Present: All the Justices 

MICHAEL DAVID CLAGETT 

OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR. 

v. Record Nos. 952162 & 952163 June 7, 1996 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

Edward W. Hanson, Jr., Judge 

 In this appeal, we review the capital murder convictions and 

five death sentences imposed upon Michael David Clagett (Clagett) 

for the murders of Abdelaziz Gren, Wendell Parish, Karen Sue 

Rounds and Lam Van Son. 

 I. 

 PROCEEDINGS

 On October 3, 1994, two indictments were returned against 

Clagett. In the first indictment, Clagett was charged with 

robbery, Code § 18.2-58, use of a firearm in the commission of a 

robbery, Code § 18.2-53.1, four separate counts of capital murder 

during the commission of a robbery, Code § 18.2-31(4), and four 

separate counts of use of a firearm in the commission of murder. 

 Code § 18.2-53.1.1

 In the second indictment, Clagett was 

charged with one count of multiple homicide capital murder. Code 

§ 18.2-31(7). The second indictment predicated the charge of 

multiple homicide capital murder on the killing of all four 

victims as part of the same act or transaction. 

 

 1Clagett's convictions on the lesser offenses were appealed 

to the Court of Appeals; we have certified the record of those 

convictions to this Court and have consolidated it with the 

capital murder appeal. Code § 17-116.06. The first indictment 

also charged Clagett with possession of a handgun after having 

been convicted of a felony. Code § 18.2-308.2. Upon Clagett's 

motion this charge was severed for separate trial and is not part 

of this appeal. 
 A jury trial began on June 26, 1995 and spanned ten trial 

days. At the conclusion of the guilt phase, the jury convicted 

Clagett of all charges. At the conclusion of the penalty phase, 

the jury returned a verdict of five death sentences, based upon a 

finding of both future dangerousness and vileness. The trial 

court entered judgment on the jury verdict. Additional sentences 

totaling 43 years on the lesser charges were also imposed. Other 

aspects of the proceedings relevant to this appeal, in which 

forty assignments of error are made, will be recounted in the 

opinion where specific issues are addressed. 

 II. 

 EVIDENCE 

 Guilt Phase

 We will review the evidence in the light most favorable to 

the Commonwealth, the prevailing party below. Cheng v. 

Commonwealth, 240 Va. 26, 42, 393 S.E.2d 599, 608 (1990). 

Richard T. Reed, a regular patron, arrived at the Witchduck Inn 

(the Inn), a tavern and restaurant in Virginia Beach, about 

midnight on June 30, 1994. Although the Inn usually remained 

open until 2:00 a.m., Reed found that the front door was locked. 

 Reed could hear music playing inside. 

 Although he knew that it would normally be kept locked, Reed 

went to the rear door entrance to the Inn and found it unlocked. 

 Upon entering the Inn, he discovered the bodies of Lam Van Son, 

the Inn's owner, Inn employees Wendell Parish and Karen Sue 

Rounds, and Abdelaziz Gren, an Inn patron. Each victim had been 

shot once in the head. The Inn's cash register was open and 

empty. 
 Based upon information supplied by Denise Holsinger, 

Clagett's girlfriend, Clagett was identified as a suspect in the 

killings. He was arrested on July 1, 1994 on a public 

intoxication charge. Once in custody, Clagett was served with 

arrest warrants for the murders. Clagett confessed to the 

killings, admitting that he and Holsinger had intended to "rob" 

the Inn and that Holsinger had taken approximately $400 from the 

cash register. Additional facts developed during the guilt 

phase of the trial will be recounted later in the opinion. 

 Penalty Phase

 The Commonwealth presented evidence of Clagett's history of 

brutal domestic violence against his former wife. The jury was 

shown two photographs of the wound sustained by Lam Van Son. The 

lead investigator testified that Clagett showed great remorse for 

his acts during his confession. Additional facts developed 

during the penalty phase of the trial will be recounted later in 

the opinion. 

 III. 

 ISSUES WAIVED

 Because Clagett did not address in his brief the issues 

raised in assignments of error 5, 17, 19, 28, 29, and 35 he has 

waived them.2

 Rule 5:27. Also, the argument advanced on appeal 

 

 2These assignments of error are: 

5: Denial of motion to redact statements in confession concerning 

Clagett's intention to pled guilty and his desire to waive his 

right to counsel. 

17: Admission of autopsy reports as duplicative of medical 

examiner's testimony. 

19: Admission of firearm/bullet fragments comparison report as 

duplicative of expert testimony. 

28: Method of selection of alternate jurors. 
with respect to assignment of error 14 relating to the crossexamination of Reed was not made before the trial court; 

accordingly, we will not consider that assignment of error. Rule 

5:25. 

 IV. 

ISSUES PREVIOUSLY DECIDED

 Clagett has raised a number of issues that we have rejected 

in previous decisions. Finding no reason to modify our 

previously expressed views, we reaffirm our earlier decisions and 

reject the following contentions. 

 Clagett requested a bill of particulars which, in effect, 

would have required the Commonwealth to produce all the evidence 

it intended to introduce during the guilt and penalty phases of 

the trial. We have previously held that this is not a proper use 

of a bill of particulars. Quesinberry v. Commonwealth, 241 Va. 

364, 372, 402 S.E.2d 218, 223, cert. denied, 502 U.S. 834 (1991). 

 Clagett requested the assistance of an expert medical 

witness to examine his former spouse in order to refute her 

claims of domestic violence. We have previously held that an 

indigent defendant is not entitled to every resource he requests 

from the trial court. The Commonwealth is required to provide 

only those resources necessary for a basic, adequate defense. 

O'Dell v. Commonwealth, 234 Va. 672, 686, 364 S.E.2d 491, 499, 

cert. denied, 488 U.S. 871 (1988); see also Britt v. North 

Carolina, 404 U.S. 226, 227 (1971). 

(..continued) 

29: Failure to grant motion for mistrial during Commonwealth's 

closing argument. 

35: Permitting the jury to consider evidence of vileness. 
 Clagett sought additional peremptory challenges during jury 

selection. We have repeatedly held that there is no right to 

additional peremptory challenges. See, e.g., Strickler v. 

Commonwealth, 241 Va. 482, 489, 404 S.E.2d 227, 232, cert. 

denied, 502 U.S. 944 (1991). 

 Clagett objected to the introduction of a videotape of a 

news interview he gave to a local reporter on the ground that the 

Commonwealth had failed to show that the reporter was not 

available. The interview was admissible as a party admission, 

and, thus, not subject to exclusion under the hearsay rule. 

Quintana v. Commonwealth, 224 Va. 127, 148, 295 S.E.2d 643, 654 

(1982), cert. denied, 460 U.S. 1029 (1983). 

 Clagett asserts under numerous theories that the Virginia 

death penalty statutes are unconstitutional. We have previously 

addressed each of these contentions, sustaining in each instance 

the constitutionality of our death penalty statutes. See, e.g., 

Breard v. Commonwealth, 248 Va. 68, 74, 445 S.E.2d 670, 674-75, 

cert. denied, ___ U.S. ___, 115 S.Ct. 442 (1994)(meaningful 

guidance to the jury on factors to consider in fixing the death 

penalty); Satcher v. Commonwealth, 244 Va. 220, 228, 421 S.E.2d 

821, 826 (1992), cert. denied, 507 U.S. 933 (1993) (appellate 

review of capital cases is adequate); Stewart v. Commonwealth, 

245 Va. 222, 229, 427 S.E.2d 394, 399-400, cert. denied, 510 U.S. 

___, 114 S.Ct. 143 (1993)(future dangerousness predicate is not 

impermissibly vague); Watkins v. Commonwealth, 229 Va. 469, 

490-91, 331 S.E.2d 422, 438 (1985), cert. denied, 475 U.S. 1099 

(1986)(instructing jury on consideration of mitigating factors). 
 V. 

MATTERS WITHIN THE TRIAL COURT'S DISCRETION 

 A number of the issues raised by Clagett concern rulings 

committed to the trial court's discretion. In each of the 

following instances we find no evidence to support a finding of 

an abuse of that discretion, and, accordingly, we hold that no 

error occurred. 

 The trial court permitted the jury to be shown a videotape 

of the crime scene in which two of the bodies had been moved from 

their original positions by emergency personnel. The trial court 

instructed the jury as to this fact. Accordingly, it was not an 

abuse of discretion to permit the jury to view the videotape. 

Washington v. Commonwealth, 228 Va. 535, 552, 323 S.E.2d 577, 588 

(1984), cert. denied, 471 U.S. 1111 (1985). 

 During the guilt phase, the Commonwealth called Wendy Singer 

as a witness. Clagett objected to her testimony and moved for a 

mistrial on the ground that Singer had been identified as a 

potential witness only shortly before trial and that the 

Commonwealth had indicated that she would be called only during 

the penalty phase. Whether an occurrence at trial "is so 

prejudicial as to require a mistrial is a question of fact to be 

resolved by the trial court in each particular case." Beavers v. 

Commonwealth, 245 Va. 268, 280, 427 S.E.2d 411, 420, cert. 

denied, 510 U.S. ___, 114 S.Ct. 171 (1993). Even accepting 

Clagett's assertions as true, he was nonetheless informed that 

Singer was a potential witness prior to trial. Accordingly, 

there was no prejudice to Clagett. 
 Clagett objected to the introduction of a crime scene 

photograph during redirect examination of the medical examiner. 

On cross-examination of this witness, Clagett had questioned 

whether an examination of the crime scene photographs would have 

been beneficial to her investigation. She conceded that they 

would have been beneficial, but that she had not examined any 

crime scene photographs. On redirect, the Commonwealth produced 

a crime scene photograph and asked whether the position of the 

body of the victim would in some way alter the witness's 

conclusions in her report. Clagett asserted that the admission 

of the photograph was erroneous in that it was duplicative and 

that the gruesomeness of the photograph was prejudicial. He 

raised a similar objection to the introduction of the two 

photographs showing the wounds of Lam Van Son during the penalty 

phase. Clagett further objected to the form and size of certain 

photographs introduced. 

 The admission into evidence of photographs of the body of a 

murder victim is left to the sound discretion of the trial court 

and will be disturbed only upon a showing of a clear abuse of 

discretion. Williams v. Commonwealth, 234 Va. 168, 177, 360 

S.E.2d 361, 367 (1987), cert. denied, 484 U.S. 1020 (1988). A 

graphic photograph is admissible so long as it is relevant and 

accurately portrays the scene of the crime. Washington v. 

Commonwealth, 228 Va. at 551, 323 S.E.2d at 588; see also Clozza 

v. Commonwealth, 228 Va. 124, 135, 321 S.E.2d 273, 280 (1984), 

cert. denied, 469 U.S. 1230 (1985). 

 Clagett objected to the introduction of Commonwealth's 
exhibit 42, a photograph of money taken from him at the time of 

his arrest, on the ground that the officer could not positively 

identify the money as that taken from Clagett. "We have long 

recognized and admitted photographs . . . by holding that a 

photograph which is verified by the testimony of a witness as 

fairly representing what the witness has observed is admissible 

in evidence." Ferguson v. Commonwealth, 212 Va. 745, 746, 187 

S.E.2d 189, 190, cert. denied, 409 U.S. 861 (1972). Here, the 

officer who seized the items was able to identify a distinctive 

key ring in an accompanying photograph as having been one taken 

from Clagett and photographed at the same time as the money taken 

from him. This testimony was adequate to establish the 

authenticity of the representation of the photograph. 

 During the penalty phase, Clagett repeatedly objected to the 

testimony of his former wife regarding his propensity to extreme 

domestic violence. The trial court sustained one such objection 

and Clagett then sought a mistrial. As noted above, the granting 

of a mistrial is a matter within the trial court's discretion. 

Beavers, 245 Va. at 280, 427 S.E.2d at 420. We cannot say that 

the trial court erred in determining that the Commonwealth's 

actions were not so prejudicial as to warrant a mistrial.3

 VI. 

 PRE-TRIAL ISSUES

A. Suppression of post-arrest statements 

 

 3On brief, Clagett attempts to relate the single sustained 

objection to the entire testimony of his former wife. That 

argument was not made below and will not be considered for the 

first time of appeal. Rule 5:25. 
 Clagett sought to suppress his post-arrest statements on the 

ground that his arrest was pretextual. Clagett was arrested for 

public intoxication after he was discovered "passed out" in the 

shrubbery of an apartment complex by an officer responding to a 

citizen complaint. While the arresting officer was aware that 

Clagett was the subject of a "be on the lookout" notice to notify 

the detective unit if he was found, the record adequately 

supports the trial court's factual finding that the officer had 

probable cause to arrest Clagett on the public intoxication 

charge. See Watkins, 229 Va. at 477, 331 S.E.2d at 429-30. 

 B. Failure of Commonwealth to disclose certain statements 

 At the suppression hearing, the arresting officer was 

permitted, without objection, to refresh her memory by examining 

an investigation memorandum prepared following the arrest. 

During cross-examination, it was determined that the officer 

prepared this memorandum using handwritten notes taken at the 

time of Clagett's arrest. Clagett then requested that these 

notes be produced for his examination. At the request of the 

trial court, the officer retrieved her notes which were examined 

by the Commonwealth. The Commonwealth represented to the trial 

court that no statements made by Clagett or other potentially 

exculpatory evidence were contained within the notes and, on that 

basis, the trial court denied Clagett's request to review the 

notes. 

 Clagett also sought disclosure of statements made by 

Holsinger. The Commonwealth represented that her statements were 

wholly inculpatory and did not offer any exculpatory benefit to 
Clagett. The trial court denied Clagett's request. Holsinger 

did not testify at Clagett's trial. 

 In neither instance did the trial court review the material, 

nor did Clagett request that the trial court undertake an in 

camera review. The notes and the statement were not made a part 

of the record. Accordingly, we must limit our review to the 

rulings made by the trial court based upon the representations of 

the Commonwealth. 

 There is no general right to discovery of witness 

statements, reports, or other memoranda possessed by the 

Commonwealth. Bunch v. Commonwealth, 225 Va. 423, 436, 304 

S.E.2d 271, 278, cert. denied, 464 U.S. 977 (1983); see also

Spencer v. Commonwealth, 238 Va. 295, 303, 384 S.E.2d 785, 791 

(1989), cert. denied, 493 U.S. 1093 (1990). Because the 

requested documents were represented as having no exculpatory 

material, and nothing in the record before us contradicts those 

representations, we hold that the trial court properly denied 

Clagett's requests in these two instances. 

 VII. 

VOIR DIRE ISSUES

A. Proposed question for the jury panel 

 During voir dire, Clagett sought to ask the members of the 

venire if they would automatically impose the death penalty even 

if they accepted Clagett's theory of the case. The trial court 

ruled that this was not the proper inquiry. The trial court 

instead permitted the members of the venire to be asked whether 

they would automatically impose the death penalty "no matter what 
the facts were." See Morgan v. Illinois, 504 U.S. 719, 723 

(1992). We hold this inquiry was adequate to assure the removal 

of those jurors who would invariably impose capital punishment. 

Turner v. Commonwealth, 221 Va. 513, 523, 273 S.E.2d 36, 42-43 

(1980), cert. denied, 451 U.S. 1011 (1981); see also Mueller v. 

Commonwealth, 244 Va. 386, 400-01, 422 S.E.2d 380, 390 (1992), 

cert. denied, 507 U.S. 1043 (1993). 

B. Juror disqualification 

 Clagett further challenges the trial court's refusal to 

remove for cause three veniremen. During voir dire, Gordon 

Holmes stated that it was "silly" of Clagett to confess "at the 

early stages of the charges." Holmes later stated, however, that 

he did not know Clagett's state of mind at the time of his 

confession and twice stated that he could base his verdict solely 

upon the evidence presented in the trial. Holmes was selected as 

a member of the jury. 

 Responding to a lengthy question posed by Clagett containing 

hypothetical facts similar to the case, Steve Gunby stated that 

he would impose the death penalty without considering a sentence 

of life imprisonment. When questioned further by the 

Commonwealth, Gunby stated that he had misunderstood the question 

and that he could consider imposition of life imprisonment. The 

defense used one of its peremptory strikes to remove Gunby from 

the panel. 

 Thomas Dillon initially indicated that in order to consider 

a sentence of life imprisonment, he would require the defense to 

present mitigating evidence. The trial court explained to Dillon 
that the defense could not be required to present such evidence. 

 Dillon then stated, in response to a further question from 

Clagett, that he could decide the issue "based on what's put in 

front of me throughout this process and on the instructions of 

the court." The defense used one of its peremptory strikes to 

remove Dillon from the panel. 

 In each instance, Clagett confines his argument to a 

discrete portion of the examination of each juror. We must 

consider the voir dire as a whole, not just isolated statements. 

Mackall v. Commonwealth, 236 Va. 240, 252, 372 S.E.2d 759, 767 

(1988), cert. denied, 492 U.S. 925 (1989). The trial court's 

decision whether to strike a juror for cause is a matter 

submitted to its discretion and will not be disturbed on appeal 

unless the refusal constitutes manifest error. Stockton v. 

Commonwealth, 241 Va. 192, 200, 402 S.E.2d 196, 200, cert. 

denied, 502 U.S. 902 (1991). In the present case, the trial 

court had the opportunity to observe each juror's demeanor when 

evaluating his responses to the questions of counsel and the 

instructions of the court. Nothing in the record suggests that 

the trial court abused its discretion in refusing to strike these 

jurors for cause. 

 VIII.

GUILT PHASE ISSUES 

A. Evidence of prior criminal acts 

 Clagett objected to the introduction of portions of his 

post-arrest statement in which he discusses his prior criminal 

history. Assuming, without deciding, that such evidence was not 
admissible to show the voluntariness of the statement as the 

Commonwealth asserts, but see Williams v. Commonwealth, 11 Va. 

App. 149, 152, 396 S.E.2d 860, 862 (1990), we hold that its 

introduction was harmless beyond any reasonable doubt. The trial 

court gave a proper limiting instruction which the jury is 

presumed to have followed. LeVasseur v. Commonwealth, 225 Va. 

564, 589, 304 S.E.2d 644, 657 (1983), cert. denied, 464 U.S. 1063 

(1984). Moreover, the evidence adduced against Clagett was 

overwhelming, precluding the possibility that any prejudice which 

might have resulted from the introduction of prior criminal 

history evidence could have improperly influenced the jury's 

decision-making process. See Goins v. Commonwealth, 218 Va. 285, 

288, 237 S.E.2d 136, 138 (1977). 

B. Testimony of John Ward 

 Firearms expert John Ward testified that he was able to make 

determinations of gunshot distances and residue. Clagett 

objected that this evidence had not been disclosed prior to trial 

and sought a mistrial. We hold that the trial court properly 

ruled that Clagett had been given an opportunity to interview 

Ward prior to trial, and since the portion of Ward's testimony to 

which Clagett objected was not part of Ward's written report, his 

findings were not subject to disclosure under Rule 3A:11. See

O'Dell, 234 Va. at 682-83 and n.3, 364 S.E.2d at 497 and n.3. 

C. Testimony of Sonja Moore 

 After testifying for the Commonwealth, forensic witness 

Sonja Moore overheard Clagett's lawyers discussing a factual 

misstatement she had made in her testimony. Afterwards she 
reported her error to the Commonwealth's Attorney, who recalled 

Moore to the stand so that she might correct her testimony. 

Clagett objected to the trial court's permitting Moore to be 

recalled. We hold that the trial court did not abuse its 

discretion in permitting the Commonwealth to recall this witness 

to correct or explain prior testimony. See Quintana, 224 Va. at 

142, 295 S.E.2d at 650 (sustaining introduction of evidence in 

rebuttal phase of case more appropriately introduced as part of 

case-in-chief); Hargraves v. Commonwealth, 219 Va. 604, 608, 248 

S.E.2d 814, 817 (1978)(permitting Commonwealth to reopen case 

after it rested and court heard defendant's motion to strike 

Commonwealth's evidence). 

 Clagett further asserted that the basis for Moore's 

knowledge of the error impinged upon the attorney-client 

privilege. Assuming, without deciding, that the communication 

was one which would be entitled to protection, the privilege is 

waived where the communication takes place under circumstances 

such that persons outside the privilege can overhear what is 

said. See Cook v. Hayden, 183 Va. 203, 224, 31 S.E.2d 625, 

633-34 (1944). Nothing in the record indicates that Moore 

overheard the attorneys' conversation intentionally or 

surreptitiously. Accordingly, the trial court did not err in 

permitting Moore to be recalled to the stand. 

D. Corroboration of confession 

 Clagett moved to strike the charges of robbery and capital 

murder during the commission of a robbery on the ground that 

there was no corroborating evidence of the robbery to support the 
confession. "When, as here, the commission of the crime has been 

fully confessed by the accused, only slight corroborative 

evidence is necessary to establish the corpus delicti." Clozza, 

228 Va. at 133, 321 S.E.2d at 279. Here, in addition to 

Clagett's admission that Holsinger had taken the money from the 

cash register, the evidence showed that the main entrance to the 

Inn was locked when it would normally have been open; the rear 

entrance was open when it would normally have been locked; the 

cash drawer of the register was open and empty; and the owner and 

three other persons were found murdered at the scene. These 

facts provide the necessary corroborative evidence that the crime 

of robbery had been committed. Accordingly, the trial court did 

not err in failing to strike the robbery charge. 

 Clagett further asserted that there was no evidence to 

corroborate his confessed role as the triggerman. In addressing 

a similar contention in Roach v. Commonwealth, 251 Va. 324, 468 

S.E.2d 98 (1996), we said: 

 The Commonwealth need not corroborate an entire 

confession, but it must corroborate the elements of the 

corpus delicti. In the present case, the Commonwealth 

met its burden of corroborating the corpus delicti of 

capital murder. 

 The corpus delicti of a homicide consists of 

"proof of the victim's death from the criminal act or 

agency of another person." 

Id. at 344, 468 S.E.2d at 110 (quoting Swann v. Commonwealth, 247 

Va. 222, 236, 441 S.E.2d 195, 205, cert. denied, ___ U.S. ___, 

115 S.Ct. 234 (1994)). 

 As in Roach, the Commonwealth produced evidence that the 

killings were not accidental or self-inflicted, but were the act 
of some criminal agent, and that the confessed triggerman 

possessed a weapon and ammunition consistent with the type used 

to commit the murders. Moreover, the record is totally devoid of 

any evidence that Holsinger, the only other criminal actor 

present, was potentially the triggerman. A defendant's 

hypothesis negating the Commonwealth's theory of the case must be 

supported by some evidence in the record and may not arise from 

the imagination of the defendant or his counsel alone. See Goins 

v. Commonwealth, 251 Va. 442, 467, ___ S.E.2d ___, ___ (1996); 

Graham v. Commonwealth, 250 Va. 79, 85-86, 459 S.E.2d 97, 100 

(1995). Because the Commonwealth sufficiently corroborated the 

corpus delicti of capital murder and the predicate felony of 

robbery, the trial court did not err in failing to strike the 

capital murder charges. 

E. Sufficiency of the evidence 

 After the return of the verdicts, Clagett moved the trial 

court to set aside the verdicts as contrary to the law and 

evidence. As the evidence already recounted in this opinion 

shows, Clagett's guilt is not in question when the facts are 

viewed in a light favorable to the Commonwealth. The trial court 

properly denied the motion to set aside the verdicts. 

 IX. 

JURY INSTRUCTION ISSUES

 A. Flight 

 Clagett objected to the Commonwealth's instruction no. 21 

relating to flight as evidence of guilt. The evidence at trial 

showed that Clagett and Holsinger left Virginia Beach and drove 
to North Carolina, disposing of evidence along the way. Clagett 

maintained at trial that his voluntary return to Virginia Beach 

within one day negated evidence of flight. We disagree. 

 Flight following the commission of a crime is evidence of 

guilt, and the jury may be so instructed. Boykins v. 

Commonwealth, 210 Va. 309, 313-14, 170 S.E.2d 771, 774 (1969); 

Carson v. Commonwealth, 188 Va. 398, 408, 49 S.E.2d 704, 708 

(1948). Flight is not limited to physically leaving a 

jurisdiction for an extended period, but includes the taking of 

any action, even of short duration, intended to disguise one's 

identity and distance oneself from the crime. See Edmondson v. 

Commonwealth, 248 Va. 388, 390-91, 448 S.E.2d 635, 637 (1994)(use 

of false name constitutes flight). Viewed in the light most 

favorable to the Commonwealth, Clagett's trip to North Carolina, 

though brief, was taken with the purpose of concealing his 

identity as the perpetrator, and, thus, constituted flight. 

Accordingly, there was no error in giving instruction no. 21. 

B. Circumstantial evidence 

 Clagett also objected to the denial of his instruction no. 

A-1, a standard instruction concerning the weight to be given 

circumstantial evidence. Assuming, without deciding, that 

Clagett is correct that the Commonwealth's case, apart from 

Clagett's confession, rests solely on circumstantial evidence, we 

hold that other instructions given by the trial court adequately 

address the standard to be applied to circumstantial evidence. 

Howard v. Commonwealth, 210 Va. 674, 679, 173 S.E.2d 829, 833 

(1970). 
 X. 

PENALTY PHASE ISSUES

A. Jury inquiry 

 During deliberation on the punishment for the non-capital 

offenses, the jury submitted a two-part question to the trial 

court asking it to define a life sentence with respect to the 

effect of parole and asking whether mandatory sentences were 

served concurrently or consecutively. The trial court responded 

that the jury should "impose such punishment" it felt the 

evidence warranted and "not to concern [itself] with what might 

happen afterwards." Clagett objected, stating that the jury 

"should be instructed that the [mandatory] sentences have to run 

consecutively." The trial court's answer to the jury was 

appropriate. Poyner v. Commonwealth, 229 Va. 401, 418-19, 329 

S.E.2d 815, 828, cert. denied, 474 U.S. 865 and 474 U.S 888 

(1985). Moreover, "we have consistently rejected efforts to 

permit jurors to consider a defendant's parole eligibility or 

ineligibility." Joseph v. Commonwealth, 249 Va. 78, 83-84, 452 

S.E.2d 862, 866, cert. denied, ___ U.S. ___ 116 S.Ct. 204 (1995). 

 Relying on Simmons v. South Carolina, 512 U.S. ___, 114 

S.Ct. 2187 (1994), Clagett asserts that the jury should have been 

instructed regarding parole eligibility. Clagett failed to 

establish and the record does not show that he was parole 

ineligible. Therefore, Simmons does not apply. Roach, 251 Va. 

at 346, 468 S.E.2d at 111. 

B. Limitation of cross-examination 

 The trial court sustained the Commonwealth's objection to 
Clagett's attempt to cross-examine the lead investigator 

concerning Holsinger's remorse for her part in the crime. As 

Clagett failed to proffer the testimony he expected to elicit, we 

will not consider this issue on appeal. Mackall, 236 Va. at 256-

57, 372 S.E.2d at 769. 

 XI. 

DOUBLE JEOPARDY SENTENCING ISSUE

 Clagett asserts, and the Commonwealth concedes, that he has 

been impermissibly punished with five death sentences for four 

homicides. Such a circumstance presents an unusual case for the 

application of the double jeopardy doctrine. Generally, a 

defendant cannot be placed in jeopardy more than once for a 

single criminal act. However, the state may, under one or 

multiple indictments, charge a defendant using multiple theories 

concerning the same crime or greater and lesser crimes arising 

out of the same act or transaction. In such cases, the 

prohibition against "multiple prosecution" double jeopardy does 

not apply so long as the defendant is arraigned and tried in a 

single proceeding. See Blythe v. Commonwealth, 222 Va. 722, 725, 

284 S.E.2d 796, 797-98 (1981); United States v. Quinones, 906 

F.2d 924, 928 (2d Cir. 1990), cert. denied, 498 U.S. 1069 (1991). 

 When so prosecuted, the accused cannot be subjected to more than 

one conviction and punishment for each discrete criminal act. 

Ohio v. Johnson, 467 U.S. 493, 500 (1984); Blythe, 222 Va. at 

725, 284 S.E.2d at 797-98. 

 In Buchanan v. Commonwealth, 238 Va. 389, 384 S.E.2d 757 

(1989), cert. denied, 493 U.S. 1063 (1990), we addressed a case 
of "multiple punishment" double jeopardy. There we held that an 

excess conviction must be set aside and its related sentence 

vacated. Id. at 414-15, 384 S.E.2d at 772-73; see also Williams 

v. Commonwealth, 248 Va. 528, 547, 450 S.E.2d 365, 377 (1994), 

cert. denied, ___U.S.___, 115 S.Ct. 2616 (1995); Morris v. 

Commonwealth, 228 Va. 206, 209, 321 S.E.2d 633, 634-35 (1984). 

Although Buchanan dealt with greater and lesser degrees of 

homicide, we believe that the same rationale should apply to 

cases where the convictions are for crimes of equal magnitude. 

 In this case, each of the convictions for capital murder 

during the commission of a robbery may stand on its own. The 

conviction for multiple homicide capital murder, although of 

equal magnitude, is derivative of the other four. Accordingly, 

we will vacate the conviction and the corresponding sentence for 

that crime. See Buchanan, 238 Va. at 415, 384 S.E.2d at 773; 

Brown v. Commonwealth, 222 Va. 111, 116, 279 S.E.2d 142, 145 

(1981). 

 XII. 

 SENTENCE REVIEW

 Under Code § 17-110.1(C)(1) and (2), we are required to 

determine "[w]hether the sentence of death was imposed under the 

influence of passion, prejudice or any other arbitrary factor" 

and "[w]hether the sentence of death is excessive or 

disproportionate to the penalty imposed in similar cases, 

considering both the crime and the defendant." 

 Clagett contends that the sentence of death was imposed 

under the influence of passion, prejudice, or other arbitrary 
factor. In support of his contention, Clagett asserts that 

"[t]he scarcity of any reliable evidence . . . and the numerous 

errors made by the trial court . . . dictate that the jury's 

recommendation be vacated. The probability of prejudice and 

emotion taking their toll on the jury was great." Since we have 

found no error in the trial court's rulings, we reject this 

argument. See Pope v. Commonwealth, 234 Va. 114, 127, 360 S.E.2d 

352, 360 (1987), cert. denied, 485 U.S. 1015 (1988); Wise v. 

Commonwealth, 230 Va. 322, 335, 337 S.E.2d 715, 723 (1985), cert. 

denied, 475 U.S. 1112 (1986). Additionally, our independent 

review of the entire record fails to disclose that the jury's 

death sentence "was imposed under the influence of passion, 

prejudice or any other arbitrary factor." Code § 17-110.1(C)(1). 

 In conducting the excessiveness and proportionality review, 

we consider "whether other sentencing bodies in this jurisdiction 

generally impose the supreme penalty for comparable or similar 

crimes, considering both the crime and the defendant." Jenkins 

v. Commonwealth, 244 Va. 445, 461, 423 S.E.2d 360, 371 (1992), 

cert. denied, 507 U.S. 1036 (1993). With this purpose in mind, 

we have compared the record in this case with the records in 

other capital murder cases, including those in which imprisonment 

for life was imposed, to determine whether the death penalty 

imposed here is "excessive or disproportionate to the penalty 

imposed in similar cases, considering both the crime and the 

defendant." Code § 17-110.1(C)(2). 

 Clagett asserts that his case and background "pale by 

comparison" with virtually every case referenced in his argument 
and that the death sentences recommended by the jury are, thus, 

disproportionate. Considering the nature of the crime and the 

evidence presented during the guilt and penalty phases of the 

trial, we conclude that juries in Virginia customarily impose the 

death sentence for conduct similar to Clagett's. See Stamper v. 

Commonwealth, 220 Va. 260, 257 S.E.2d 808 (1979), cert. denied, 

445 U.S. 972 (1980)(capital murder/robbery of multiple victims; 

three death sentences based solely upon future dangerousness 

predicate); see also Peterson v. Commonwealth, 225 Va. 289, 302 

S.E.2d 520, cert. denied, 464 U.S. 865 (1983)(capital 

murder/robbery; victim shot once in abdomen; death penalty based 

on future dangerousness); Quintana, 224 Va. 127, 295 S.E.2d 643 

(capital murder/robbery; death penalty based on vileness and 

future dangerousness); Clanton v. Commonwealth, 223 Va. 41, 286 

S.E.2d 172 (1982)(capital murder/robbery; death penalty based on 

vileness and future dangerousness); Turner v. Commonwealth, 221 

Va. 513, 273 S.E.2d 36 (1980), cert. denied, 451 U.S. 1011 

(1981)(capital murder/robbery; death penalty based on vileness 

and future dangerousness). 

 XIII. 

 CONCLUSION 

 Apart from the conviction and sentence for multiple homicide 

capital murder, we find no error in the rulings of the trial 

court and no reason to commute the four sentences of death for 

capital murder during the commission of a robbery. Accordingly, 

we will vacate the conviction and sentence for multiple homicide 

capital murder and affirm the remainder of the judgment of the 
trial court including each of the four convictions for capital 

murder during the commission of a robbery and the corresponding 

death sentences. 

Record No. 952162 -- Modified and affirmed, as modified.

 Record No. 952163 -- Affirmed.