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April 21, 2000

Record Nos. 992840, 000151

Mark Wesley Bailey


Commonwealth of Virginia

FROM THE circuit court of the city of hampton

Walter J. Ford, Judge

Present: Carrico, C.J., Lacy, Hassell, Keenan,
Koontz, and Kinser, JJ., and Compton, Senior Justice


As mandated by Code ? 17.1-313, we review
the convictions and death sentences imposed upon Mark Wesley
Bailey (Bailey), for the capital murder of Nathan Mark Bailey
(Nathan), Bailey’s two-year-old son. We also review
Bailey’s convictions for the first-degree murder of
Katherine Ester Bailey (Katherine), Bailey’s wife, and use
of a firearm in the commission of capital murder and first-degree


Under familiar principles of appellate review,
we will review the evidence in the light most favorable to the
Commonwealth, the party prevailing below. Clagett v.
, 252 Va. 79, 84, 472 S.E.2d 263, 265 (1996), cert.
, 519 U.S. 1122 (1997). In his opening brief, Bailey
recounts a self-serving narrative of his wife’s infidelity
which he contends drove him to commit these crimes. The facts
underlying this narrative were developed during the
penalty-determination phase of Bailey’s trial as evidence in
mitigation against the death penalty. The prurient details of
this evidence are not relevant to any issue to be considered in
these appeals other than the appropriateness of the imposition of
the death penalty. Accordingly, we will limit our present
recitation of the facts to those relevant to our consideration of
Bailey’s assignments of error.

Bailey was married to Katherine, his cousin
whom he had known most of his life and with whom he had been
romantically involved for over a year, on December 25, 1993 in
Reno, Nevada. In March 1996, Katherine gave birth to the
couple’s son, Nathan. After the birth of their son, the
couple became emotionally estranged, although they continued
living in the same household.

In mid-1998, Bailey began relating to his
co-workers a fabricated account of his wife having received
threatening telephone calls and notes. Bailey subsequently
admitted to police that he invented these stories in order to
divert suspicion from himself when he murdered his wife. In
August 1998, Bailey borrowed a .22-caliber pistol from a friend
and purchased ammunition for the pistol.

On September 10, 1998, Bailey awoke about 4:30
a.m., went to the bedroom where his wife was sleeping, and shot
her three times in the head with the borrowed pistol. Bailey then
heard Nathan awaking in the next bedroom. He went to his
son’s bedroom and shot the child twice in the head as the
child was climbing out of bed.

Bailey washed blood off his face and dressed
for work. He cut the bathroom window screen with a razor knife
and cut the outside telephone line in order to give the
appearance that a break-in had occurred. Bailey then left for
work, taking the pistol and razor knife with him.

When Bailey arrived at work, he told Richard
Moravec, his supervisor, that his wife had received another
threatening note that read "X-U-T" or "X-U-P"
and that he believed this meant "Time’s up."
Bailey repeated this story to Joseph Yount, Moravec’s
supervisor. A short time later, Bailey told Moravec that he had
received a telephone call from someone claiming that he "had
[Bailey’s] wife." Moravec reported these events to
Yount, who instructed Moravec to call the police. Yount then
accompanied Bailey to Bailey’s home.

When Yount and Bailey arrived at Bailey’s
home, police had already arrived and an officer emerging from one
of the bedrooms stopped the two men in the living room. Yount
suggested that they wait outside. Yount later testified that as
they waited Bailey "was stone-faced and cold-looking."
Thomas Killilea, a detective with the Hampton Police Department,
informed Bailey that his wife and son were dead. Killilea
testified that upon hearing this, Bailey lurched forward and
appeared to have tears in his eyes. Bailey then told Killilea
about the threatening telephone calls and notes that he claimed
his wife had received.

Killilea asked Bailey to accompany him to the
police station and Bailey agreed. Bailey rode in the front of
Killilea’s police vehicle; Yount rode in the back seat.
Bailey was not under arrest at this time. At the police station,
Bailey signed a consent form allowing the police to search his
home; he also consented to take a polygraph test. While at the
police station, Bailey was offered food, drink, and the
opportunity to use the lavatory. He engaged the police officers
in casual conversation and was allowed to step outside to smoke
cigarettes. During this time, Bailey wrote a statement detailing
the fictitious story of the threats made against his wife.

The polygraph was administered to Bailey at
12:15 p.m. During the polygraph, the examiner detected deception
in Bailey’s response to the question, "Are you
intentionally withholding the name of the killer
. . .?" The examiner asked Bailey if he thought it
was time to tell the detectives "what was really going
on." Bailey looked at the floor and answered,

At 1:42 p.m., Bailey was taken to an interview
room where Killilea and Detective Jimmy L. Forbes spoke to him
for a little over an hour. Bailey was mostly unresponsive during
this interview. Forbes raised the subject of his own religious
beliefs. He suggested that Bailey needed to get his "heart
right with the Lord and that his soul would not rest until he
did." Bailey asked for a soft drink. When Killilea left the
room to get the soft drink, Bailey took a legal pad and pen from
the table in the interview room and wrote, "I Mark Bailey do
hereby without any coercsion [sic] admit to the murder of
my wife and son."

When Killilea returned with the soft drink,
Forbes showed him the statement Bailey had written. Bailey then
said, "You got what you wanted. I guess I’m not leaving
now." At 3:19 p.m., Bailey was advised of his Miranda
rights, and the detectives began an interrogation that lasted
until 5:45 p.m. During this period Bailey wrote out answers to
the detectives’ questions and a videotape of his confession
to the murders was made.

During his stay at the police station Bailey
never asked to leave, nor did he request an attorney. At the
conclusion of the interrogation, Bailey remarked to Killilea,
"You probably think I’m an [expletive deleted] for
killing my wife and family – – or my wife and son." The
detective explained that if he had thought that he would not have
treated Bailey with dignity and respect. Bailey agreed he had
been "treated well."


A. Pre-trial

On December 7, 1998, the grand jury of the City
of Hampton returned an indictment against Bailey charging him
with the capital murder of Nathan as part of the same act or
transaction as the killing of Katherine, Code ? 18.2-31(7),
"and/or" as the killing of a person under the age of
fourteen by a person twenty-one years of age or older, Code
? 18.2-31(12). In separate indictments, Bailey was also
charged with the first-degree murder of Katherine, Code
? 18.2-32, and with one count of the use of a firearm in
each of the two killings, Code ? 18.2-53.1.

On January 12, 1999, Bailey filed a motion for
the appointment of an "expert investigator." Bailey
contended that he needed the assistance of an investigator to
"locate essential witnesses and data, [and] examine and
evaluate testimony and documents . . . likely to be
significant at a capital murder trial." By order entered
that same day, the trial court denied the motion, finding there
was no "sufficient reasonable cause for an investigator to
be assigned to the defense in this case."

On February 9, 1999, Bailey filed a motion to
have the Virginia capital murder and death penalty statutes
declared unconstitutional. Within a supporting memorandum filed
with that motion, Bailey set out various arguments that the
manner in which capital murder trials are conducted and death
sentences reviewed on appeal violated aspects of the Fifth,
Sixth, Eighth, and Fourteenth Amendments of the United States
Constitution. Since Bailey challenges the denial of his motion by
the trial court in this appeal, we need not recite those
arguments here, but will address them in our discussion of
Bailey’s assignments of error.

On that same day, Bailey filed a motion for
discovery and inspection. Within that motion, Bailey made a
litany of requests for information from the Commonwealth, which,
as his counsel subsequently conceded during argument of the
motion, went well beyond any reasonable interpretation of what
the Commonwealth could be required to provide a defendant under
Rule 3A:11 and the dictates of Brady v. Maryland, 373 U.S.
83 (1963). The trial court, acknowledging that the Commonwealth
had an "open file" policy, granted the motion only to
the extent that criminal discovery is required by Rule 3A:11.

On March 29, 1999, Bailey filed a motion to
suppress the statements he made to the police on September 10,
1998. During oral argument in support of that motion, Bailey
contended that any statements made to the police prior to his
having been read his Miranda rights were the product of an
improper custodial interrogation. He further contended that his
confession given thereafter was not voluntary because the
detectives through trickery and manipulation had overborne his
will. After hearing evidence from the three detectives
principally responsible for the interview and interrogation of
Bailey, the trial court found that Bailey had not been in custody
prior to his initial admission of culpability for the murders and
that his subsequent confession was not the result of his will
having been overborne by the detectives. The trial court denied
the suppression motion.

On May 5, 1999, Bailey filed a motion for a
bill of particulars requesting, inter alia, that the
Commonwealth specify which of the aggravating factors of future
dangerousness or vileness it would rely upon in seeking to impose
the death penalty and the evidence in support thereof it would
present. Following oral argument on this motion, the trial court
denied the motion, finding that the indictment adequately
informed Bailey of the nature of the charges brought against him.

B. Guilt-determination Phase

On July 20, 1999, a three-day jury trial
commenced in the trial court. Evidence in accord with the facts
recited above concerning the events of September 10, 1998 was
developed through the testimony of various police officers and
Bailey’s co-workers. In addition, the Commonwealth presented
forensic evidence through the testimony of Assistant Chief
Medical Examiner Dr. Leah L.E. Bush.

Dr. Bush performed autopsies on the bodies of
both victims. She testified that Katherine had sustained three
gunshot wounds to the parieto-occipital area of the skull behind
the left ear. From the absence of powder stippling on the body,
Dr. Bush estimated that the shots had been fired from a distance
of three feet or more and that any one of the three wounds would
have been lethal. Dr. Bush further testified that Nathan had
sustained two close range gunshot wounds to the head and that
both shots penetrated the brain and either alone would have been

The Commonwealth introduced photographs of the
crime scene through the testimony of Patrol Officer Keith Tucker
and paramedic Chris Skutans, who were among the first to arrive
at the crime scene. Each testified that these photographs
depicted what they saw inside the house, the only difference
being that the house had been dark when they entered it and the
photographs showed the scene illuminated rather than dark. The
trial court admitted these photographs in evidence over
Bailey’s objection that a proper foundation had not been
laid for their admission. Bailey also objected to several of
these photographs and to autopsy photographs of both victims on
the grounds that they were inflammatory and irrelevant. The trial
court overruled this objection, finding that the photographs were
relevant to show the nature of the victims’ wounds.

Bailey did not testify or offer any evidence in
his defense in the guilt-determination phase. Rather, Bailey
relied on the content of his statement to police, arguing to the
jury that it showed he had not planned or intended to kill his
son, but that he had done so in a moment of passion after he
panicked when he realized that Nathan would be traumatized by
finding his mother’s dead body. Similarly, he contended that
the killing of Katherine was not premeditated, but the result of
his mental anguish and emotional disturbance.

Bailey objected to two instructions proffered
by the Commonwealth that permitted the jury to find Bailey guilty
of two counts of capital murder based upon the two theories of
capital murder stated in the indictment. Bailey contended that
the indictment charged only one count of capital murder. The
trial court found that the "indictment is subject to two
different, separate sections of the statute . . . and
[it would be] proper to actually have two capital murder

The jury found Bailey guilty of two counts of
capital murder in the killing of Nathan as charged in the
indictment, of first-degree murder in the killing of Katherine,
and of both firearm charges.

C. Penalty-determination

Prior to the commencement of the
penalty-determination phase, the Commonwealth elected not to
present evidence of Bailey’s future dangerousness to
society. Thus, the Commonwealth relied solely upon the vileness
aggravating factor to establish the appropriateness of imposing
death sentences for the two capital murder convictions. The
Commonwealth presented evidence of vileness based upon the
statutory definition that "the offense . . .
involved . . . depravity of mind or an aggravated
battery to the victim." Code ? 19.2-264.2.

Dr. Bush again testified for the Commonwealth
and reiterated her prior testimony concerning the gunshot wounds
sustained by the two victims. She further testified that the
manner in which Nathan was killed was consistent with an
"execution-style gunshot wound." The Commonwealth also
presented victim-impact testimony from Katherine’s mother.
Prior to resting its case, the Commonwealth asked the trial court
to instruct the jury to also consider all the testimony from the
guilt-determination phase in considering the sentences.

Testifying for the defense, Dr. Evan Nelson, a
clinical psychologist, described Bailey as suffering from a
borderline personality disorder. Dr. Nelson testified that
impulsive actions are characteristic of this condition. Dr.
Nelson further opined that the killing of Nathan was "a very
impulsive act . . . an impulsive, stupid, terrible,
senseless act . . . and that fits with [a diagnosis of
a] borderline personality."

As mentioned previously, the balance of
Bailey’s evidence during the penalty-determination phase was
directed toward establishing that his wife’s infidelity and
aberrant lifestyle had emotionally traumatized Bailey and, thus,
mitigated his culpability for having committed these crimes.
Although the Commonwealth does not dispute the essential facts as
recounted by Bailey’s witnesses, Bailey’s
interpretation that the evidence showed him to be the
"victim" of his wife’s emotional manipulation was
by no means established beyond controversion. It was for the jury
to determine what weight to accord this evidence in determining
Bailey’s sentence. We are cognizant of the record and will
consider it in our review of the jury’s sentence even though
we do not recount that evidence.

Bailey objected to the Commonwealth’s
proposed verdict forms for the capital murder charges, which
permitted the jury to impose a death sentence upon finding either
that the killing of Nathan was vile because it resulted from an
aggravated battery or because the murder resulted from a
depravity of mind, or that both of these circumstances were
present. Bailey contended that the forms were confusing, but
acknowledged that the forms properly instructed the jury that it
should impose a life sentence if it found that there was
insufficient proof of the vileness aggravating factor under
either theory relied upon by the Commonwealth. Bailey further
indicated that he did not have alternative forms to proffer. The
trial court adopted the Commonwealth’s verdict forms.

The jury imposed the death sentence for each of
the capital murder charges, a life sentence for the first-degree
murder charge, and a total of eight years for the firearm

D. Post-trial

Prior to the sentencing hearing, Bailey filed a
motion requesting that the trial court obtain the records of
capital murder cases maintained by this Court pursuant to Code
? 17.1-313. The trial court denied the motion, indicating
that it had already reviewed "a large volume" of
relevant cases in anticipation of Bailey’s trial and
sentencing and that it was therefore not necessary for the trial
court to obtain and review additional records from this Court.

In that same motion, Bailey sought to have the
jury’s death penalty verdict set aside on the ground that
the sentence was disproportionate to sentences imposed in similar
cases. Following the preparation of a pre-sentencing report, the
trial court held a sentencing hearing and heard argument from
Bailey concerning the appropriateness of imposing the death
sentences. Bailey contended that the death sentence was not
appropriate because the killing of a child by his parent was an
"emotional trigger" which clouded the jury’s
judgment, but which did not indicate the requisite depravity of
mind. Bailey asserted that the vileness of the crime was thus
based solely on the question of an aggravated assault, and that
the forensic evidence showed that the victims "never knew
what hit them" because the first shots would have been fatal
or rendered the victims unconscious. The trial court confirmed
the death sentences and the other sentences imposed by the jury.
These appeals followed.


A. Moot Issues

Bailey’s fourth assignment of error
challenges the constitutionality of the Virginia death penalty
statute on the ground that the Commonwealth may prove the
aggravating factor of future dangerousness through evidence of
unadjudicated criminal conduct. Because the Commonwealth did not
present evidence during the penalty-determination phase
concerning Bailey’s future dangerousness to society, this
issue is moot and need not be addressed. See Swann v.
, 247 Va. 222, 228 n.2, 441 S.E.2d 195, 200 n.2, cert.
, 513 U.S. 889 (1994); Fisher v. Commonwealth,
236 Va. 403, 414, 374 S.E.2d 46, 53 (1988), cert. denied,
490 U.S. 1028 (1989). For the same reason, Bailey’s
challenges to the constitutionality of the future dangerousness
aggravating factor that are part of his first and third
assignments of error are also moot.

B. Issues Previously Decided

In his fourteenth assignment, Bailey asserts
that the trial court erred in denying as overbroad that portion
of his discovery motion that requested information from the
Commonwealth beyond that requisite to meet the requirements of
Rule 3A:11. Bailey contends that a capital murder defendant
should be afforded more extensive discovery because of "the
unique and irreversible nature of the death penalty." At the
hearing on his motion, Bailey conceded that his motion requested
any and all evidence Rule 3A:11 required the Commonwealth to
provide him and "anything else including the kitchen
sink." Bailey’s motion and argument are virtually
identical to those discussed in Walker v. Commonwealth,
258 Va. 54, 63, 515 S.E.2d 565, 570-71 (1999). As in that case,
the record here reflects that Bailey received all of the
discovery to which he was entitled. We find nothing in
Bailey’s argument that would warrant an extension of his
discovery rights. Id. at 63, 515 S.E.2d at 571.

Bailey further contends in his fifteenth
assignment of error that the trial court erred in denying his
motion for a bill of particulars. There is no merit to this
contention. In Strickler v. Commonwealth, 241 Va. 482, 404
S.E.2d 227, cert. denied, 502 U.S. 944 (1991), we held
that when the indictment is sufficient to give 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; see also 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 Bailey’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." Strickler, 241 Va. at 490, 404 S.E.2d at
233. As such, the request for a bill of particulars was nothing
more than an effort to obtain the same material Bailey had sought
to obtain through his overbroad discovery motion. We find nothing
in this record to warrant reconsideration of the well established
principles reiterated in Strickler concerning a
defendant’s right to a bill of particulars.

C. Matters Within the Trial
Court’s Discretion

Bailey’s tenth, eleventh, and twelfth
assignments of error concern rulings committed to the trial
court’s discretion. In each instance we find no evidence to
support a finding of an abuse of that discretion and,
accordingly, we hold that no error occurred.

Bailey contends that the trial court erred in
denying his motion to be provided the services of an "expert
investigator." We have consistently rejected the contention
that defendants, even in capital murder cases, have an
indiscriminate entitlement to the assistance of an investigator. See,
e.g., George v. Commonwealth, 242 Va. 264, 271, 411
S.E.2d 12, 16 (1991), cert. denied, 503 U.S. 973 (1992).
Rather, as with any request for the Commonwealth to provide a
defendant with expert assistance, the defendant must demonstrate
that he has a particularized need, meaning one which is material
to the preparation of his defense, for the services of an expert,
and that the denial of such services would result in a
fundamentally unfair trial. See Husske v. Commonwealth,
252 Va. 203, 212, 476 S.E.2d 920, 925 (1996). The determination
whether a defendant has adequately demonstrated a particularized
need for the assistance of an expert rests within the discretion
of the trial court. Id. at 212, 476 S.E.2d at 926.

Bailey asserted in his motion that he required
an investigator to "locate essential witnesses and data,
[and] examine and evaluate testimony and documents
. . . likely to be significant at a capital murder
trial." At the hearing on his motion, Bailey merely
reiterated his "need [for] some additional assistance by way
of the investigation" being conducted by his counsel. These
assertions fall far short of demonstrating a particularized need
for the services of an expert. "Mere hope or suspicion that
favorable evidence is available is not enough to require that
such help be provided." Id. at 212, 476 S.E.2d at
925. Accordingly, we cannot say that the trial court abused its
discretion in denying Bailey’s motion for the services of an
expert investigator.

Bailey contends that the trial court erred in
admitting into evidence thirteen photographs of the crime scene
without proper foundation. He contends that these photographs
were not initially proffered by the photographer who produced
them and that they did not accurately reflect the crime scene at
the time the subscribing witness first observed it.
[2] The thirteen photographs at issue were introduced
during the testimony of Officer Tucker and Skutans, the
paramedic. Each testified that the photographs accurately
depicted the murder scene except that the scene was more brightly
lit in the photographs than it had been.

We consistently have held that the admission of
photographs into evidence rests within the sound discretion of a
trial court, and that the trial court’s decision will not be
disturbed on appeal unless the record discloses a clear abuse of
discretion. Walton v. Commonwealth, 256 Va. 85, 91-92, 501
S.E.2d 134, 138, cert. denied, 525 U.S. 1046 (1998); Goins
v. Commonwealth
, 251 Va. 442, 459, 470 S.E.2d 114, 126, cert.
, 519 U.S. 887(1996). Photographs are generally
admitted into evidence for two purposes: to illustrate a
witness’ testimony, and as an "independent silent
witness" of matters revealed by the photograph. See Ferguson
v. Commonwealth
, 212 Va. 745, 746, 187 S.E.2d 189, 190, cert.
, 409 U.S. 861 (1972). "[A] photograph which is
verified by the testimony of a witness as fairly representing
what that witness has observed is admissible in evidence and
. . . it need not be proved by the photographer who
made it." Id.

Here, the testimony of the two witnesses that
the photographs fairly represented what they had observed was
adequate to establish the authenticity of the representation of
the photographs. Clagett, 252 Va. at 87, 472 S.E.2d at
268. The mere fact that the lighting was different at the time
the photographs were taken is not sufficient to render their
admission into evidence by the trial court an abuse of
discretion. See id. at 86, 472 S.E.2d at 267
(permitting jury to view videotape of crime scene where bodies of
victims had been moved by emergency personnel was not abuse of

Bailey also asserts that the trial court erred
in admitting four photographs of the crime scene and eight
autopsy photographs of the victims, on the ground that they were
cumulative, gruesome, and unduly inflammatory. Specifically with
respect to the photographs of Nathan, Bailey asserts that because
he stipulated to "the manner of the child’s death"
as depicted by diagrams in the autopsy report, the crime scene
and autopsy photographs "added nothing to the information
the jurors already possessed" and "did not tend to show
motive, intent, method, premeditation, malice, or the degree of
atrociousness of the crime." We disagree.

Admission of graphic photographs rests within
the discretion of the trial court so long as they are relevant
and accurately portray the scene of the crime or the condition of
the victim. See Clozza v. Commonwealth, 228 Va.
124, 135, 321 S.E.2d 273, 280 (1984), cert. denied, 469
U.S. 1230 (1985). Contrary to Bailey’s assertion, his
stipulation to "the manner of the child’s death"
did not render the crime scene and autopsy photographs cumulative
or irrelevant. The autopsy photographs were relevant to explain
the clinical illustrations of Nathan’s wounds in the autopsy
report. Moreover, it is self-evident that all these photographs
tended to establish the method, maliciousness, and degree of
atrociousness of the crime. Walton, 256 Va. at 92, 501
S.E.2d at 138; Goins, 251 Va. at 459, 470 S.E.2d at 126.
Accordingly, we find no abuse of the trial court’s
discretion in the admission of any of these photographs.

D. Constitutionality of the
Virginia Capital Punishment Statutes

Bailey’s first, second, third, fifth, and
sixth assignments of error repeat the challenges to the
constitutionality of the Virginia death penalty statute and the
statutory scheme under which capital murder trials are conducted
and death sentences are reviewed on appeal that the trial court
rejected in addressing Bailey’s pre-trial motion. We have
thoroughly addressed and rejected in numerous prior capital
murder cases the arguments raised in these assignments of error,
and we find no reason to modify our previously expressed views on
these issues.

In Breard v. Commonwealth, 248 Va. 68,
74, 445 S.E.2d 670, 674-75, cert. denied, 513 U.S. 971
(1994), we rejected the assertion that capital punishment
statutes do not give meaningful guidance to a jury because they
do not require the jury to find that aggravating circumstances
outweigh mitigating ones before fixing the death penalty. In Breard
we also rejected the contention that the method of instructing
jury on mitigation impermissibly interferes with jury’s
consideration of evidence offered in mitigation. Id.

In Turner v. Commonwealth, 234 Va. 543,
552, 364 S.E.2d 483, 488, cert. denied, 486 U.S. 1017
(1988), we rejected the assertion that the vileness aggravating
factor is unconstitutionally vague. Similarly, we have repeatedly
rejected the contentions that the death penalty constitutes cruel
and unusual punishment in violation of the Eighth Amendment, see,
e.g., Joseph v. Commonwealth, 249 Va. 78, 82, 452
S.E.2d 862, 865, cert. denied, 516 U.S. 876 (1995), and
that the method of review of a death sentence by trial court and
by this Court on appeal are unconstitutional, see, e.g.,
Walker v. Commonwealth, 258 Va. 54, 61, 515 S.E.2d 565,
569 (1999), cert. denied, ___ U.S. ___, 120 S.Ct. 955

In his seventh assignment of error, Bailey
contends, inter alia, that this Court has failed in its
statutory duty under Code ? 17.1-313(E) to maintain
"records of all capital felony cases" for use in the
proportionality review required by Code ? 17.1-313(C)(2),
and that this constitutes a violation of "Bailey’s due
process and other constitutional rights." We disagree.

Code ? 17.1-313(A) requires that
"[a] sentence of death, upon the judgment thereon becoming
final in the circuit court, shall be reviewed on the record by
the Supreme Court." As part of that mandatory review,
subsection (C)(2) of the statute directs this Court to determine
"[w]hether the sentence of death is excessive or
disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant." Code
? 17.1-313(E) further provides that:

The Supreme Court may accumulate the
records of all capital felony cases tried within such period
of time as the court may determine
. The court shall consider such
records as are available
as a guide in determining whether
the sentence imposed in the case under review is excessive. Such
records as are accumulated shall be made available to the circuit

(Emphasis added.)

This statute uses discretionary language
permitting this Court to determine the period of time within
which the records of all capital felony cases will be accumulated
for purposes of a proportionality review of a death sentence.
Thus, in the first capital murder case reviewed by this Court
following the enactment of the former version of Code
? 17.1-313, the Court exercised that discretion by entering
an order

directing the Clerk of this Court henceforth to
segregate and accumulate the printed records and opinions in all
class 1 felony cases, to maintain a current index of those cases,
and to make the index, records, and opinions of this Court
available for examination upon the request of any court of record
in the Commonwealth or in the federal jurisdiction.

Smith v. Commonwealth, 219 Va. 455, 482
n.8, 248 S.E.2d 135, 151 n.8 (1978), cert. denied, 441
U.S. 967 (1979); see also Jones v. Commonwealth,
228 Va. 427, 450, 323 S.E.2d 554, 567 (1984), cert. denied,
472 U.S. 1012 (1985).

This archive now maintained by the Clerk
pursuant to our order contains the records of all appeals of
convictions under Code ? 18.2-31, whether the sentence
imposed was death or life imprisonment, filed in this Court since
Smith and, from 1986, those capital cases resulting in a
sentence of life imprisonment first reviewed in the Court of
Appeals of Virginia. In addition, these records have been
summarized in digest form, and are cross-indexed according to the
offense of conviction, the sentence imposed, and whether a jury
or the trial court imposed that sentence.

Moreover, contrary to Bailey’s assertion
that the maintenance of "complete" records is requisite
to the preservation of his right to a proportionality review of
his death sentence, nothing in the statute, nor in the case law
relied upon by Bailey, prescribes the method by which an
appellate court conducts a proportionality review of a death
sentence. Rather, so long as the methods employed assure that the
death sentence is not disproportionate to the penalty generally
imposed for comparable crimes, due process will be satisfied and
the defendant’s constitutional rights protected.

Additional challenges to the constitutionality
of the capital appellate review process raised within
Bailey’s seventh assignment of error have been previously
addressed, and we find no reason to modify our previously
expressed views. See, e.g., Payne v.
, 233 Va. 460, 473-74, 357 S.E.2d 500, 508-09, cert.
, 484 U.S. 933 (1987)(procedures for appellate review
of death penalty cases, including expedited review, provide a
meaningful appeal and are constitutional).

On a related issue, in his twentieth assignment
of error, Bailey contends that the trial court erred in refusing
his motion that it obtain from this Court and review the records
of prior capital murder cases maintained pursuant to Code
17.1-313(E) before determining whether the death sentences were
appropriate, or to set them aside for "good cause
shown" pursuant to Code ? 19.2-264.5.
[4] This contention is without merit.

As noted above, Code ? 17.1-313(E)
requires that "[s]uch records as are accumulated [by this
Court] shall be made available to the circuit courts." We
have previously supplied our records to a circuit court upon
request. See Bunch v. Commonwealth, 225 Va. 423,
448, 304 S.E.2d 271, 285, cert. denied, 464 U.S. 977
(1983). However, nothing in the statute requires the circuit
court to make such a request, the matter being one committed to
the trial court’s discretion. Here, the trial court
indicated that it had reviewed a large number of cases to permit
it to fairly determine whether the death sentences were
appropriate. Moreover, nothing in the record constitutes good
cause shown to set these sentences aside and for the trial court
to have imposed life sentences. Accordingly, we find no abuse of
discretion in the trial court’s denial of Bailey’s

In his motion to have the Virginia death
penalty statute and the statutory scheme under which capital
murder trials are conducted and death sentences are reviewed on
appeal declared unconstitutional, Bailey contended that the
Commonwealth’s system of appointing counsel in capital cases
results in a denial of the right to effective assistance of
counsel. The trial court rejected this contention without

In addition, in his eighth assignment of error,
Bailey asserts that "Virginia has no system for appointment
of counsel . . . [and] expends no public funds on
education, assistance, or training of capital defense
counsel." Bailey further asserts that appointed counsel in
capital cases are "disproportionately from small firms with
resources inadequate to defend a capital murder charge."
Bailey also contends that the Commonwealth fails to provide
meaningful review of ineffective assistance of counsel claims
raised in habeas corpus petitions. According to Bailey,
"[t]hese factors, individually and collectively, violate
Bailey’s Sixth Amendment right to counsel." We

Bailey’s assertion that Virginia has no
system for the appointment of counsel in capital cases is
demonstrably in error. Code ?? 19.2-163.7 and
19.2–163.8 provide, in capital cases, for the appointment of
counsel who meet qualifications determined by the Public Defender
Commission in conjunction with the Virginia State Bar. These
statutes provide the criteria to be considered in determining the
qualifications for attorneys so appointed, including the
requirements that they have "current training in death
penalty litigation . . . [and a] demonstrated
proficiency and commitment to quality representation." We
are of opinion that this statutory scheme for identifying and
appointing qualified attorneys to represent indigent defendants
in capital murder cases adequately safeguards those
defendants’ constitutionally guaranteed right to counsel.

Bailey cites no authority for the proposition
that a state is required, as part of its obligation to afford
indigent defendants with appointed counsel in capital cases, to
further provide for the education, assistance, or training of
such counsel. In any case, there is no merit to Bailey’s
contention that Virginia fails to allocate public funds for these
purposes. In addition to establishing and funding the Public
Defender Commission, the General Assembly, through the
appropriation made for the Virginia State Bar, allocates funds
for the Virginia Capital Representation Resource Center. See,
e.g., 1998-2000 Executive Budget, 1999 Amendments,
page B-17 (1999).

Moreover, in 1998, the General Assembly
authorized a study of "the quality of capital representation
of indigent defendants in Virginia . . . [and] the
standards for qualification of counsel promulgated pursuant to
[Code] ? 19.2-163.8." House Joint Resolution 190, Acts
1998, at p. 2649. Although recommending certain improvements in
the manner in which counsel are appointed in capital cases, the
authors of the study concluded that "[t]he overall state of
the system for representation of indigent capital defendants is
good." Report of the Virginia State Crime Commission, Capital
Representation of Indigent Defendants
, House Document 60, at
1 (1999). According to a survey conducted as part of the study,
the quality of representation by appointed counsel in capital
murder trials, as appraised by the trial court judges, met or
exceeded the desired level of expertise and performance
ninety-eight percent of the time. Id. at 19. This
empirical data refutes Bailey’s wholly unsupported assertion
that appointed counsel in capital murder cases are generally
unqualified to provide effective representation.

We further reject Bailey’s contention,
also unsupported by reference to any credible data, that
appointed counsel in capital murder trials are
"disproportionately from small firms with resources
inadequate to defend a capital murder charge." Pursuant to
Code ? 19.2-163, counsel appointed in capital murder cases
may receive a fee in "an amount deemed reasonable by the
court" and "payment of such reasonable expenses
incurred." Accordingly, the ability of an appointed attorney
to represent a capital murder defendant is not limited to the
independent resources available to that attorney from his or her
law firm because the trial court will compensate the attorney for
any reasonable expenditure of time and expenses. Moreover, we are
unwilling to accept Bailey’s unsupported assertion that
attorneys in "small firms" are not in a position to
adequately defend a client charged with capital murder.

Bailey’s contention that Virginia fails to
provide meaningful review of ineffective assistance of counsel
claims raised in habeas corpus petitions does not state an
allegation of a facial or systemic violation of the
constitutionally guaranteed right to counsel. Moreover, Bailey
has not proffered any evidence in support of this contention.
Accordingly, we reject this unsupported contention.

For these reasons, we hold that Virginia’s
statutory scheme for the conduct of capital murder trials and the
review of death sentences does not violate the due process rights
and other protections afforded by the Fifth, Sixth, Eighth and
Fourteenth Amendments.

E. Suppression of
Bailey’s Statements to Police

In his thirteenth assignment of error, Bailey
contends that the trial court should have suppressed all
statements made by him to the police because his initial
confession was made before he received Miranda warnings.
He further contends that his detailed confession was the result
of police coercion. We disagree with both of these contentions.

Bailey premises his argument that his initial
statements were inadmissible and, thus, taint his subsequent full
confession, given after he received Miranda warnings, on
the ground that he had not waived his rights against
self-incrimination and to the benefit of counsel "during
in-custody questioning." The difficulty with this argument
is that it fails to address the trial court’s finding that
prior to Bailey’s making his initial confession he was not
in custody.

In Miranda, the Supreme Court held that,
before an individual may be questioned by police, he must be
warned 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." Miranda
v. Arizona
, 384 U.S. 436, 478 (1966). The Supreme Court
subsequently explained in Oregon v. Mathiason, 429 U.S.
492 (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.

Id. at 495.

We have also observed that Miranda
warnings are not required in every instance when a suspect is
interrogated at a police station. 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).

Bailey clearly was not in custody such as is
contemplated by Miranda at the time he made his initial
confession. The record shows that he voluntarily accompanied
police to the police station in an effort to continue the ruse
that his wife had received threatening telephone calls and notes.
His interaction with police throughout the morning and into the
early afternoon was entirely voluntary and Bailey was made aware
on more than one occasion that he was free to leave, if he so
desired. Accordingly, we find no merit to Bailey’s
contention that any statements he made prior to being given the Miranda
warnings were obtained in violation of his Fifth Amendment
rights. Thus, Bailey’s initial confession was admissible and
did not taint his subsequent confession.

Bailey nonetheless contends that the detailed
confession, obtained after he had been taken into custody and was
given the Miranda warnings, was not voluntary. He contends
that "[t]he interrogators effectively tricked, coerced and
cajoled [him] into making incriminating statements" and,
thus, that his "will was overborne by the
interrogators." We disagree.

When determining whether a defendant’s
will has been overborne, the totality of the circumstances,
including the defendant’s experience and background as well
as the conduct of the police, must be examined. Gray v.
, 233 Va. 313, 324, 356 S.E.2d 157, 163, cert.
, 484 U.S. 873 (1987). While the question whether a
statement is voluntary is ultimately a legal rather than a
factual one, subsidiary factual determinations made by the trial
court are entitled to a presumption of correctness. Thus, the
trial court’s finding that Bailey’s will was not
overborne is a factual finding, entitled on appeal to the same
weight as a finding by a jury, and will not be disturbed unless
plainly wrong. Witt v. Commonwealth, 215 Va. 670, 674-75,
212 S.E.2d 293, 297 (1975). The evidence summarized above is
fully sufficient to support the trial court’s finding that
Bailey knowingly and voluntarily waived his Fifth Amendment
rights when he gave his detailed confession to the police. Thus,
the trial court’s denial of Bailey’s suppression motion
was not error.

F. Jury Instructions and
Sentencing Form

In his sixteenth assignment of error, Bailey
contends that the trial court erred during the
guilt-determination phase in giving separate instructions
proffered by the Commonwealth defining capital murder as the
killing of more than one person as a part of the same act or
transaction, Code ? 18.2-31(7), and capital murder as the
killing of a person under the age of fourteen by a person age
twenty-one or older, Code ? 18.2-31(12). Bailey contends
that the instructions were confusing in that they implied to the
jury that "it might convict Bailey of capital murder twice,
even though Bailey had only been indicted on a single count of
capital murder, which set forth disjunctively the two grounds for
the capital murder charge." The Commonwealth contends that
the indictment was worded to permit convictions for two offenses
of capital murder. We agree with the Commonwealth.

In Payne v. Commonwealth, 257 Va. 216,
509 S.E.2d 293 (1999), the defendant was charged in separate
indictments with two offenses of capital murder of one victim.
[5] We held that "it is clear, as well as logical,
that the General Assembly intended for each statutory offense [in
Code ? 18.2-31] to be punished separately ‘as a Class
1 felony.’" Id. at 228, 509 S.E.2d at 301. In
this case, two offenses of capital murder were charged in a
single indictment. This distinction from Payne does not,
however, preclude the conclusion that the indictment charged two
capital murder offenses upon which Bailey could be convicted and

A single indictment may charge "[t]wo or
more offenses . . . if the offenses are based on the
same act or transaction." Rule 3A:6. Contrary to
Bailey’s assertion, the indictment for the capital murder of
Nathan does not charge two offenses of capital murder exclusively
in the disjunctive. Rather, the indictment clearly charges that
the killing occurred as part of the same act or transaction as
the killing of Katherine "and/or" as the killing of a
person under the age of fourteen by a person age twenty-one or
older. Thus, here, as in Payne, the Commonwealth was
entitled to seek a separate conviction and death sentence on each
offense of capital murder charged in the indictment.

In his seventeenth assignment of error, Bailey
contends that the trial court erred in presenting the jury with
verdict forms in the penalty-determination phase that "were
inherently confusing and led to a substantial risk of an
unreasoned and hence arbitrary and capricious jury verdict."
Bailey contends that this is so because the verdict forms set out
three alternative theories under which the jury might find that
the "vileness" predicate would apply.

The Commonwealth contends that because Bailey
proffered no alternative verdict forms, he is deemed to have
waived his objection to the forms used by the trial court. Cf.
Atkins v. Commonwealth, 257 Va. 160, 178 n.8, 510 S.E.2d
445, 456 n.8 (1999). However, unlike the circumstance in Atkins,
where we held that a proffer of alternative verdict forms was
sufficient to preserve an objection even though there was no
express objection to the improper verdict forms proffered by the
Commonwealth, here there is an express objection on the record.
When a principle of law is materially vital to the defendant in a
criminal case, it is reversible error for the trial court to fail
to correct a defective instruction or verdict form when the error
is patent or the subject of a proper objection. Id. at
178, 510 S.E.2d at 456; accord Whaley v. Commonwealth,
214 Va. 353, 355-56, 200 S.E.2d 556, 558 (1973); Bryant v.
, 216 Va. 390, 392-93, 219 S.E.2d 669, 671-72
(1975). Thus, although the better practice would have been for
Bailey to proffer alternative verdict forms, he was not required
to do so in order to preserve his objection.

We agree with the Commonwealth, however, that
the verdict forms in this case were not confusing and did not
misstate the law. The verdict forms merely recited the
alternative findings the jury might make in reaching its
sentencing decision. Thus, unlike the situation in Atkins,
the trial court’s instructions on sentencing and the verdict
forms were in accord with and correctly reflected the law.

G. Sufficiency of the

In his ninth assignment of error, Bailey
contends that the trial court erred in failing to strike the
Commonwealth’s evidence presented during the
guilt-determination phase with respect to the capital murder
charges arising from the killing of Nathan. He asserts that the
Commonwealth’s evidence was insufficient to show that he
acted with premeditation in that killing. In the appeal of his
related convictions, Bailey further contends that the evidence
was insufficient to support his conviction for the first-degree
murder of Katherine, asserting that the evidence showed that he
was "emotionally distraught" and "acted
impulsively and without malice."
We disagree.

The question of premeditation is a question to
be determined by the fact-finder. Peterson v. Commonwealth,
225 Va. 289, 295, 302 S.E.2d 520, 524, cert. denied, 464
U.S. 865 (1983). "To establish premeditation, the intent to
kill need only exist for a moment." Id.

The evidence showed that Bailey acquired the
murder weapon several weeks in advance of the killings and made
elaborate efforts over several months to deflect future suspicion
from himself. From this evidence alone, there can be no doubt
that the murder of Katherine was deliberate and premeditated.

Even accepting Bailey’s contention that
initially he had not considered the impact of Katherine’s
murder on his son and had not intended to kill him also, the
record, including Bailey’s own statement, shows that his
decision to kill his son was not a sudden impulsive act, as he
contends. Rather, the record shows that he took deliberate action
after contemplation, however brief. The evidence in this case is
closely on point with that in Stewart v. Commonwealth, 245
Va. 222, 427 S.E.2d 394, cert. denied, 510 U.S. 848
(1993), where the defendant was convicted of killing his
estranged wife and their infant son. In Stewart, we said
that "evidence that a weapon was placed against a
victim’s head when the fatal shot was fired . . . is
sufficient alone to support a finding that ‘the shot was
fired deliberately and with premeditation.’" Id.
at 240, 427 S.E.2d 406 (citation omitted). The record in this
case shows that Bailey went to Nathan’s bedroom and shot the
child twice in the head at close range. This evidence was
sufficient for the jury to determine that the killing of Nathan
was a deliberate and premeditated act.

In his eighteenth assignment of error, Bailey
contends that the trial court erred in failing to set aside the
death sentences imposed by the jury on the ground that there was
insufficient evidence of vileness in the killing of Nathan. We

Bailey premises his argument on this issue on
his contention that the killing of Nathan was an impulsive act of
misguided compassion. We have already rejected this contention,
finding that there was sufficient evidence of premeditation even
under Bailey’s self-serving characterization of the events.
Similarly, we find sufficient evidence in the record to support
the Commonwealth’s contention that the killing of Nathan was
committed in the course of an aggravated battery and with
depravity of mind. Cf. Walker, 258 Va. at 72, 515
S.E.2d at 575 (multiple gunshot wounds establish aggravated
battery); Stewart, 245 Va. at 246, 427 S.E.2d at 409
(manner of killing and attempts to disguise crime reflect
depravity of mind).

H. Sentence Review

In his nineteenth assignment of error, Bailey
contends that the trial court erred in failing to set aside the
two death sentences on the ground that they were "excessive
and disproportionate" and "imposed under the influence
of passion, prejudice, and other arbitrary factors." These
contentions are reflective of the requirements of Code
? 17.1-313(C)(1) that we determine "[w]hether the
sentence of death was imposed under the influence of passion,
prejudice or any other arbitrary factor" and Code
? 17.1-313(C)(2) that we determine "[w]hether the
sentence of death is excessive or disproportionate to the penalty
imposed in similar cases, considering both the crime and the
defendant." Accordingly, we will address Bailey’s
assignment of error and conduct the review required by statute

Bailey contends that the death sentences were
excessive and disproportionate because the evidence showed that
the capital murder of Nathan did not involve torture or a
predicate felony, and that death was instantaneous. He further
contends that "it was an impulsive killing with a gun,
indistinguishable from literally thousands of gun-related
killings across the country where the punishment is a term of
imprisonment rather than death." We disagree.

Without giving any credence to Bailey’s
unsupported assertion that there are "literally
thousands" of similar murders committed in this country, we
may nonetheless distinguish this crime on several grounds from
the type of impulsive killings to which Bailey alludes. The
forensic evidence that Nathan’s wounds resulted from an
"execution-style" shooting rebuts Bailey’s claim
that the killing was impulsive. Moreover, the evidence amply
supports the conclusion that Bailey planned this killing along
with the killing of Katherine and that he took elaborate steps to
deflect suspicion from himself.

We have examined the records of all capital
murder cases reviewed by this Court, including those cases in
which a life sentence was imposed. We have given particular
attention to those cases in which, as here, the death penalty was
based on the "vileness" predicate alone. Based on this
review, we conclude that Bailey’s death sentences are not
excessive or disproportionate to penalties generally imposed by
other sentencing bodies in the Commonwealth for comparable
crimes. See, e.g., Stewart, 245 Va. at 247,
427 S.E.2d at 410; Davidson v. Commonwealth, 244 Va. 129,
136, 419 S.E.2d 656, 660, cert. denied, 506 U.S. 959
(1992); Buchanan, 238 Va. at 418, 384 S.E.2d at 774.

Bailey makes no particularized argument that
the death sentences were imposed under the influence of passion,
prejudice, or other arbitrary factors. However, within his
argument on disproportionality, Bailey contends that "the
jury’s passions and prejudice had been inflamed by the mere
fact that the killing involved a two-year-old boy." Assuming
this statement is intended to address the review required by Code
? 17.1-313(C)(1), it is merely conclusory and we find
nothing in the record to support it.

Undeniably, the killing of one’s own child
is among the most abhorrent crimes for a jury to contemplate when
considering an appropriate sentence, especially when, as here,
that crime occurs in conjunction with the equally abhorrent crime
of the killing of one’s wife. Nonetheless, the mere fact
that a crime is abhorrent does not raise a presumption that the
jury will be unable to set aside its natural emotions and fairly
consider all the evidence. Our review of this record does not
disclose that the jury failed to give fair consideration to all
the evidence both in favor and in mitigation of the death
sentences, and we find nothing in this record which suggests that
the jury, or the trial court in reviewing the verdicts, imposed
the death sentences under the influence of passion, prejudice, or
other arbitrary factors.


Having reviewed the capital murder convictions,
the death sentences imposed thereon, and the related convictions
and sentences for first-degree murder and the firearm charges, we
find no reversible error in the record, and perceive no reason to
commute the death sentences. For these reasons, we will affirm
the judgment of the trial court.

Record No. 992840 — Affirmed.<