Present: All the Justices 

TONY LESLIE FRY 

OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR. 

v. Record No. 950673 

 November 3, 1995 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

Herbert C. Gill, Jr., Judge 

 In this appeal, Tony Leslie Fry challenges a sentence of 

death imposed upon him by the trial court. 

 I 

 In an indictment, Fry was charged with the capital murder of 

Leland A. Jacobs, i.e., the willful, deliberate, and premeditated 

killing of Jacobs during the commission of robbery or attempted 

robbery while armed with a deadly weapon, in violation of Code 

§ 18.2-31(4). At an arraignment on October 3, 1994, Fry pleaded 

guilty to the capital murder charge. After accepting the plea 

and hearing evidence about the commission of the offense, the 

trial court found Fry guilty as charged. On January 5, 1995, the 

court received a pre-sentence report prepared by a probation 

officer and conducted a sentencing hearing. Following the 

hearing, the court sentenced Fry to death, finding that his 

conduct in committing the offense was outrageously and wantonly 

vile in that it involved an aggravated battery. Code §§ 19.2-

264.2 and -264.4. 

 On appeal, Fry's sole contention is that the death sentence 

is excessive or disproportionate to the penalty imposed in 

similar cases. In addition to review on this ground, we are 

required to review the sentence to determine whether it was 
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imposed under the influence of passion, prejudice, or any other 

arbitrary factor. Code § 17-110.1(C)(1). 

 II 

 A 

 On February 21, 1994, Officer David L. Suda of the 

Chesterfield County Police Department was looking for Fry, who 

had been charged with arson. Suda drove his automobile to the 

end of Exter Mill Road in Chesterfield County where the paved 

road becomes a dirt road. After driving along the dirt road for 

a short distance, Suda parked his car and began to walk along the 

road. After walking "a couple hundred yards or so," he found 

some blood spots in the middle of the road and some "drag marks" 

extending from the blood spots and down the road. Suda followed 

the marks for "a couple hundred yards" before returning to his 

vehicle and proceeding to drive it down the dirt road. 

 Approximately 100 feet before reaching the blood spots, Suda 

encountered an approaching vehicle and was met "bumper to bumper" 

by a gray Ford Explorer without a front license plate and bearing 

a dealer's price sticker. Suda approached the vehicle on foot. 

Fry's friend, Brad Hinson, was the operator of the vehicle, and 

Fry was sitting in the front passenger seat. Suda observed blood 

on Fry's hands and asked Fry for an explanation. Fry claimed he 

had hurt himself "playing out in the woods." 

 Suda grabbed Fry's right hand and advised Fry that he had 

"some papers for him" relating to the arson charge. Fry 
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struggled momentarily when Suda endeavored to handcuff him. Fry 

suddenly ceased resisting, however, and said, "I want to kill 

myself." Fry then reached for the vehicle's console, saying, "I 

am going to kill myself." At that moment, Suda sprayed Fry in 

the face with mace. 

 Immediately after Suda handcuffed Fry, Hinson, who was 

standing outside the vehicle, "dove for the back seat of the car" 

and grabbed a coat. At that point, Suda pointed his weapon at 

Hinson, and Hinson, obeying Suda's order, released the coat, 

exited the vehicle, and placed his hands on the vehicle's hood. 

In the meantime, another officer had arrived on the scene and had 

taken charge of Fry. 

 While Suda was advising Fry of his Miranda rights, Hinson 

ran up to Suda and exclaimed that he "didn't have anything to do 

with it." Hinson said that Fry had killed a car salesman a few 

minutes earlier. Hinson then led Suda down the dirt road, 

following the drag marks for 642 feet, and pointed to the 

location of the body. Suda found the body, which proved to be 

that of Jacobs, lying beneath a pile of brush and shingles. 

 After again being advised of his Miranda rights, Fry gave a 

statement to Suda and later gave a more detailed statement, which 

was transcribed, to other police officers. In those statements, 

Fry admitted that he had shot Jacobs several times and that he 

and Hinson had tied Jacobs' necktie to the bumper of the Ford 

Explorer and had dragged Jacobs down the dirt road. Fry further 
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admitted that Hinson "just . . . helped [him] move the body and 

. . . steal the vehicle" and that Hinson had gone through Jacobs' 

wallet. 

 Fry further related to the police that, during the previous 

night, he and Hinson had planned to steal a new car from a 

dealership on the pretense of conducting a test drive and then to 

use it to leave the area. They also had decided to kill any 

salesperson who insisted on accompanying them. 

 The next day, Fry and Hinson went to the Bennett Ford 

dealership and asked for Jacobs because Fry previously had talked 

with Jacobs about a car. They told Jacobs that Fry had to show 

the vehicle to his grandmother who lived in the Exter Mill area 

of Chesterfield County. 

 Fry, accompanied by Hinson and Jacobs, drove the vehicle 

down the dirt road where he stopped on the pretense of checking 

the spare tire. The three men exited the car, and Jacobs walked 

to the rear of the vehicle to check the tire. Then, as Jacobs 

walked away from the vehicle, smoking a cigarette, Fry told 

Jacobs to "look at that owl," at which time Fry shot Jacobs in 

the back. Jacobs exclaimed, "What's going on?" and tried to run 

to the vehicle. More shots were fired into Jacobs while he 

pleaded not to be killed. After the additional shots had been 

fired, Jacobs was in so much pain that he begged Fry to "go ahead 

and . . . finish me off." The last shot was fired at close range 

near the front of Jacobs' face. 
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 The medical examiner testified that Jacobs died as a result 

of 11 gunshot wounds to his head, chest, and abdomen. Three of 

the 11 shots were to Jacobs' head, one of which entered his brain 

and alone was lethal. Four bullets were fired into the front of 

Jacobs' chest, injuring his heart and lungs. One bullet, fired 

into Jacobs' upper abdomen, injured his liver. The medical 

examiner opined that any one of these bodily wounds was 

potentially lethal. There also were three gunshot wounds in 

Jacobs' back, one of which injured his kidneys and aorta. 

According to the medical examiner, only the lethal wound to the 

brain was capable of causing an immediate loss of consciousness. 

 The medical examiner also found on the top, rear of Jacobs' 

head a large scrape that was consistent with Jacobs' having been 

dragged by the Ford Explorer. The examiner opined that it was 

more likely than not that Jacobs was alive when dragged because 

the scrape was very red. 

 B 

 In the penalty phase of the trial, the Commonwealth 

presented evidence that Fry had broken into, and stolen property 

from, three churches and a fire department. Fry also had 

admitted to setting fire to two residences, to vandalizing 

automobiles, and to having activated 10 to 12 false fire alarms. 

 Additionally, Fry admitted that he and a friend had dug up a 

grave site and had removed the corpse's skull because he wanted 

to "see what a man looked like after he was dead." 
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 The owner of Bennett Ford described Jacobs as a very kind 

person and an excellent employee. He also testified that, since 

the murder, his sales force has been reluctant to accompany male 

 customers on test drives, and his top salesperson, a female, is 

afraid to accompany male customers to the dealership's rear lot 

after dark. 

 Jacobs' widow testified that her husband was 42 years old 

when he was murdered. She described Jacobs as a kind and loving 

husband and father to her young son. Since her husband's murder, 

Mrs. Jacobs has suffered severe anxiety and depression, requiring 

medication. She has been taken to the hospital two or three 

times, has missed nine weeks of work, and has undergone 

counseling. Her son also has been adversely affected by his 

stepfather's murder. 

 Fry presented extensive evidence about his background. Fry 

had been abandoned by his mother and had never known the identity 

of his father. Lois White, Fry's great-aunt, testified that Fry 

had been raised by his maternal great-grandmother, Alma Lipford. 

 Although Fry had attended a church and sang in the choir, he had 

had few friends. He also had not been involved in athletics or 

other organized activities. White also testified that she never 

had seen Fry resort to violence, and she said that Fry was very 

remorseful for what he had done. Alma Lipford testified that she 

had provided for Fry's material needs and raised him "like a 

son," and she essentially corroborated Lois White's testimony 
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about Fry's background, experiences, and attitude. 

 A high school guidance counselor testified that Fry had been 

enrolled in a special education class for the emotionally 

disturbed. The counselor also testified that Fry's academic 

performance had been "low average" and that Fry had experienced 

difficulty performing in the lowest level classes. 

 An inmate in the county jail had known both Fry and Hinson 

approximately a year and a half. The inmate believed that Hinson 

was "the leader of [Fry]." 

 A psychologist testified that Fry's full scale IQ score of 

77 was in the low average range of intelligence. Fry performed 

spelling and reading skills at the fifth grade level, and he 

performed arithmetic skills at the ninth grade level. The 

psychologist diagnosed Fry as suffering from a dependent 

personality disorder and stated that Fry presented some features 

of void and schizoid personality disorders, but that Fry does not 

suffer from a mental illness. 

 A physician, who emphasizes counseling in his practice, 

opined that Fry's personality disorders and retarded social 

development resulted from his abandonment by his mother and the 

peculiarities of his great-grandparents' household. The doctor 

conceded, however, that Fry does not suffer from mental illness 

or mental retardation. 

 Four police officers testified that Fry had been polite, 

respectful, and forthright about his involvement in Jacobs' 
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murder and the other criminal activities. The manager of a 

supermarket where Fry had worked after school also described Fry 

as polite and respectful. 

 III 

 A 

 As we have said, Fry's sole contention on appeal is that his 

death sentence is excessive or disproportionate to the penalty 

imposed in similar cases. He compares his case to other cases in 

Chesterfield County which, he asserts, were more egregious 

examples of "vileness." He also asserts that the following 

factors militate against imposition of the death sentence: his 

age (19 years) at the time of the murder; his role in the offense 

(arguing that he was the "triggerman, but not the supplier of the 

weapon or ammunition" and that he was the "follower, not 

leader"); his family background; his psychological background; 

his attitude towards the police (i.e., polite, respectful, 

cooperative); and his attitude towards the crime (i.e., 

remorseful). 

 Code § 17-110.1(C)(2) requires this Court to consider and 

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 standard 

governing our proportionality review, however, "does not require 

that a given capital murder case `equal in horror the worst 

possible scenario yet encountered.'" Chabrol v. Commonwealth, 
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245 Va. 327, 335, 427 S.E.2d 374, 378 (1993), quoting Turner v. 

Commonwealth, 234 Va. 543, 556, 364 S.E.2d 483, 490, cert. 

denied, 486 U.S. 1017 (1988). Rather, we determine "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. 

___, 113 S.Ct. 1862 (1993); Code § 17-110.1(C)(2). Moreover, we 

do not confine our review to a single city or county; instead, we 

compare the case before us to all capital murder cases this Court 

has reviewed, giving particular attention to cases similar in 

crime and aggravating factor. Cardwell v. Commonwealth, 248 Va. 

501, 516-17, 450 S.E.2d 146, 156 (1994), cert. denied, ___ U.S. 

___, 115 S.Ct. 1826 (1995); Chabrol, 245 Va. at 335, 427 S.E.2d 

at 378-79; Coppola v. Commonwealth, 220 Va. 243, 259, 257 S.E.2d 

797, 808 (1979), cert. denied, 444 U.S. 1103 (1980). 

 To this end, we have considered the compilation of the 

records of all capital murder cases reviewed by this Court 

pursuant to Code § 17-110.1(E), paying particular attention to 

those cases in which the sentence of death was based upon the 

"vileness" factor. Our review reveals that the present case is 

comparable to a number of capital murder cases in which the 

predicate offense was robbery and the sentence of death was 

imposed based upon the "vileness" factor. See, e.g., Cardwell, 

supra; Turner, supra; Correll v. Commonwealth, 232 Va. 454, 352 
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S.E.2d 352, cert. denied, 482 U.S. 931 (1987); Wise v. 

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

475 U.S. 1112 (1986); Boggs v. Commonwealth, 229 Va. 501, 331 

S.E.2d 407 (1985), cert. denied, 475 U.S. 1031 (1986); Jones v. 

Commonwealth, 228 Va. 427, 323 S.E.2d 554 (1984), cert. denied, 

472 U.S. 1012 (1985). 

 After conducting the requisite proportionality review, we 

conclude that Fry's sentence of death is neither excessive nor 

disproportionate to penalties generally imposed by other 

sentencing bodies in the Commonwealth. We agree with the trial 

court's assessment that Fry's conduct in committing the offense 

"was outrageously and wantonly vile, horrible, inhumane, . . . 

and that [he] committed an aggravated battery." 

 B 

 Although Fry does not contend that his sentence was imposed 

under the influence of passion, prejudice, or any other arbitrary 

factor, we also are required to consider and determine whether 

the sentence was so imposed. Code § 17-110.1(C)(1). 

 From an examination of the record, we do not find that the 

sentence of death resulted from any arbitrary factor. To the 

contrary, the record fully supports the conclusion that the trial 

court acted with extreme care in applying the law to the 

undisputed facts surrounding the commission of the crime and gave 

full consideration to Fry's evidence in mitigation. 

 IV 
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 In sum, we conclude, from the sentence review required by 

Code § 17-110.1, that Fry's death sentence was not imposed under 

the influence of passion, prejudice, or any other arbitrary 

factor and is not excessive or disproportionate to the penalty 

imposed in similar cases. Accordingly, we will affirm the 

sentence of death. 

Affirmed.