Present: Hassell, C.J., Lacy, Koontz, Kinser, and Lemons, 

JJ., and Carrico* and Stephenson, S.JJ. 

JUSTIN MICHAEL WOLFE 

v. Record No. 021872 

COMMONWEALTH OF VIRGINIA 

OPINION BY CHIEF JUSTICE LEROY R. HASSELL, SR. 

 February 28, 2003 

JUSTIN MICHAEL WOLFE 

v. Record No. 022194 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY 

Herman A. Whisenant, Jr., Judge 

 In these appeals, we review the capital murder 

conviction, sentence of death, and related convictions imposed 

upon Justin Michael Wolfe. 

I. 

 The defendant was tried before a jury on indictments for 

the following offenses: the capital murder of Daniel Robert 

Petrole, Jr., in violation of Code § 18.2-31(2), the willful, 

deliberate, and premeditated killing of any person by another 

for hire; use of a firearm in the commission of a felony in 

violation of Code § 18.2-53.1; and conspiracy to distribute 

marijuana in violation of Code §§ 18.2-248.1 and -256. The 

jury found the defendant guilty of these crimes and fixed his 

 * Chief Justice Carrico presided and participated in the 

hearing and decision of this case prior to the effective date 

of his retirement on January 31, 2003. 
punishment at 30 years imprisonment for the drug charges and 

three years imprisonment for the use of a firearm. 

 In the penalty phase of the capital murder trial, the 

jury fixed the defendant's punishment at death, finding that 

he represented a continuing serious threat to society and that 

his offense was outrageously or wantonly vile, horrible, or 

inhuman in that it involved an aggravated battery to the 

victim. After considering a report prepared by a probation 

officer pursuant to Code § 19.2-299, the circuit court 

sentenced the defendant in accordance with the jury verdicts. 

 We consolidated the automatic review of the defendant's 

death sentence with the appeal of his capital murder 

conviction, and the defendant's appeal of his non-capital 

convictions was certified from the Court of Appeals. We have 

consolidated the defendant's appeal of his non-capital 

convictions with his capital murder appeal, and we have given 

these appeals priority on our docket. 

II. 

 In accordance with well-established principles of 

appellate review, we will review the evidence in the light 

most favorable to the Commonwealth, the prevailing party 

below. Zirkle v. Commonwealth, 262 Va. 320, 323, 551 S.E.2d 

601, 602 (2001). 

2
 The defendant was a major drug dealer in Northern 

Virginia. He regularly sold high-grade marijuana, referred to 

as "kind bud" or "chronic," for a price between $4,200 and 

$5,000 per pound. His marijuana supplier was Daniel Robert 

Petrole, Jr., who began to supply marijuana to defendant in 

November 2000, seven months before he was murdered. 

 Petrole, a major drug supplier of high-grade marijuana in 

Northern Virginia, regularly purchased about 100 pounds of 

marijuana per month at a price of $360,000. Petrole usually 

sold the defendant between eight and 18 pounds of marijuana 

every two weeks. The defendant described Petrole as his 

"chronic man." 

 In furtherance of their drug activities, the defendant 

and Petrole utilized an informal system of credit described as 

"fronting." When Petrole sold the defendant marijuana, the 

defendant gave Petrole a quantity of cash as a down payment, 

and the defendant paid the balance when he received proceeds 

from the sales of marijuana to others. Petrole maintained a 

record of sales of marijuana to dealers such as the defendant, 

and payments made by those dealers, on documents commonly 

known as "owe sheets." The "owe sheets" contained the amounts 

of the debts that drug dealers owed to Petrole. On occasions, 

the defendant owed Petrole as much as $100,000. An "owe 

sheet" that was discovered on Petrole's body the night he was 

3
murdered indicated that the defendant owed Petrole more than 

$60,000. 

 The defendant and his friends, T. Jason Coleman and Chad 

E. Hough, had discussions about robbing drug dealers. On one 

occasion, the defendant, Hough and Coleman planned to rob a 

drug dealer at a location in Washington, D.C., but after they 

conducted surveillance of the planned location of the robbery, 

they concluded that the extensive level of security at the 

location rendered their plan too risky. 

 Janelle E. Johnson, Coleman's wife, testified that in the 

winter of 2000, the defendant and Coleman discussed committing 

a burglary or stealing money from another drug dealer who sold 

marijuana in Northern Virginia. In furtherance of this plan, 

the defendant and Coleman purchased ski masks and duct tape. 

 Hough testified that he and the defendant "talked about 

performing robberies most of the time. Almost every time we 

got together, it was usually some type of robbery connected 

with drugs." In January or February 2001, the defendant asked 

Hough if he "wanted to maybe be in on making some money, and 

[the defendant] mentioned . . . that [Hough] could . . . make 

some money by taking [part] in a robbery . . . ." The 

defendant wanted Hough to rob a drug dealer when the defendant 

was "making a buy." The defendant wanted Hough to follow the 

drug dealer and rob him. The defendant did not mention the 

4
drug dealer's name, but Hough concluded that the defendant 

wanted Hough to rob the defendant's drug supplier. 

 Owen M. Barber, IV, and the defendant had been "good 

friends" for six or seven years. Barber, who was also a drug 

dealer, purchased low-quality marijuana, referred to as 

"shwag." Occasionally, he sold pounds of marijuana to the 

defendant. The defendant asked Barber if he "wanted to get 

[the defendant's] chronic man." The defendant stated that 

Barber must not merely rob his "chronic man," but that Barber 

must shoot him because Petrole knew too many people. Barber 

testified as follows: 

 "Q: [D]id there come a point in time when you 

had a discussion concerning [the defendant's] 

supplier of chronic or kind bud [marijuana]? 

 "A: Yeah. It was one day when we were at [a 

restaurant] just drinking and [the defendant] asked 

me if I wanted to get his chronic man. 

 "Q: Get the chronic man? 

 "A: Yeah. And I was like, yeah, you know, 

we'll just rob him or whatever. And I was like, all 

right, you know and then he said, no, no you can't 

rob him. He was like, we got to shoot him because 

he knows too many people. 

 "Q: He knows too many people? 

 "A: Yeah. 

 "Q: At that point in time, did he tell you who 

his chronic man was? 

 "A: Yeah. 

5
 "Q: Who was it? 

 "A: He said Danny Petrole. 

 "Q: Had you known Danny Petrole prior to that 

time? 

 "A: No. I knew the name. I didn't know him 

like personally." 

This conversation occurred in late February or early March, 

2001. 

 The "next couple of days" after the defendant and Barber 

had the conversation about robbing and killing Petrole, the 

defendant and Barber planned how they "could do it and how 

[they would] have to find him or . . . follow him or catch him 

alone." On one occasion, the defendant and Barber went to 

Petrole's apartment in Washington, D.C. to determine if it was 

feasible to kill him at that location. The owner of the 

apartment building employed a doorman, and the defendant and 

Barber concluded that they should not kill Petrole at that 

location. 

 Subsequently, the defendant and Barber made another 

attempt to locate and kill Petrole. The defendant made a 

telephone call to Petrole one night, and Petrole informed the 

defendant that Petrole intended to attend a class at the 

Northern Virginia Community College campus in Arlington or 

Annandale, Virginia. Barber was not sure of the specific 

campus where Petrole attended community college. The 

6
defendant and Barber got in Barber's car and traveled to the 

campus. They "drove around the parking lot" looking for 

Petrole's car, but they were unable to find it. 

 On another occasion, the defendant spoke with Petrole, 

who informed the defendant that he (Petrole) planned to eat 

dinner at a restaurant in Washington, D.C. The defendant and 

Barber traveled to the restaurant in search of Petrole. 

Barber testified that they "went and looked for him at the 

restaurant . . . and we didn't see him. Then we went back and 

we waited in the parking lot . . . behind his building." 

Barber and the defendant did not find Petrole that evening. 

Barber and the defendant concluded that they were going to 

kill Petrole if he returned to his apartment that night. If 

he did not return to his apartment, they were going to wait 

until they had another opportunity to kill him. 

 During the next several days, Barber and the defendant 

continued to discuss their plan to kill Petrole. On March 15, 

2001, the defendant placed a telephone call to Barber, who was 

with a friend, Robert H. Martin, Jr. The defendant directed 

Barber to meet the defendant at a restaurant in Fairfax 

County. Barber and Martin went to the restaurant, and Barber 

and the defendant spoke alone in a parking lot. The defendant 

informed Barber that the defendant had spoken to Petrole, and 

the defendant planned to meet him that night. Petrole had 

7
agreed to bring a large quantity of high-grade marijuana to an 

apartment that the defendant shared with his girlfriend, 

Regina A. Zuener. 

 The defendant and Barber agreed that Barber would follow 

Petrole once he left Zuener's apartment. Barber returned to 

the car where Martin had waited, and they went to Barber's 

apartment. About an hour later, the defendant, using his 

cellular telephone, called Barber to inform him that Petrole 

was "on his way" to Zuener's apartment. Barber called the 

defendant and inquired whether Petrole had arrived, and the 

defendant informed Barber that Petrole had not. 

 Barber asked Martin if he wanted to accompany Barber "on 

this thing [Barber] had to do," but Martin refused. Barber 

testified as follows: "I think I told [Martin], you know, 

I've got to go do this thing and he was like – he said he was 

[willing] to beat him up or to rob him or whatever. And I was 

like, no, you know, it's more than that. He's like, no, no, 

I'm not going to do it. I'll let you have my car, but I'm not 

going to do it." Barber wanted to use Martin's car to travel 

to Zuener's house so that he could rob and kill Petrole 

because Barber's car was too distinctive. Barber's car was 

equipped with racing tires and a large noisy engine. 

 Barber, armed with a Smith & Wesson nine millimeter 

pistol that he had purchased from Coleman, got into Martin's 

8
car and drove to a cul-de-sac at the end of a street near 

Zuener's apartment. Petrole arrived at Zuener's apartment in 

Centreville. The defendant, Jennifer E. Pascquierllo, 

Nicholas Soto, and Coleman were present. Petrole knocked on 

the door, and Zuener let him in. Petrole was carrying a large 

black duffel bag filled with high-grade marijuana. Petrole 

and the defendant went upstairs to a bedroom. Later, Zuener 

went to the bedroom where she observed a large drug 

transaction occur between Petrole and the defendant. She saw 

between 10 and 15 pounds of high-grade marijuana on her bed. 

Petrole had a large amount of money. The marijuana was 

packaged in separate bags, weighing approximately one pound 

each. When the drug transaction was completed, the defendant 

and his friends went to a nightclub, and Petrole left the 

apartment and got in his car. 

 As Petrole began to drive his car, unbeknownst to him, 

Barber followed Petrole as he drove through Fairfax County. 

Petrole parked his car in front of a house in Fairfax County 

and went inside. Barber, using his cellular telephone, called 

the defendant and informed him that Petrole "went into some 

house in Fairfax City." Later, Petrole got back in his car 

and drove off as Barber continued to follow him. While 

following him, Barber temporarily lost sight of Petrole's car, 

but managed to locate it and continued to follow him. Petrole 

9
drove his car to a neighborhood where he had recently 

purchased a townhouse and parked his car. Barber stopped the 

car he was driving and "jumped out." Barber stated, "I shot 

him across through the passenger side window and the[n] jumped 

back in the car and turned around and then left out with . . . 

my lights off." Barber shot Petrole 10 times, and he was five 

or six feet from the victim when he discharged the pistol. 

Barber damaged Martin's car during the murder. As Barber sped 

away, he tossed the pistol and gloves he used out of the car 

window. 

 Issa Hassan, Walter P. Gunning, Jr., and Jeanette 

Lorentzen were in Petrole's townhouse when they heard noises 

and ran to the window. They observed a red Ford Escort as it 

"sped off real fast and turned its lights as it turned around 

the corner." Issa Hassan went outside, and he saw Petrole 

seated in the driver's seat of the car. Hassan opened the 

door and shook Petrole. Petrole's neck was "flimsy," and he 

did not have a pulse. The car's windows were shattered, and 

there was "glass everywhere in the car." 

 Police officers responded to the scene of the murder and 

found $965 on the victim's body. The police officers found 

$17,460 in United States currency in the victim's duffel bag 

located in the trunk of his vehicle. The police officers 

searched the victim's house and found approximately $120,000 

10
cash, 46 pounds of high-grade marijuana, which was "vacuum 

packed" in plastic bags, 4,000 tablets of metholanedioxine, an 

amphetamine, also known as Ecstasy, and an "owe sheet." 

 Gunning, Petrole's roommate, testified that Petrole was 

angry with the defendant because he owed Petrole over $66,000 

and that the defendant had taken "a little longer than what he 

expected to pay him back." 

 Dr. Frances P. Field, an assistant medical examiner, 

conducted an autopsy upon Petrole's body. She gave the 

following testimony. The victim had nine gunshot wounds in 

his body. One bullet penetrated the victim's spinal column 

and severed the spinal cord. Bullets damaged the victim's 

ribs, abdomen, liver, kidney, large intestines, small 

intestines, aorta, lung, and chest. Dr. Field opined that the 

defendant's death was caused by multiple gunshot wounds, and 

that any of the wounds which injured the internal organs such 

as the lung, liver, kidney, or spinal canal could have proven 

fatal because of bleeding from those sites. 

 After he had committed the murder, Barber returned to his 

apartment and told Martin that he had killed Petrole. Barber 

used his cellular telephone to talk with the defendant, who 

was at the nightclub. 

 Barber changed clothes, and he and Martin went to the 

nightclub to meet the defendant. Once Barber and Martin 

11
entered the nightclub, Barber and the defendant spoke outside 

of Martin's presence. Barber told the defendant that he 

(Barber) "did it and it was done." The defendant responded, 

"all right." Then the defendant gave Barber "like a pound and 

a half hug." The defendant "ordered a round of drinks" for 

himself, Barber, and Martin. The defendant commented that "we 

got to have a made cake now – or like a rack of cake," a slang 

expression that means "we made a lot of money." The purpose 

of the toast was to celebrate their "rack of money." 

 In return for his act of killing Petrole, the defendant 

told Barber that he did not have to pay for four pounds of 

marijuana that the defendant had previously sold him. 

Additionally, the defendant gave Barber a half pound of 

"chronic" marijuana, forgave Barber's $3,000 debt for past 

drug transactions, and promised to pay Barber $10,000 in cash. 

 Martin testified at trial, and his testimony corroborated 

Barber's version of the events on the night of the murder. 

Martin and Barber had dinner with Martin's parents on the 

evening of March 15 before the murder. After dinner, Barber 

and Martin went to Barber's apartment that he shared with 

Coleman. They drank beer and smoked marijuana. Martin 

observed Barber when he had the conversation with the 

defendant in the parking lot of the restaurant. After the 

conversation, when the men were at Barber's apartment, Barber 

12
told Martin that Barber intended to "put one in each kneecap." 

Barber told Martin that Barber intended to leave the apartment 

with his pistol after he received a telephone call from the 

defendant. After Barber received the telephone call, he left 

the apartment, followed Petrole, and killed him. 

 Martin testified that after the murder, he and Barber 

went to the nightclub and when they met the defendant, Barber 

told Martin "to go away" so that the defendant and Barber 

could have a private conversation. After the defendant and 

Barber had concluded their private conversation, Martin 

approached them. The defendant and Barber gave Martin an 

alcoholic beverage, and the defendant "told [Martin] right 

there you can't say nothing about this and I'm about to make a 

lot of money." Immediately, the defendant, Barber, and Martin 

made a toast. 

 After the murder, Martin approached the defendant and 

asked for a discount for the purchase of marijuana. Martin 

told the defendant, "I know what happened." The defendant 

gave Martin a discount on the purchase and forgave him of a 

past drug debt. 

 The day after the murder, the defendant and several 

friends, including Barber, went shopping to purchase clothes 

to wear to a birthday party in honor of the defendant on March 

17, 2001. The defendant and his friends purchased several 

13
bottles of expensive champagne for his birthday party that 

cost in excess of $200 per bottle. 

 After his birthday party, the defendant decided that 

things were getting "too hot" with the police, and he fled to 

Florida. Police officers searched Barber's apartment and 

interrogated him, but he denied any involvement in Petrole's 

murder. Barber left Virginia, went to Florida, and then fled 

to San Diego, California. Barber contacted his former 

girlfriend, Jennifer Pascquierllo, and asked her to obtain 

money from the defendant and bring the money to Barber. The 

defendant gave her $1,000. She drove her car to meet Barber 

in San Diego, where he was eventually arrested by United 

States Marshals. 

 Three days after the murder, Barber gave Martin $540 and 

directed him to repair the damage to his car and to replace 

the tires. Barber was afraid that the car's tires may have 

created identifiable skid marks at the scene of the murder. 

Barber instructed Martin to take the car to Virginia Beach, 

Virginia, and get it repaired there. Martin told Barber that 

Martin was not "going to help him out." Martin tried to 

return the money, but Barber would not accept it. That night, 

Martin contacted police officers and reported the crime. 

 Pascquierllo testified that Barber relayed to her the 

facts relating to the murder of Petrole. Her testimony 

14
concerning these facts was consistent with Barber's trial 

testimony. She also testified: "I asked [Barber] what the 

sum of money was, what kind of sum of money it could have 

been, and he told me that it was $10,000 and he got some weed, 

but that he had to flush it, and then he told me that it was 

also the $3,000 debt that involved me." Pascquierllo 

testified that Barber tried unsuccessfully to obtain from the 

defendant the $10,000 that he had promised to pay Barber to 

kill Petrole. 

 The defendant made numerous admissions during his 

testimony. The defendant admitted that he had been a drug 

dealer for four or five years before Petrole's death. He 

admitted that he was guilty of the charge of conspiracy to 

distribute more than five pounds of marijuana. He had 

distributed more than 100 pounds of marijuana throughout 

Northern Virginia since he began selling drugs. He admitted 

that he had spoken to his friends about robbing a drug dealer. 

He admitted that he had discussed with Coleman the possibility 

of committing robberies. The defendant admitted that he was 

the last person Barber called before Barber killed Petrole and 

the first person Barber called after Petrole's death. He 

admitted that he sold marijuana to Martin after the murder and 

that Martin stated, "I know what happened." After Martin made 

15
this statement, the defendant admitted he decreased the price 

of the marijuana he sold to Martin. 

 The defendant testified that one of his highest 

priorities was the "high life" that money could obtain for 

him. The defendant regularly spent between $2,000 and $3,000 

on weekends for entertainment purposes. The defendant 

admitted that he owed Petrole more than $80,000 at the time of 

Petrole's death. 

 The defendant claimed that Barber testified untruthfully 

about him because the defendant purportedly had had sexual 

relations with Barber's former girlfriend, Pascquierllo. 

However, the defendant admits that when asked by the police 

detectives, "[d]id Owen have anything against you?," the 

defendant responded, "no." Additionally, Pascquierllo denied 

that she ever had a sexual relationship with the defendant. 

III. 

 During the penalty phase of the capital murder 

proceedings, the Commonwealth adduced the following evidence. 

Daniel Petrole, Sr., and Jane Alison Petrole, the victim's 

parents, discussed the impact of his death upon their family. 

The Commonwealth also presented the defendant's juvenile 

records which consisted of an order dated October 10, 1997, 

which was an adjudication of guilt for possession of less than 

five pounds of marijuana. Additionally, the defendant, as a 

16
juvenile, had committed numerous probation violations by 

breaking into his mother's home, purchasing alcoholic 

beverages, possessing a false identification card, assuming a 

false name, and testing positive for amphetamines and 

cannabinoids. The defendant also had been convicted in 

Florida for possession of a false identification card. 

 The defendant presented extensive evidence about his 

background and character. Dr. William Ling, a clinical 

psychologist who qualified as an expert witness, presented 

testimony favorable to the defendant. Dr. Ling testified, 

however, that "the best predictor of future behavior is past 

behavior," and that "[s]ubstance abuse has been shown to have 

a high incidence or a high correlation with risk of future 

violence." 

IV. 

 The defendant filed 37 separate assignments of error. 

However, the defendant failed to brief assignments of error 2, 

3, 10, 11, 12, 13, 21, 23, 30, 31, and 32. Even though the 

defendant claimed in his reply brief that he discussed these 

assignments of error in his opening brief, the defendant's 

assertions are incorrect. In his reply brief to the 

Commonwealth's brief, the defendant purportedly identified 

pages in his initial brief where the assignments of error were 

discussed. We have reviewed the defendant's brief, and the 

17
arguments are simply not present therein. Moreover, during 

the oral argument before this Court, the defendant could not 

demonstrate where in his brief these assignments of error were 

addressed. He merely referred this Court to his reply brief. 

 In accordance with our well-established precedent, Lenz 

v. Commonwealth, 261 Va. 451, 458, 544 S.E.2d 299, 303, cert.

denied, 534 U.S. 1003 (2001); Kasi v. Commonwealth, 256 Va. 

407, 413, 508 S.E.2d 57, 60 (1998), cert. denied, 527 U.S. 

1038 (1999), the following assignments of error, not having 

been briefed, are waived: 

 "2. The court below erred in improperly 

limiting voir dire of the jury venire by the 

defense. 

 "3. The court below erred in allowing the 

jurors be the judges of their own impartiality. 

 "10. It was error for the court below to 

exclude Justin Wolfe's testimony that he had been 

told that Ian Wiffin had been indicted. 

 "11. The court below erred in allowing the 

Commonwealth to lead its own witnesses. 

 "12. The court below erred in allowing the 

Commonwealth to present evidence that it had not 

disclosed to the defense as required by the 

Discovery Order and Rule 3A:11 of the Rules of the 

Supreme Court of Virginia. 

 "13. The Court below erred in allowing the 

Commonwealth to withhold exculpatory evidence, the 

withholding of which was revealed during the course 

of the trial, and which was producible in accordance 

with the court's order and the applicable laws 

regarding the prosecution's duty to provide 

18
exculpatory evidence in order to ensure a fair trial 

and just outcome. 

 "21. The court below erred by failing to 

instruct the jury on the necessity of and procedure 

for balancing the aggravating and mitigating 

factors. 

 "23. The court below erred in its instructions 

on accessory before the fact, principle in the 

second degree, and concert of action. These 

instructions were erroneous. 

 "30. The court below erred by failing to set 

aside the verdict when there was evidence that at 

least one juror slept through part of the trial. 

 "31. The court below erred by stating that the 

evidence presented at the judicial sentencing was 

not new evidence, and ignoring the new evidence 

presented for the first time at the judicial 

sentencing which included evidence of false and 

misrepresented facts in the Commonwealth's case. 

 "32. The court below erred by not rejecting 

the jury recommendation of death and imposing a 

sentence of life without parole." 

 We will not consider assignment of error 37 because it is 

vague. That assignment of error states: "Such other grounds 

as may become evident through a more thorough examination of 

the record." Rule 5:17(c). The defendant does not assign any 

error to his non-capital convictions. Accordingly, we will 

affirm those convictions. 

V. 

 The defendant has raised two issues on appeal that have 

been decided adversely to his claims by our previous 

19
decisions. We adhere to those rulings, and we will not 

discuss them further. The issues previously resolved are: 

 (i) whether the future dangerousness aggravator is 

unconstitutionally vague. This argument was rejected in Bell 

v. Commonwealth, 264 Va. 172, 203, 563 S.E.2d 695, 716 (2002), 

cert. denied, ___ U.S. ___, 123 S.Ct. 860 (Jan. 13, 2003); 

Remington v. Commonwealth, 262 Va. 333, 355, 551 S.E.2d 620, 

634 (2001), cert. denied, ___ U.S. ___, 122 S.Ct. 1928 (2002); 

 (ii) whether the vileness factor is unconstitutionally 

vague. This argument was rejected in Morrisette v. 

Commonwealth, 264 Va. 386, 397, 569 S.E.2d 47, 55 (2002); Beck 

v. Commonwealth, 253 Va. 373, 387, 484 S.E.2d 898, 907, cert.

denied, 522 U.S. 1018 (1997). 

VI. 

 The defendant argues that the circuit court erred in 

failing to remove for cause two members of the venire, 

Patricia Grisham and Leo Green. The defendant claims that the 

circuit court should have removed these members of the venire 

for cause because of their exposure to media coverage of the 

crimes. The defendant states: "Juror Grisham remembered 

being baffled as to why young people under the age of 21, and 

not of legal drinking age, would be in a D.C. nightclub after 

it happened. Juror Green said that he had read about it and 

heard about it on the radio. He also recalled hearing about 

20
the case the week before. He specifically remembered the guy 

was killed, there was dope involved, and a stash of money was 

found." The defendant claims there was "reasonable doubt" 

regarding these jurors' ability to give him a fair and 

impartial trial. 

 The defendant's contentions are without merit. The 

circuit court and counsel conducted the voir dire of the 

venire. Grisham stated that she had not acquired any 

information about the defendant's alleged criminal acts from 

the news media or other sources that would affect her 

impartiality in this case. Grisham also stated that she did 

not "know of any reason whatsoever why [she] would not be able 

to give a fair and impartial trial to the Commonwealth and to 

the accused based solely on the evidence [she] would hear in 

this courtroom and the instructions of law" that the circuit 

court would give the jury. 

 Additionally, the following colloquy occurred between the 

Commonwealth's attorney and Grisham: 

"Commonwealth's Attorney: This case involves 

the alleged distribution of drugs by some young 

people in Northern Virginia, one of whom was 

followed into this County and killed. 

"Do you think you have heard something about 

that? 

"Ms. Grisham: I believe I read it in The 

Washington Post. 

21
. . . . 

"Commonwealth's Attorney: Irrespective of what 

you heard or read, would you be able to put that 

aside and render an opinion based solely on the 

evidence that you will hear in this courtroom and 

the law that the Court will give you? 

"Ms. Grisham: Yes." 

The following colloquy occurred between defendant's counsel 

and Grisham: 

 "Defense Counsel: You indicated that you . . . 

read articles in The Washington Post. 

 "Ms. Grisham: Uh-huh. 

 "Defense Counsel: What do you remember of 

those articles when they came out? 

 "Ms. Grisham: I think the part that I remember 

the most is I believe that after it happened they 

were at a nightclub, I believe, I want to say the 

D.C. area. And I think I remember their ages as 

being under twenty-one, a few of them. 

 "And I was – in my mind I was thinking, why are 

they at a nightclub if they are not of legal 

drinking age? 

. . . . 

 "Defense Counsel: Did those articles have any 

impact on your ability to – have you formed any 

opinions about this case? 

 "Ms. Grisham: No. 

. . . . 

 "Defense Counsel: And you think you can be 

fair even in light of those articles? 

 "Ms. Grisham: Yes." 

22
The following colloquy occurred between defense counsel 

and Green: 

"Defense Counsel: Could you tell me what 

reports you heard, to the best of your recollection, 

or saw? 

"Mr. Green: I don't remember any one in 

particular. I just heard it on the news. I heard 

about it and I read about it in the newspapers when 

it happened. And then I think last week or sometime 

when they brought it up again I heard it on the 

news. 

"Defense Counsel: Do you have any recollection 

of any substance of the reports, or did you form any 

opinions? 

"Mr. Green: No. The only thing I remember was 

that the guy was killed and there was dope involved 

in it and they found a stash of money in there with 

him. That's all I know about it. 

"Defense Counsel: Do you think that you could 

set aside those facts and listen only to the 

testimony and evidence as presented during this 

trial? 

"Mr. Green: Yes. 

 "Defense Counsel: Do you think you could 

forget about what you've heard in the media? 

 "Mr. Green: Yes." 

 In response to the court's question, "Have any of you 

acquired any information about these offenses or about the 

accused from the news media or other sources, and if so, would 

that information affect your impartiality in these cases?," 

Green responded, "I have read the newspapers and heard on the 

radio something about it." However, Green stated that he had 

23
not "expressed or formed any opinions as to the guilt or 

innocence of the accused." Green also stated that he could 

put any information that he had read aside, listen to the 

evidence presented in the courtroom, and render his verdict 

based solely upon the evidence. 

 An accused has a constitutional right to an impartial 

jury. U.S. Const. amends. VI and XIV; Va. Const. art. I, § 8. 

Green v. Commonwealth, 262 Va. 105, 115, 546 S.E.2d 446, 451 

(2001). Additionally, we have held that a prospective juror 

"must be able to give [the accused] a fair and 

impartial trial. Upon this point nothing should be 

left to inference or doubt. All the tests applied 

by the courts, all the enquiries made into the state 

of the juror's mind, are merely to ascertain whether 

[the juror] comes to the trial free from partiality 

and prejudice. 

 "If there be a reasonable doubt whether the 

juror possesses these qualifications, that doubt is 

sufficient to insure his exclusion. For, as has 

been well said, it is not only important that 

justice should be impartially administered, but it 

should also flow through channels as free from 

suspicion as possible." 

Wright v. Commonwealth, 73 Va. (32 Gratt.) 941, 943 (1879); 

accord Green, 262 Va. at 115, 546 S.E.2d at 451; Barker v. 

Commonwealth, 230 Va. 370, 374-75, 337 S.E.2d 729, 732-33 

(1985); Justus v. Commonwealth, 220 Va. 971, 976, 266 S.E.2d 

87, 90-91 (1980). 

 Additionally, this Court must give deference to the 

circuit court's determination whether to exclude a prospective 

24
juror because the circuit court was able to see and hear each 

member of the venire respond to the questions asked. The 

circuit court is in a superior position to determine whether a 

prospective juror's answers during voir dire indicate that the 

juror would be prevented from or impaired in performing the 

duties of a juror required by the juror's oath and the court's 

instructions. Green, 262 Va. at 115, 546 S.E.2d at 451; 

Lovitt v. Commonwealth, 260 Va. 497, 510, 537 S.E.2d 866, 875 

(2000), cert. denied, 534 U.S. 815 (2001). This Court must 

consider the voir dire as a whole, and not simply the juror's 

isolated statements. Clagett v. Commonwealth, 252 Va. 79, 90, 

472 S.E.2d 263, 269 (1996), cert. denied, 519 U.S. 1122 

(1997). And, we will not disturb the circuit court's refusal 

to strike a juror for cause unless that decision constitutes 

manifest error. Green, 262 Va. at 116, 546 S.E.2d at 451; 

Clagett, 252 Va. at 90, 472 S.E.2d at 269; Roach v. 

Commonwealth, 251 Va. 324, 343, 468 S.E.2d 98, 109, cert.

denied, 519 U.S. 951 (1996). 

 Applying the aforementioned principles, we hold that the 

circuit court did not abuse its discretion when it refused to 

grant the defendant's motion to strike Grisham and Green. Our 

review of the entire voir dire of Grisham and Green, including 

their statements summarized above, indicates that these 

jurors' ability to give the defendant a fair and impartial 

25
trial was not left to inference or doubt. Both Grisham and 

Green stated that they could put aside any information that 

they had read or heard and give the defendant a fair trial 

based solely upon the evidence admitted during the trial and 

the jury instructions that the court would give to the jury. 

And, as the Supreme Court has held, the federal Constitution 

does not require that a court disqualify a juror simply 

because that juror has been exposed to media coverage. Mu'Min 

v. Virginia, 500 U.S. 415, 430 (1991). Accord Murphy v. 

Florida, 421 U.S. 794, 799-800 (1975); Irvin v. Dowd, 366 U.S. 

717, 722-23 (1961). 

VII. 

Guilt Phase 

A. 

 During the guilt phase of the capital murder trial, the 

Commonwealth presented several witnesses who testified that 

the defendant had planned to rob drug dealers. The defendant 

argues that "[t]his evidence was only admissible if it was 

being used to prove felony murder" but that "the Commonwealth 

relied on this evidence to prejudice the jury against Mr. 

Wolfe." We will not consider this argument because the 

defendant did not object to the admission of this evidence at 

trial. Rule 5:25. 

B. 

26
 The defendant claims that the circuit court erred because 

it purportedly "permitted a lay witness to express an opinion 

about what she thought might have happened on the night of the 

offense." Not only does the defendant mischaracterize Janelle 

Johnson's testimony, but the defendant failed to make any 

objection to such purported testimony and, therefore, we will 

not consider this argument. Rule 5:25. 

C. 

 The defendant argues that the circuit court erred because 

it permitted witnesses Chad Hough and Jason Coleman to violate 

the rule on the exclusion of witnesses, and the court failed 

to strike Hough's testimony. The defendant claims that even 

though the court granted a joint motion by the defendant and 

the Commonwealth to exclude the witnesses pursuant to Code 

§ 19.2-265.1, Hough and Coleman violated that order. The 

defendant says that his counsel spoke with Coleman after Hough 

had testified during the trial. Allegedly, Hough discussed 

with Coleman, in detail, defense counsel's cross-examination 

of Hough. 

 Continuing, the defendant states that "[e]ven though the 

Commonwealth did not call Coleman as a witness, the 

impropriety prevented the defendant from calling him and 

getting his unfettered answers and/or surprised reaction. It 

put the defense in the position of having to cross-examine 

27
[its] own witness had Coleman not answered with the 

anticipated response. To balance the impact of having Hough's 

testimony alone, [Coleman's] testimony should have been 

stricken." 

 The circuit court denied the defendant's motion for a 

mistrial. The court stated that neither Hough nor Coleman was 

in the courtroom when the court granted the motion to exclude 

witnesses. The court concluded: "It would be awful hard for 

this Court to find any intentional impropriety simply because 

these witnesses were not here to receive the Court's order. 

And indeed, the Commonwealth may have talked to these 

witnesses, but you [defense counsel] talked to the witnesses 

also because you said you actually called the witness, Mr. 

Coleman, and talked to him." 

 Code § 19.2-265.1 requires a circuit court to exclude 

witnesses from the courtroom upon the motion of any litigant. 

We have held that a circuit court has discretion to decide 

whether a witness who violates an exclusion order should be 

prohibited from testifying. Brickhouse v. Commonwealth, 208 

Va. 533, 537, 159 S.E.2d 611, 614 (1968). "Factors to be 

considered in resolving the question include whether there was 

prejudice to the defendant and whether there was intentional 

impropriety attributable to the prosecution. It is also 

pertinent whether the out-of-court comments concerned any 

28
substantive aspect of the case and whether they had any effect 

on the witness' testimony." Bennett v. Commonwealth, 236 Va. 

448, 465, 374 S.E.2d 303, 314 (1988), cert. denied, 490 U.S. 

1028 (1989). 

 Applying our precedent, we hold that the circuit court 

did not abuse its discretion when it denied defendant's motion 

for a mistrial. The defendant failed to establish that he was 

prejudiced, and he failed to show any intentional impropriety 

attributable to the Commonwealth. And, as we have already 

stated, the circuit court found that neither Hough nor Coleman 

was aware of its ruling that excluded the witnesses. 

D. 

 The defendant argues that the Commonwealth's evidence 

established that he was guilty of the crime of felony murder, 

not capital murder. The defendant states that Ian Wiffin, 

whom the defendant describes as a key witness for the 

Commonwealth, testified that the defendant told Wiffin after 

the crimes had occurred that Barber "was supposed to rob [the 

victim], but he messed it up and ended up killing him." 

Continuing, the defendant contends that at the very least, the 

Commonwealth's evidence established reasonable doubt whether 

the defendant hired Barber to kill the victim. The 

defendant's contentions lack merit. 

29
 The jury in this case was properly instructed by the 

court to consider all the evidence. Our review of the record 

in this case reveals that the Commonwealth presented evidence 

that permitted the jury to find beyond a reasonable doubt that 

the defendant hired Barber to kill Daniel Petrole. Barber 

testified that the defendant paid him to kill Petrole. 

Pursuant to the terms of the agreement, the defendant agreed 

to pay Barber $10,000 in cash, he forgave Barber's prior drug 

debts and gave Barber a half pound of marijuana. The 

defendant and Barber stalked the victim on numerous occasions 

in an effort to kill him. The defendant devised a plan to 

lure the victim to the defendant's girlfriend's apartment so 

that Barber could then follow the victim and execute him at 

the appropriate time. After Barber killed the victim, Barber 

called the defendant. Barber and the defendant met at a club, 

and the defendant boasted that he just made a "rack of cake," 

a slang expression for "a lot of money." And, Barber's 

version of the murder-for-hire scheme is consistent with the 

testimony of numerous other witnesses. Moreover, contrary to 

the defendant's assertion, the jury was not required to accept 

as true his self-serving statements that he made after the 

murder that Barber "messed it up and ended up killing 

[Petrole]." 

E. 

30
 Hough and Ian Wiffin, who testified on behalf of the 

Commonwealth, stated that criminal charges were pending 

against them in the federal district courts for possession and 

distribution of drugs. Hough had executed a plea agreement 

with a United States Attorney in West Virginia that provided a 

maximum punishment of 20 years imprisonment. Pursuant to the 

terms of the agreement, the United States Attorney was 

required to make "nonbinding recommendations" to the federal 

district court for reductions in Hough's sentence based upon 

his cooperation with federal law enforcement agencies. Hough 

testified at trial that he hoped that the federal district 

court would reduce his sentence based on his cooperation and 

testimony in the defendant's capital murder trial. 

 Wiffin had been indicted by a federal grand jury in 

Virginia. He testified that his lawyer had advised him that 

his testimony "might help" Wiffin in his federal criminal 

proceedings. A draft of a plea agreement had been prepared, 

but no agreement had been executed between Wiffin and the 

United States Attorney. 

 At trial, the defendant tried to present testimony from 

an attorney who considered himself an expert on the subject of 

federal sentencing guidelines. The circuit court refused to 

permit this purported expert witness to testify because, among 

other things, such testimony would have been pure speculation. 

31
 We agree with the circuit court, and we hold that the 

court did not abuse its discretion when it refused to permit 

such testimony. The plea agreement that Hough had executed 

with a United States Attorney simply provided that the United 

States would make nonbinding recommendations on his sentence 

based upon his cooperation with federal authorities. No one, 

including the so-called expert witness, could opine what 

sentence the federal district court would ultimately impose 

upon Hough. Wiffin had not yet signed a written agreement 

with a United States Attorney in Virginia. Accordingly, any 

so-called expert testimony on this subject would have been 

utter speculation and, thus, inadmissible. As we have 

recently stated, expert testimony that is speculative is not 

admissible. John v. Im, 263 Va. 315, 320, 559 S.E.2d 694, 696 

(2002). 

VIII. 

A. 

Penalty Phase 

 Code § 19.2-264.2 states: 

 "In assessing the penalty of any person 

convicted of an offense for which the death penalty 

may be imposed, a sentence of death shall not be 

imposed unless the court or jury shall (1) after 

consideration of the past criminal record of 

convictions of the defendant, find that there is a 

probability that the defendant would commit criminal 

acts of violence that would constitute a continuing 

serious threat to society or that his conduct in 

32
committing the offense for which he stands charged 

was outrageously or wantonly vile, horrible or 

inhuman in that it involved torture, depravity of 

mind or an aggravated battery to the victim; and (2) 

recommend that the penalty of death be imposed." 

The defendant argues that the evidence is insufficient as a 

matter of law to establish his future dangerousness. The 

defendant states that he has never been charged with, involved 

in, or convicted of any violent or assaultive crime. He 

states that his prior record of simple possession of 

marijuana, possession of a false identification, and obtaining 

alcohol while under the age of 21 is insufficient to prove his 

future dangerousness. Additionally, he says that the key 

evidence upon which the Commonwealth relied to prove future 

dangerousness involved a student who brought a razor blade and 

syringes to school in violation of school rules. The 

defendant's brother, not the defendant, was guilty of that 

infraction. We disagree with the defendant's contentions that 

the evidence is insufficient to prove that he is a future 

danger. 

 Based upon our review of the record, we hold that the 

evidence of record permitted the jury to find that there is a 

probability that the defendant would commit criminal acts of 

violence that would constitute a continuing serious threat to 

society. Contrary to the defendant's assertion, it is not 

necessary that he have a prior criminal record as a predicate 

33
on which the jury must rely before it can sentence him to 

death based on future dangerousness. Kasi, 256 Va. at 423, 

508 S.E.2d at 66; Goins v. Commonwealth, 251 Va. 442, 467, 470 

S.E.2d 114, 130-31, cert. denied, 519 U.S. 887 (1996); Breard 

v. Commonwealth, 248 Va. 68, 86, 445 S.E.2d 670, 681, cert.

denied, 513 U.S. 971 (1994); Murphy v. Commonwealth, 246 Va. 

136, 144, 431 S.E.2d 48, 53, cert. denied, 510 U.S. 928 

(1993). 

 The evidence of record establishes, beyond a reasonable 

doubt, that this defendant is a future danger to society. The 

defendant was a major drug dealer in Northern Virginia. He 

had been a major drug dealer for four or five years before 

March 15, 2001, the date he arranged for the murder of his 

supplier. He admitted that he sold over 100 pounds of 

marijuana, and he purchased between eight and 18 pounds of 

marijuana every two weeks from the victim. 

 Prior to this murder, the defendant had spoken with 

others and discussed committing robberies of drug suppliers. 

For example, Hough testified that he and the defendant "talked 

about performing robberies most of the time. Almost every 

time we got together, it was usually some type of robbery 

connected with drugs." Additionally, Hough stated that "[i]t 

was usually like maybe holdup styles, as far as whether – I 

remember one time it was – Justin would go to make a buy. We 

34
would go in and tie them up and beat them up and take the 

drugs and money . . . ." 

 The evidence also showed that the defendant and another 

friend, Coleman, purchased ski masks and duct tape in 

furtherance of a plan to rob a drug dealer. The defendant and 

Hough discussed robbing a drug dealer who lived in Washington, 

D.C., but they abandoned their plan because the defendant 

concluded that the level of security in the apartment building 

where the intended victim lived was too extensive. 

 The evidence showed that this defendant devised a plan 

whereby he lured Petrole, his major drug supplier, to a 

specific location in Virginia. The defendant paid his 

longtime friend, Barber, to follow Petrole, and then execute 

him because Petrole knew too many people. The defendant 

directed Barber to kill Petrole, stating, "we got to shoot him 

because he knows too many people." The evidence also showed 

that prior to the actual murder of Petrole, the defendant and 

Barber had made several other attempts to locate and kill 

Petrole. Certainly, these acts are sufficient to support the 

jury's finding beyond a reasonable doubt that there is a 

reasonable probability that this defendant is a future danger 

to society. Additionally, the fact that soon after Petrole 

was killed, the defendant celebrated at a party and drank a 

35
toast in honor of the murder is indicative of the danger he 

poses to others. 

B. 

 The defendant argues that Code § 19.2-264.2 does not 

permit him to be sentenced to death based upon the vileness 

predicate because the vile acts of Barber cannot be attributed 

vicariously to the defendant. Additionally, the defendant 

argues that the evidence was not sufficient to establish 

vileness. We need not, and expressly do not, consider these 

arguments because the defendant was sentenced to death based 

upon the vileness predicate as well as the future 

dangerousness predicate. The future dangerousness predicate 

is a separate and independent basis to support the imposition 

of the death penalty, and as we have already discussed, the 

evidence was sufficient to establish that the defendant 

constituted a continuing serious threat to society. 

IX. 

 During the penalty phase of the trial, the jury, as 

required by our decision in Yarbrough v. Commonwealth, 258 Va. 

347, 374, 519 S.E.2d 602, 616 (1999), cert. denied, ___ U.S. 

___, 122 S.Ct. 1925 (2002), was instructed that it could 

sentence the defendant to life imprisonment, life imprisonment 

and a fine, or death, and that: "the words 'imprisonment for 

36
life' mean imprisonment for life without possibility of 

parole." 

 After the jury began to deliberate on the appropriate 

punishment, the jury submitted several questions to the 

circuit court. Among other things, the jury asked the 

following questions: "Does life imprisonment mean that the 

defendant will never be released from prison by any means?" 

The court, out of the jury's presence, informed counsel as 

follows: 

 "The Court has not considered this a parole 

question because [the jury] didn't mention the word 

parole. It says by any means and this gets into 

areas of executive clemency and the other means, 

because obviously [the jury] said any means. 

 "So I don't think the Court – it's 

[in]appropriate for me to address the question one 

way or the other." 

The defendant's counsel stated that the court should instruct 

the jury that parole had been abolished. The court responded: 

 "I think [the jury has] been informed . . . in 

the instruction that [the jury has] already 

received, which says that life imprisonment means 

imprisonment for life without the possibility of 

parole. 

 "That instruction [the jury has] and I notice 

this question did not mention parole. This is not a 

parole question. . . . 

 "I think obviously what [the jury is] talking 

about is any means and we're talking about like 

executive clemency, for example, or any other means 

that may be available and I think it's inappropriate 

to be addressed at this time." 

37
The circuit court instructed the jury that it must proceed on 

the instructions that the jury had already received from the 

court. 

 The jury began to deliberate further. Subsequently, the 

jury submitted another written question to the court: "In the 

instructions it says 'life means life' – what is the 

definition of life?" The court responded: "The instruction 

you received says 'The words "imprisonment for life" mean 

imprisonment for life without possibility of parole.' " The 

defendant objected to the court's response and suggested that 

the word "life" means "Justin Wolfe's natural life." The 

court responded: 

 "That could be misleading because that's not 

what it means in that instruction . . . . You do 

have executive clemency, you do have geriatric 

parole. So obviously if we take that definition [of 

Justin Wolfe's natural life] that's not accurate. 

 "What the Court has proposed is simply to tell 

them to go back and read the definition – the 

instruction because the instruction didn't say life 

means life, first of all. The instruction says the 

words imprisonment for life mean imprisonment for 

life without the possibility of parole. That's the 

instruction that comes from our 1999 Yarbrough v. 

Commonwealth case that our Supreme Court says was 

the proper instruction to be given when requested by 

defense counsel. 

 "If we expand that, I think we're going into 

areas that simply would not be accurate." 

 The defendant argues that the circuit court should have 

instructed the jury that "imprisonment for life means Justin 

38
Wolfe's natural life." We disagree with the defendant's 

contentions. 

 In Bell, supra, a jury in the trial of a capital murder 

case was instructed regarding the definition of imprisonment 

for life as mandated by our decision in Yarbrough. The jury 

asked the circuit court, " 'Understanding that imprisonment 

for life means no possibility of parole, is there any other 

way to be released from prison?' " The court instructed the 

jury that it " 'would have to rely on the evidence that [it] 

heard, and the instructions already presented in deciding the 

punishment.' " The circuit court in Bell concluded that a 

more detailed answer to the jury's question would have 

required the court to discuss matters that were speculative 

and inappropriate for the jury to consider. 264 Va. at 204, 

563 S.E.2d at 716. 

 In Bell, we stated that the question that the jury asked 

"was general and could not have been accurately 

answered without telling the jury about executive 

clemency or pardon. Yet, we have never allowed a 

jury to have that information because of the 

potential for jury speculation resulting in a 

harsher sentence than would otherwise be warranted. 

 "So, the only response that would have 

comported with our precedent was to instruct the 

jurors that geriatric release and sentencing credits 

were not available to Bell and that they should not 

concern themselves with anything else. Yet, that 

kind of response would have suggested that there is 

some other form of early release still available to 

Bell and would have, in fact, invited the jury to 

speculate. . . . Such speculation is 'inconsistent 

39
with a fair trial both to the defendant and the 

Commonwealth.' " 

Id. at 207-08, 563 S.E.2d at 718. We concluded in Bell that 

the circuit court did not err when it directed the jury to 

rely on the evidence that it had heard and the instructions 

that it had been given because any other response would have 

either been inaccurate or would have led to speculation by the 

jury. 

 Our holding in Bell requires a similar conclusion in this 

appeal. Had the circuit court instructed the jury, as 

requested by the defendant, that natural life meant the 

natural life of Justin Wolfe, such response would have been 

inaccurate because, just as in Bell, that response would have 

negated the possibility of early release through an act of 

executive pardon or clemency. These possibilities are 

inappropriate for a jury to consider because such information 

could cause the jury to speculate, and such speculation might 

result in a harsher sentence than would otherwise be 

warranted. Accordingly, we hold that the circuit court did 

not err when it denied the defendant's request for a jury 

instruction that life means the natural life of Justin Michael 

Wolfe. 

X. 

40
 The defendant argues, in a very conclusional fashion, 

that he was somehow deprived of his right to due process 

because of Rule 1:1. The defendant's contention lacks merit. 

 Rule 1:1 states in part: 

 "All final judgments, orders, and decrees, 

irrespective of terms of court, shall remain under 

the control of the trial court and subject to be 

modified, vacated, or suspended for twenty-one days 

after the date of entry, and no longer. But 

notwithstanding the finality of the judgment, in a 

criminal case the trial court may postpone execution 

of the sentence in order to give the accused an 

opportunity to apply for a writ of error and 

supersedeas; such postponement, however, shall not 

extend the time limits hereinafter prescribed for 

applying for a writ of error." 

 Even though the defendant asserts that the circuit court 

refused to grant him an evidentiary hearing within the 21 days 

after a witness purportedly recanted her testimony, the 

defendant does not demonstrate how he was deprived of any 

right of due process. Our review of the record shows that the 

circuit court considered and denied all the defendant's posttrial motions in a timely manner and that Rule 1:1 was not 

implicated in the proceedings below. 

XI. 

 The defendant argues that the Commonwealth's attorney 

"misstated both the facts and the law to the jury." 

Continuing, the defendant asserts that the Commonwealth 

presented "false evidence about a school incident." The 

41
defendant also argues that the Commonwealth asked the jury 

during its closing argument "to impose the death sentence in 

order to 'send a message' to those who would consider getting 

involved in drugs and told the jury that Mr. Wolfe may not 

stay in prison. These false statements about the facts and 

the law individually, and in combination, denied Mr. Wolfe a 

fair trial." 

 The defendant's contentions regarding the closing 

argument are without merit. The defendant did not object to 

the Commonwealth's closing argument and, therefore, he may not 

raise objections to this argument for the first time on 

appeal. Rule 5:25. 

 During the cross-examination of several of the 

defendant's witnesses during the penalty phase of the trial, 

the Commonwealth's attorney asked those witnesses about an 

incident that occurred when the defendant allegedly took razor 

blades and syringes to school when he was in parochial school. 

For example, the Commonwealth asked the defendant's stepmother 

the following: 

 "Q: How many conversations do you think you 

had with the [defendant's parochial school] 

principal there? 

 "A: I only remember having one. 

 "Q: Only one? 

42
 "A: And I don't even remember what it was 

about. 

 "Q: And you don't remember that being about 

him bringing razor blades and syringes to school? 

 "A: Now that you mention it, I do, but I had 

forgotten it. 

 "Q: Oh, I see. You do remember that occurred. 

And you do remember going down there and pleading 

with the principal to please let [the defendant] 

stay in school there? 

 "A: I don't remember pleading. 

 "Q: What do you remember, ma'am? 

 "A: I'm sorry. I remember having a discussion 

with the principal. . . . I was concerned. 

 "Q: Do you remember that that was what the 

problem was, that he had brought razor blades and 

syringes into the school? 

 "A: Yes." 

 Michael W. Wolfe, the defendant's father, testified that 

the defendant did not take razor blades and syringes to school 

when he was in the eighth grade, but that his brother, Wesley 

J. Wolfe, had done so. Even though the Commonwealth 

vigorously cross-examined the defendant's father on this 

point, the defendant's father consistently stated that Wesley 

Wolfe, not Justin Wolfe, had taken the razor blades and 

syringes to school. The defendant's mother, Theresa 

Steinberg, also testified that Wesley Wolfe, who was a fourthgrade student at the time the incident occurred, found a bag 

43
of razor blades and syringes and took them to school, and that 

the defendant had no involvement in that incident. Wesley 

Wolfe testified that he, not the defendant, took the razor 

blades to school when he was in the fourth grade. 

 Marilyn S. Valatka, principal of the school that the 

defendant attended, testified during the penalty phase that 

according to her recollection, the defendant brought to school 

a small package of razor blades and a couple of plastic 

syringes, not needles. However, several months after the jury 

had sentenced the defendant to death, the defendant presented 

an affidavit from Ms. Valatka, who claimed that she was 

mistaken about her testimony that the defendant brought the 

razor blades and syringes to school. The circuit court 

refused to consider the affidavits. The court stated: "I 

think we should not proceed on the affidavits at this time 

because those witnesses could have been present for the Court 

to consider and are not. So I'm not going to proceed on 

affidavits." The defendant did not assign error to the 

circuit court's ruling. The affidavits upon which the 

defendant relies to make his argument are not a part of the 

record before this Court and, therefore, we will not consider 

them or the defendant's related arguments based upon those 

affidavits. 

XII. 

44
 The defendant argues: "The indictment charging Justin 

Wolfe with capital murder is defective as a matter of law. 

The grand jury failed to vote on the aggravators in [Code] 

§§ 19.2-264.3 and .4 which are necessary for consideration of 

the death penalty, and did not reference by words or citation 

the required predicate facts that must be proved beyond a 

reasonable doubt before the death penalty may even be 

considered as a possible punishment. These factors are 

elements . . . in a separate statute which was not considered 

by the grand jury and they were not a part of the indictment." 

 The defendant's contentions challenge the content and 

sufficiency of the indictment. However, the defendant did not 

raise his contentions in the circuit court until several 

months after the jury had returned its verdict. We will not 

consider the defendant's contentions because he failed to 

raise those contentions in a timely manner. 

 Rules 3A:9(b) and (c) mandate that a defense "based on 

defects in the institution of the prosecution or in the 

written charge upon which the accused is to be tried" must be 

raised "before a plea is entered" or "at least 7 days before 

the day fixed for trial." Pursuant to this Rule, failure to 

make a timely defense constitutes a waiver, except for 

jurisdictional defects, which are not present in this appeal. 

Additionally, this Court has consistently and repeatedly held 

45
that generally a defendant must challenge the sufficiency of 

an indictment before the jury's verdict, or the alleged defect 

is waived. See Stamper v. Commonwealth, 228 Va. 707, 713, 324 

S.E.2d 682, 686 (1985); Washington v. Commonwealth, 216 Va. 

185, 192, 217 S.E.2d 815, 822 (1975); Guthrie v. Commonwealth, 

212 Va. 550, 551, 186 S.E.2d 26, 28 (1972); McDougal v. 

Commonwealth, 212 Va. 547, 549, 186 S.E.2d 18, 20 (1972); 

Forester v. Commonwealth, 210 Va. 764, 767, 173 S.E.2d 851, 

854 (1970); Council v. Smyth, 201 Va. 135, 138, 109 S.E.2d 

116, 119 (1959); Bailey v. Commonwealth, 193 Va. 814, 822, 71 

S.E.2d 368, 372 (1952); Honaker v. Commonwealth, 136 Va. 752, 

754, 118 S.E. 85, 86 (1923); Flanary v. Commonwealth, 133 Va. 

665, 666, 112 S.E. 604, 604 (1922); Burgess v. Commonwealth, 4 

Va. (2 Va. Cas.) 483, 488 (1825). 

XIII. 

Passion and Prejudice 

 Code § 17.1-313(C)(1) requires that this Court determine 

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

influence of passion, prejudice or any other arbitrary 

factor." The defendant argues that his sentence of death was 

imposed under the influence of passion, prejudice, and other 

arbitrary factors. He claims that the jury was prevented from 

considering all the evidence in a fair manner because of the 

purported false argument by the Commonwealth's attorneys, the 

46
admission of victim impact testimony that did not fall within 

the parameters of the statute authorizing such testimony, and 

the admission of unadjudicated prior conduct when the 

Commonwealth purportedly did not provide notice of its intent 

to rely on such evidence. We disagree with the defendant's 

contentions. 

 First, we have reviewed the Commonwealth's closing 

argument during the penalty phase of the trial, and we find no 

statements in the closing argument that would have inflamed 

the jury. The circuit court properly permitted the victim's 

mother to testify about the impact that the murder of her son 

has had upon her family because such testimony is within the 

scope of Code §§ 19.2-299.1 and 19.2-264.4. 

 The defendant complains that the Commonwealth asked 

improper questions of certain witnesses that improperly 

inflamed the jury. The Commonwealth asked a friend of the 

defendant who testified at trial whether he knew that the 

defendant was a drug dealer, and whether he knew about the 

"hundreds of thousands of dollars that was flowing through 

[the defendant's] house on a weekly basis," and the witness 

responded, "no." The defendant's father was also asked during 

cross-examination in the penalty phase whether he knew that 

his son made hundreds of thousands of dollars selling drugs, 

and the father responded, "no." The defendant's brother, 

47
Wesley Wolfe, was also asked by the Commonwealth whether he 

knew that the defendant "had plenty of money, hundreds of 

thousands of dollars," and the brother responded, "no." 

Contrary to the defendant's assertions, we hold that these 

questions did not inflame the jury. In fact, there is 

evidence in this record from which the jury could have found 

that the defendant was involved in the purchase and sale of 

hundreds of thousands of dollars worth of illegal drugs. 

 The defendant contends that the sentence of death was 

imposed based upon the influence of passion, prejudice, or 

other arbitrary factors because the Commonwealth stated that 

the defendant had a history of violence. The defendant claims 

that the Commonwealth's statement regarding his "history of 

violence" was based upon an incident that involved a student 

who took a razor blade and syringes to school in violation of 

school policies. The defendant claims that his brother was 

the individual who was involved in this incident. 

 We have reviewed the Commonwealth's closing argument in 

the penalty phase of the trial, and the Commonwealth simply 

does not refer to this incident. The Commonwealth's reference 

to the defendant's history of violence pertained to the 

defendant's prior efforts to enlist others to rob drug 

dealers. For example, the Commonwealth stated: 

48
 "You heard [Janelle] Johnson say her husband, 

or ex-husband, whatever the status of their marriage 

is today, was one of [the defendant's] confederates. 

They talked on the phone about robbing people. They 

talked about robbing Matt Chevlin. 

 "They took the weapon which you've seen . . . 

her gun . . . and they would go out to collect drug 

debts. 

 "That is not violent? Now, he didn't have a 

gun in his possession. He went along with Mr. 

Coleman, because Mr. Coleman is his confederate, 

because he is not the type of person, from all of 

the evidence that would actually take the gun and 

commit the act. 

 "No, he's the type of person who would direct 

someone to do it." 

 We have reviewed the entire record as required by Code 

§ 17.1-313(C)(1), and we conclude that the sentence of death 

was not imposed under the influence of passion, prejudice, or 

any other arbitrary factor. 

XIV. 

Excessiveness and Proportionality 

 Code § 17.1-313(C)(2) requires this Court to consider and 

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." The test of 

proportionality that we apply is whether "juries in this 

jurisdiction generally approve the supreme penalty for 

comparable or similar crimes." Hedrick v. Commonwealth, 257 

Va. 328, 342, 513 S.E.2d 634, 642, cert. denied, 528 U.S. 952 

(1999). Accord Murphy v. Commonwealth, 246 Va. 136, 145, 431 

49
S.E.2d 48, 54, cert. denied, 510 U.S. 928 (1993) (quoting 

Stamper v. Commonwealth, 220 Va. 260, 284, 257 S.E.2d 808, 824 

(1979), cert. denied, 445 U.S. 972 (1980)). 

 The defendant argues that his sentence is excessive when 

compared to similar cases. We have examined the records of 

all capital murder cases reviewed by this Court when, as here, 

the death penalty was based upon murder for hire. Williams v. 

Commonwealth, 252 Va. 3, 472 S.E.2d 50, cert. denied, 519 U.S. 

998 (1996); Murphy, 246 Va. 136, 431 S.E.2d 48; Stockton v. 

Commonwealth, 227 Va. 124, 314 S.E.2d 371, cert. denied, 469 

U.S. 873 (1984); Clark v. Commonwealth, 220 Va. 201, 257 

S.E.2d 784 (1979), cert. denied, 444 U.S. 1049 (1980). Even 

though no two capital murder cases are identical, we are 

confident that given the special heinousness associated with 

the murder for hire in this particular case, the sentence of 

death is neither excessive nor disproportionate to sentences 

generally imposed by other sentencing bodies in this 

Commonwealth for crimes of a similar nature considering the 

crime and this defendant. 

XV. 

 We have considered all the defendant's remaining 

arguments, and they are without merit. Having reviewed the 

sentence of death, finding no reversible error in the record, 

50
and perceiving no reason to commute the death sentence, we 

will affirm the judgment of the circuit court. 

Affirmed. 

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