fact, however remote or insignificant, that
tends to establish the probability or improbability of a fact in
issue, is factually relevant and admissible. Epperly v.
Commonwealth
, 224 Va. 214, 230, 294 S.E.2d 882, 891 (1982).
The fact that a cartridge matching those in the Beale murder was
found in an apartment once occupied by the defendant tends to
implicate the defendant in that murder and is thus relevant. As
the trial court indicated, the four-month time period between the
murder and discovery of the cartridge may affect the weight to be
attached to the evidence, but it does not render the cartridge
irrelevant and thus inadmissible.

Evidence that is factually relevant must nevertheless be
excluded if its probative value is substantially outweighed by
the danger of unfair prejudice. See Coe v. Commonwealth,
231 Va. 83, 87, 340 S.E.2d 820, 823 (1986). The responsibility
for balancing the competing considerations of probative value and
prejudice rests in the sound discretion of the trial court and
will not be disturbed on appeal in the absence of a clear abuse. Spencer,
240 Va. at 90, 393 S.E.2d at 617. Walker does not identify any
prejudice that arose from the admission of the cartridge other
than its tendency to show that Walker killed Beale. Accordingly,
we find that the trial court did not err by admitting evidence
related to the cartridge into evidence.

VIII. Admission of Photographs

During both the guilt and sentencing phases of the proceeding,
the Commonwealth introduced photographs of the crime scenes and
autopsy photographs of Threat. Walker asserts that the
photographs were "a calculated attempt to arouse the
jurors’s sympathies" and that because they were not
"substantially necessary" to the Commonwealth’s case,
the trial court erred in admitting them into evidence. We
disagree.

Admission of photographs is within the discretion of the trial
court. Walton v. Commonwealth, 256 Va. 85, 91, 501 S.E.2d
134, 138 (1998). Photographs of crime scenes are admissible to
show motive, intent, method, malice, premeditation, and
atrociousness of the crime. Id. at 92, 501 S.E.2d at 138.
Photographs which accurately depict the crime scene are not
rendered inadmissible simply because they are gruesome or
shocking. Id. There is no assertion that the photographs
here were not accurate representations of the murder scenes.

The Commonwealth offered the crime scene photographs to show
the positioning of Beale’s body and other incidents of his murder
and to show where items of evidence were found at the Threat
murder scene. Such photographs are relevant and probative
evidence for the jury to consider. Clagett v. Commonwealth,
252 Va. 79, 87, 472 S.E.2d 263, 268 (1996), cert. denied,
519 U.S. 1122 (1997); Goins, 251 Va. at 459, 470 S.E.2d at
126.

The autopsy photographs, introduced at the penalty phase of
the proceeding, showed the " stippling" near Threat’s
wounds, indicating the close range at which Walker shot Threat,
and were relevant on the issue of whether Walker’s conduct was
outrageously vile. Washington v. Commonwealth, 228 Va.
535, 551, 323 S.E.2d 577, 588 (1984), cert. denied,
471 U.S. 1111 (1985).

As discussed above, evidence that is logically relevant must
be excluded if its probative value is substantially outweighed by
its prejudicial effect. Coe, 231 Va. at 87, 340 S.E.2d at
823. This balancing is left to the sound discretion of the trial
court and will not be disturbed on appeal absent clear abuse of
discretion. Id. We have examined the photographs and
conclude that the trial court did not abuse its discretion in
admitting them into evidence.

IX. Toxicologist Evidence

Walker assigns error to the trial court’s refusal to admit
into evidence the testimony and reports of a toxicologist who
found the presence of drugs in the systems of both victims.
Walker asserts that this evidence was relevant because it
"would be circumstantial evidence . . . of a
possible alternative motive for the killing by someone
else." We disagree.

Only evidence which bears upon and is pertinent to matters in
issue is relevant and should be admitted. Coe, 231 Va. at
87, 340 S.E.2d at 823. Evidence of collateral facts and facts
incapable of supporting an inference on the issue are irrelevant
and cannot be accepted into evidence. Id. There is nothing
in this record which supports Walker’s theory that the murders
were drug-related, and evidence of the presence of drugs in the
victims’ systems simply does not support the inference that
someone other than Walker committed the crimes. Accordingly, the
trial court did not abuse its discretion in refusing to admit
this evidence.

X. Testimony of Prison Conditions

During the penalty phase of the proceeding, Walker sought to
introduce the testimony of Gary Bass, Chief of Operations for the
Virginia Department of Corrections, regarding the conditions of
prison life, specifically life without parole in a maximum
security prison. Walker asserts that this evidence was relevant
and properly admissible because it would mitigate against his
receiving the death penalty, and therefore, the trial court erred
in refusing to admit it. However, we have previously held that
such testimony is not proper mitigating evidence. Cherrix v.
Commonwealth
, 257 Va. 292, 309-10, 513 S.E.2d 642, ___
(1999).

XI. Sufficiency of the Evidence

A. Guilt Phase

Walker asserts that the trial court should have sustained his
motion to strike the Commonwealth’s evidence made at the close of
the Commonwealth’s case-in-chief because the evidence was
insufficient as a matter of law to convict Walker of the offenses
charged. Walker argues that the "sole" evidence against
him is the testimony of the eyewitnesses and that this testimony
is "inherently incredible." With regard to the Beale
murder, Walker argues that the ages of Bianca and Tameria,
thirteen and fourteen respectively, made their testimony
"suspect." Walker asserts that their credibility is
further undermined by the testimony of Christopher Miller, a
witness for the Commonwealth, who stated that the person he saw
with a gun at the apartment complex on the night of the murder
was not bald, in contradiction to the fact that Taylor had
described the shooter as being bald. With regard to the murder of
Threat, Walker claims that Noble’s testimony should be discounted
because she told the investigating officer both that she did not
know the shooters and that one shooter was named
"Paul." Walker asserts that this inconsistency renders
Noble’s testimony inherently incredible.

Walker’s argument is based entirely on the issue of witness
credibility. The trier of fact is the sole judge of the
credibility of the witnesses, Davis v. Commonwealth, 230
Va. 201, 206, 335 S.E.2d 375, 379 (1985), unless, as a matter of
law, the testimony is inherently incredible, Rogers v.
Commonwealth
, 183 Va. 190, 201-02, 31 S.E.2d 576, 580 (1944).
The jury in this case resolved the credibility issues regarding
the testimony of Bianca, Tameria, and Noble against the position
advanced by Walker. The ages of Bianca and Tameria and the
conflict in testimony regarding whether the person seen was bald,
while issues to be weighed by the fact finder, do not support a
finding that the testimony is inherently incredible. Similarly,
Noble’s statements to the investigating officer did not render
her testimony inherently incredible. Accordingly, we will not
disturb the ruling of the trial court denying Walker’s motion to
strike the Commonwealth’s evidence.

B. Evidence of Aggravating Factors

Walker asserts that the Commonwealth failed to carry the
burden imposed upon it by Code Sect. 19.2-264.4(C) to prove
beyond a reasonable doubt that he would be a continuing threat to
society, or that his conduct in committing the murders was
outrageously vile, horrible, or inhuman, in that it involved
depravity of mind or aggravated battery.

This argument is without merit. With regard to future
dangerousness, the Commonwealth introduced Walker’s prior
convictions for carnal knowledge, forgery, assault, and
unauthorized use of a motor vehicle. The evidence also showed
that Walker regularly stole from friends and acquaintances and,
in a rage, had punched a pregnant woman in the stomach. In
addition, as the trial court noted in imposing sentence in
accordance with the jury’s recommendation, the commission of two
brutal, unprovoked murders within a six month period is a
"strong indication . . . that [Walker] is prone
towards violence."

With regard to vileness, the Commonwealth’s evidence supports
two of the alternative factors which can support a finding of
vileness — aggravated battery and depravity of mind. See
Goins, 251 Va. at 468, 470 S.E.2d at 131 (proof of any one
of these statutory components will support a finding of
vileness). Aggravated battery is a battery which
"qualitatively and quantitatively, is more culpable than the
minimum necessary to accomplish an act of murder." M.
Smith v. Commonwealth
, 219 Va. 455, 478, 248 S.E.2d 135, 149
(1978), cert. denied, 441 U.S. 967 (1979). In this
case Beale was shot three times, and any one of the shots could
have been fatal. Walker shot Threat seven times. These multiple
gunshots establish aggravated battery. Goins, 251 Va. at
468, 470 S.E.2d at 131.

Walker’s actions established depravity of mind, that is, a
"degree of moral turpitude and psychical debasement
surpassing that inherent in the definition of ordinary legal
malice and premeditation." M. Smith, 219 Va. at 478,
248 S.E.2d at 149. Walker shot his victims in front of their
loved ones and family members, after having forcibly invaded the
sanctity of their homes. The evidence showed that the killings
were unprovoked, premeditated, and methodical. Walker showed no
mercy toward his victims or their loved ones.

Based on this evidence, we conclude that the Commonwealth
proved beyond a reasonable doubt that Walker would be a
continuing serious threat to society and that his conduct in
committing the murders was vile. Accordingly, the trial court did
not err in refusing to strike the Commonwealth’s evidence of the
aggravating factors.

XII. Statutory Review

Code Sect. 17.1-313(C) requires this Court to consider
whether the sentence of death was imposed "under the
influence of passion, prejudice or any other arbitrary
factor," and whether such sentence is excessive or
disproportionate to penalties imposed in similar cases,
"considering both the crime and the defendant." Walker
presents no arguments asserting that his sentence resulted from
passion or prejudice, but relies on our statutorily mandated
review of this issue.

Our review of the record reveals nothing to suggest that the
sentence of death resulted from passion, prejudice or
arbitrariness. As we have said, the record supports the findings
of guilt and of the aggravating factors, and there is nothing to
suggest that Walker’s sentence of death was imposed because of
any arbitrary factor.

Walker also relies on the review we must undertake to
determine whether the sentence imposed in this case is excessive
or disproportionate to other sentences imposed by sentencing
bodies in this Commonwealth for similar crimes. This is the first
case we have considered in which the death penalty had been
imposed for the willful, deliberate, and premeditated killing of
more than one person within a three-year period. Code
Sect. 18.2-31(8).* The General Assembly
classified this conduct as capital murder in 1996. Acts 1996, ch.
959. However, the lack of directly comparable crimes does not
prevent our consideration of whether the sentence imposed in this
case was disproportionate under the review mandated by Code
Sect. 17.1-313(C)(2). If it did, as we observed in Stewart
v. Commonwealth
, 245 Va. 222, 248, 427 S.E.2d 394, 410, cert.
denied, 510 U.S. 848 (1993), then "a death sentence
could never be imposed where there are no previous cases similar
to the one at bar."

After reviewing the incidents of this crime and the
circumstances of this defendant, we conclude that the sentence of
death was not disproportionate to other sentences imposed in this
Commonwealth for similar crimes. There are a number of incidents
of this capital murder which are comparable to the facts
surrounding other cases in which the death penalty has been
imposed.

First, Walker invaded the homes of both of his victims and
shot them in front of family members or a loved one. Juries have
imposed the death penalty for the murder of victims in their
homes and in the presence of another family member. See Goins,
251 Va. 442, 470 S.E.2d 114; Burket v. Commonwealth, 248
Va. 596, 450 S.E.2d 124 (1994), cert. denied, 514
U.S. 1053 (1995); Stewart v. Commonwealth, 245 Va. 222,
427 S.E.2d 394; Davidson v. Commonwealth, 244 Va. 129, 419
S.E.2d 656, cert. denied, 506 U.S. 959 (1992).

Second, as with Stewart, Goins and Burket
above, the jury in this case found upon sufficient evidence that
Walker’s conduct in committing these murders was outrageously or
wantonly vile, and that Walker posed a continuing serious threat
to society.

Third, the jury found upon sufficient evidence that Walker
committed the willful, deliberate, premeditated killing of
multiple persons. Juries have in the past, based on the predicate
of future dangerousness and vileness, imposed the death sentence
upon perpetrators of multiple homicides within a brief time
period under Code Sect. 18.2-31(7), which makes it a capital
crime to murder more than one person in the same transaction. See
Goins, 251 Va. 442, 470 S.E.2d 114; Burket, 248 Va.
596, 450 S.E.2d 124; Stewart, 245 Va. 222, 427 S.E.2d 394.

In the instant case, the separation of time between the
murders arguably evidences an even greater disregard for human
life. The second murder in this case did not occur because that
victim was located proximately to the first, as in some single
transaction murders. Here, Walker engaged in distinct complete
acts of willful, deliberate, and premeditated murder. The serial
nature of his criminal conduct is no less egregious because it
was not performed as part of a single transaction.

Finally, the evidence Walker offered in mitigation during the
sentencing phase, when compared to the evidence of his prior
history and circumstances of this crime, does not distinguish him
from defendants who have been sentenced to death in past cases.

Based upon this review, we find that the sentence of death in
this case is neither excessive nor disproportionate to sentences
imposed by sentencing bodies in this Commonwealth for similar
crimes. Consequently, we hold that the trial court committed no
reversible error and, based on our independent review of the
record, conclude that the sentence of death was properly imposed.
Thus, we will affirm the trial court’s judgment concerning
Walker’s conviction and sentence for capital murder. We will also
affirm the trial court’s judgment concerning Walker’s convictions
and sentences for burglary and use of a firearm.

Record No. 990096 — Affirmed.

Record No. 990097 — Affirmed.

 

* The defendant in Walton v. Commonwealth,
256 Va. 85, 501 S.E.2d 134 (1998), was convicted of four charges
of capital murder. One of those convictions was pursuant to Code
Sect. 18.2-31(8); however, the trial court dismissed the
charge after sentencing on the other three convictions.

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