Present: All the Justices 

ANDRE L. GRAHAM 

v. Record Nos. 942189 and 942192 

OPINION BY JUSTICE HENRY H. WHITING 

 June 9, 1995 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

James B. Wilkinson, Judge 

 Andre L. Graham was tried upon indictments charging him with 

eight felonies arising out of the October 8, 1993 shootings of 

Sheryl L. Stack and Edward Martin. One indictment charged Graham 

with Stack's capital murder with a deadly weapon during the 

commission of Martin's robbery, another indictment charged Graham 

with an attempt to rob Stack, two indictments charged Graham with 

Martin's robbery and malicious wounding, and the remaining four 

indictments charged Graham with the use and display of a firearm 

in a threatening manner during the commission of the foregoing 

four felonies. 

 In the first stage of a bifurcated trial conducted pursuant 

to Code §§ 19.2-264.3 and -264.4, a jury convicted Graham of all 

eight charges. A subsequent proceeding was conducted under the 

provisions of Code § 19.2-295.1 in which the Commonwealth 

introduced Graham's record of prior convictions.*

 The jury then 

 

 *Graham's prior convictions were: November 20, 1991: 

unauthorized use of an automobile, assumption of the name of 

another, concealed weapon, trespass on posted property; January 

17, 1992: failure to appear in court, possession of cocaine, 

possession of cocaine with firearm; August 25, 1994: capital 

murder, use of firearm in commission of capital murder, robbery, 

use of firearm in commission of robbery, capital murder, robbery, 

use of firearm in commission of robbery. 
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fixed Graham's punishments at the following periods of 

imprisonment for six of the non-capital convictions: life for 

the aggravated malicious wounding, 25 years for the robbery, 10 

years for the attempted robbery, and five years each for three of 

the firearm convictions, all of which the court imposed. 

 In the second stage of the capital murder trial, the jury 

fixed Graham's punishment for the capital murder of Stack at 

death based on its findings of "future dangerousness" and 

"vileness," and at five years imprisonment for the firearm 

conviction in connection with the murder. The court then 

referred the matter to the probation officer for an investigation 

and report pursuant to the provisions of Code § 19.2-264.5. 

After considering the report, the court imposed the death 

sentence and the penitentiary sentence for the firearm 

conviction. 

 Graham is before this Court for automatic review of his 

death sentence, Code § 17-110.1(A), and we have consolidated that 

review with the appeal of his capital murder conviction. Code 

§ 17-110.1(F). We have also certified Graham's appeal of his 

remaining convictions from the Court of Appeals, transferring 

jurisdiction over that appeal to this Court pursuant to Code 

§ 17-116.06, thereby consolidating all these matters. 

 Since the Commonwealth prevailed in the trial court, we 

review the evidence and all reasonable inferences arising 

therefrom in the light most favorable to the Commonwealth. Swann 
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v. Commonwealth, 247 Va. 222, 225, 441 S.E.2d 195, 198, cert.

denied, ___ U.S. ___, 115 S.Ct. 234 (1994). 

 EVIDENCE 

 After finishing their work at the Steak and Ale Restaurant 

on Midlothian Turnpike in south Richmond on the night of October 

7, 1993, Stack drove her Volvo sedan and Martin drove his red 

sports car to another restaurant in Richmond where they had 

something to eat. James Jones, the night auditor of a motel 

adjacent to the Steak and Ale Restaurant parking lot, was 

standing outside the motel talking to another employee when he 

saw Stack and Martin return to the parking lot after 2:00 a.m. on 

October 8. Jones noticed Stack and Martin standing beside one of 

the two cars talking and kissing until Jones returned to work 

inside the motel. Twenty to twenty-five minutes later, Jones 

heard two loud noises, "two or three seconds [apart], maybe up to 

ten seconds" and saw a third car being driven from the area. 

 When Jones looked toward the parking lot, he noticed that 

the Volvo's engine was running and its lights were on, but that 

the red sports car was gone. As he walked toward the Volvo, 

Jones noticed a body lying on the ground and immediately called 

the police. 

 Harold Giles, a Richmond Police officer who was in the 

immediate area, got Jones's call "[a]bout 3:59 [a.m.]" and was at 

"the scene `within a minute or so.'" He found Stack and Martin, 

both shot in the head, lying face down in a pool of blood, with 
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their hands touching. Giles testified that "they were trying to 

communicate to each other, but I couldn't make out what they were 

saying." In addition to observing that the Volvo's engine was 

running and its lights were on, Giles also noticed that the front 

passenger door was open. Giles "protect[ed] the crime scene 

until the detectives arrived." 

 When Detective Thomas R. Searles arrived at the scene at 

"approximately" 6:00 a.m., Stack and Martin had been taken to the 

hospital. Searles took photographs and collected the physical 

evidence. One photograph of the front seat of Stack's car shows 

that it had been ransacked, with Stack's personal property and 

purse in disarray in the front seat. Searles found a .45 caliber 

cartridge case and two .45 caliber bullets that were 

approximately one foot apart. 

 Stack was comatose when she arrived at the hospital and died 

some time later without regaining consciousness. Although Martin 

had been shot in the head and suffered extensive brain injuries, 

he survived and was able to testify. Dr. William Broaddus, a 

neurosurgeon who treated Martin, testified that the bullet that 

entered Martin's head damaged the left side of his brain, 

resulting in Martin's loss of his left eye, a partial paralysis 

on the right side of his body, and an impairment in his ability 

to generate language. However, Dr. Broaddus said that Martin's 

comprehension, memory, and intelligence were perfectly normal, 

only his "ability to express what he is thinking is 
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impaired. . . . It just takes him a lot longer and with a lot 

more effort." 

 Martin testified that he and Stack were seated in her car in 

the parking lot when a man Martin later identified from a 

photographic spread as Graham approached the car. Graham had a 

gun and told them to get out of the car. After Stack and Martin 

got out of the car, Graham told Martin to hand over his wallet 

and car keys to another man who was with him, but unarmed. As 

Graham held "the gun on [Stack and Martin]," the other man first 

got in Stack's car and started it, then got in Martin's car, 

where, according to Martin, the other man "saw" Martin's compact 

disc recordings (CDs). While the other man was in Martin's car, 

Graham told Stack and Martin that if they would lie down on the 

parking lot and close their eyes, he would not hurt them. Even 

though both did as they were directed, they were each shot in the 

head as they lay on the ground with their eyes closed. 

 Although Martin does not remember how long it was after he 

closed his eyes that he was shot, Graham was the last person 

Martin saw with a gun before he closed his eyes. After he was 

shot, Martin realized that his "car was being started and the car 

was coming at [him] so [he] quickly rolled over to get out of the 

way of the car." After they were shot, Stack and Martin were 

holding hands and he was trying to talk to her. 

 Priscilla Booker, who had been living with Graham in an 

apartment on Midlothian Turnpike since early July 1993, testified 
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that on the morning of Stack's murder, she saw Graham in the same 

red car as that shown in a police photograph of Martin's car. 

Later that morning, as Booker was watching the news on a local 

television station, she mentioned to Graham the reports of the 

shooting in the Steak and Ale parking lot. Graham's response 

was, "why do [you] worry about other people." 

 Graham then asked Booker to stop looking at the news and, 

when she continued to do so, he became upset. When Booker asked 

Graham why she should not watch the news, he replied that "he 

knew who did it[,] but he didn't." 

 Two or three days after the Stack murder, Booker found 

Martin's box of over 200 CDs in the trunk of her car. Graham 

told her that he had bought these CDs for $10, and Booker put 

them in storage. The police recovered Martin's car a few days 

after the crimes, but were unable to obtain any useful 

fingerprint evidence from it. 

 On the morning of December 3, 1993, Graham, who was 

incarcerated in the Chesterfield County jail on another charge, 

made a telephone call to Booker in the presence of Gary McGregor, 

a Chesterfield County deputy sheriff. Graham told Booker several 

times during the conversation to "go into the closet, get the bag 

with the contents and get rid of it." McGregor immediately 

reported this conversation to his superiors. Shortly thereafter, 

Detective W.F. Showalter of the Chesterfield County Police 

Department went to Booker's apartment. There he found a .45 
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caliber pistol in a plastic bag in a linen closet. 

 The gun was heavily oiled, and the police were unable to 

recover any fingerprints from it. However, Booker testified that 

she had seen the transaction in which Graham had obtained the gun 

in September 1993, and that since that time, Graham had kept it 

in his constant possession. Booker testified that Graham even 

slept with it. After examining the gun, the bullets, and the 

cartridge case found at the scene, Ann Davis Jones, a firearms 

identification expert, testified that Graham's gun was the weapon 

from which the bullets and the cartridge case found at the scene 

had been fired and ejected. 

 The police found Martin's CDs in a storage locker rented by 

Booker's mother. The CDs were examined by Leland W. Kennedy, a 

fingerprint expert, who testified that 31 of the 48 identifiable 

fingerprints found on the CDs were those of Graham. 

ISSUES PREVIOUSLY DECIDED 

 Five of the issues that Graham presents for appeal he 

candidly admits we have previously decided adversely to his 

contentions. He further states that he "has no additional 

argument that has not been raised by other death penalty 

defendants in cases previously cited by this court." We know of 

no reasons to modify our previous decisions and, therefore, 

reject each of the following claims: 

 1. The statutes fail "to guide the jury's discretion in its 

consideration of the `vileness' and `future dangerousness' 
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aggravating factors." Rejected in Williams v. Commonwealth, 248 

Va. 528, 535, 450 S.E.2d 365, 371 (1994). 

 2. The capital murder statutes "allow the jury to use the 

evidence of prior convictions to impose the sentence of death, 

violating defendant's protection against double jeopardy." 

Rejected in Joseph v. Commonwealth, 249 Va. 78, 82, 452 S.E.2d 

862, 865 (1995); Mickens v. Commonwealth, 247 Va. 395, 404, 442 

S.E.2d 678, 684-85, vacated on other grounds, ___ U.S. ___, 115 

S.Ct. 307 (1994). 

 3. "The death penalty, per se, constitutes cruel and 

unusual punishment under current standards of decency." Rejected 

in Joseph, 249 Va. at 82, 452 S.E.2d at 865; Williams, 248 Va. at 

536, 450 S.E.2d at 371. 

 4. The "[f]ailure to give adequate jury instructions on 

mitigation, use of model jury instructions, and jury verdict 

forms inhibits the jury from giving independent weight to aspects 

of the defendant's character and record and to circumstances of 

the offense that are proffered in mitigation." Rejected in 

Breard v. Commonwealth, 248 Va. 68, 74, 445 S.E.2d 670, 675, 

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

 5. The "[f]ailure of Virginia to provide for meaningful 

appellate review deprives [Graham] of statutory rights and due 

process of law." Rejected in Joseph, 249 Va. at 82, 452 S.E.2d 

at 865; Williams, 248 Va. at 536, 450 S.E.2d at 371. 

 GUILT PHASE 
 -9- 

 Graham does not argue that the evidence is insufficient to 

establish his presence when these crimes were committed. Indeed, 

in exercising his right of allocution before sentencing, Graham 

told the court, "[i]t was three of us there," but Graham denied 

that he was the "triggerman." 

 Graham contends that the evidence is insufficient to prove 

that he was the "triggerman." Since Martin cannot remember how 

long it was after he closed his eyes before he and Stack were 

shot, Graham argues that the Commonwealth had the burden of 

excluding the hypothesis that Graham might have given the gun to 

the other man, who then shot Stack and Martin. 

 Nothing in the evidence suggests that Graham may have given 

the gun to the other man in the interval between the time Martin 

closed his eyes and he and Stack were shot. Instead, Graham's 

ownership of the gun, his retention of the gun even when 

sleeping, Martin's testimony, and Graham's direction to Booker to 

"get rid of the bag" containing the gun, taken together, amply 

justify the conclusion that Graham was the person who shot the 

victims. 

 Since nothing in the evidence supports Graham's hypothesis, 

we conclude that his hypothesis does not spring from the 

evidence, but from the imagination of Graham's counsel. 

Therefore, the Commonwealth had no duty to negate this 

hypothesis. Cook v. Commonwealth, 226 Va. 427, 433, 309 S.E.2d 

325, 329 (1983); Turner v. Commonwealth, 218 Va. 141, 148-49, 235 
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S.E.2d 357, 361 (1977). Accordingly, we find no merit in this 

contention. 

 Next, Graham contends that the court erred in failing to 

give an instruction that he described as a "cautionary eyewitness 

identification instruction." This instruction provided: 

 In deciding what the facts are, you must consider 

all the evidence. In doing this, you must decide which 

testimony to believe and which testimony not to 

believe. You may disbelieve all or any part of any 

witness's testimony. In making that decision, you may 

take into account a number of factors including the 

following: 

 1. Was the witness able to see, or hear, or know 

the things about which the witness testified? 

 2. How well was the witness able to recall and 

describe those things? 

 3. What was the witness's manner while 

testifying? 

 4. Did the witness have any interest in the 

outcome of this case or any bias or prejudice 

concerning any party or any matter involved in the 

case? 

 5. How reasonable was the witness's testimony 

considered in light of all the evidence in the case? 

 6. Was the witness's testimony contradicted by 

what that witness has said or done at another time, or 

by the testimony of other witnesses, or by other 

evidence? 

 In deciding whether or not to believe a witness, 

keep in mind that people sometimes forget things. You 

need to consider therefore whether a contradiction is 

an innocent lapse of memory or an intentional 

falsehood, and that may depend on whether it has [to] 

do with an important fact or with only a small detail. 

 These are some of the facts you may consider in 

deciding whether to believe testimony. 

 The weight of the evidence presented by each side 
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does not necessarily depend on the number [of] 

witnesses testifying on one side or the other. You 

must consider all the evidence in the case, and you may 

decide that the testimony of a smaller number of 

witnesses on one side has greater weight than that of a 

larger number on the other. 

 All of these are matters for you to consider in 

finding the facts. 

 We rejected a similar claim in Satcher v. Commonwealth, 244 

Va. 220, 256, 421 S.E.2d 821, 843 (1992), cert. denied, 507 U.S. 

___, 113 S.Ct. 1319 (1993). Since the Satcher jury was fully 

instructed on the presumption of innocence and reasonable doubt, 

we held that a separate instruction on identity was not required. 

Here, the court fully instructed the jury on the presumption of 

innocence, the Commonwealth's burden of proving guilt beyond a 

reasonable doubt, the consideration of circumstantial evidence, 

and the assessment of the credibility of witnesses and the weight 

of the evidence. Accordingly, we conclude that Graham's proposed 

instruction was not required, and that the court did not err in 

refusing to grant it. 

 Finally, Graham contends that the trial court erred in its 

refusal to set the verdicts aside and grant a new trial because 

of the Commonwealth's alleged violation of the court's order 

requiring it to disclose all exculpatory evidence prior to trial. 

 According to Graham, this alleged violation deprived him of the 

due process rights articulated in Brady v. Maryland, 373 U.S. 83 

(1963). 

 The alleged exculpatory evidence was the misidentification 
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by Martin of the other man present at the scene in a photographic 

spread of six suspects presented at the same time Martin picked 

Graham from another photographic spread. Prior to trial, the 

Commonwealth advised Graham only that Martin was unable to 

identify the other man. However, we will not consider this 

contention since Graham learned of Martin's misidentification 

during his cross-examination of one of the Commonwealth's 

witnesses, and he failed to bring the matter to the court's 

attention at that time by way of a motion for mistrial, a motion 

for a continuance, or a request for other relief. Instead, he 

used the fact of Martin's misidentification to his own advantage 

in his argument to the jury and raised the Brady issue only after 

the jury returned an adverse verdict. By that time, he had 

waived the point. Therefore, we will not consider his claim that 

the court erred in denying his motion for a new trial. Rule 

5:25. 

 SENTENCE REVIEW 

 Graham does not argue either that his death sentence was 

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

arbitrary factor, or that it is excessive or disproportionate to 

the penalty in similar cases. Nevertheless, we have reviewed his 

death sentence on the record pursuant to the mandate of Code 

§ 17-110.1. 

 At the sentencing phase, the Commonwealth referred to 

Graham's record of previous convictions. It also introduced 
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testimony showing Graham's two prior capital murder convictions 

on August 25, 1994. These capital murder convictions arose from 

Graham's participation in the murder and robberies of a 

Chesterfield County couple on November 30, 1993. Both were shot 

in the head. 

 Graham introduced mitigation evidence. Sherry Oliver, a 

22-year-old friend of Graham, testified that Graham "was polite" 

and never got angry with her or her two children. Jacqueline 

Graham, Graham's mother, testified that he was 24 years old, that 

he had one child, age 4, that he was always "very respectful" 

with her and any other adult, and that he had never been violent 

in his life. 

 Dr. Leigh D. Hagan, a forensic psychologist who examined and 

tested Graham, testified that Graham had "an overall intelligence 

score of 84, which places him mid-way in the lower average 

range. . . . It tells us that this is not a matter of mental 

retardation." Dr. Hagan described the results of researchers who 

studied the incarceration history of 453 murderers whose death 

sentences had been commuted to life imprisonment and found that 

only nine-tenths of one percent committed other homicides in 

prison during the following 15 years of imprisonment. Based upon 

this study and his examination of Graham, Dr. Hagan opined that 

Graham "will not pose any greater threat, ongoing threat to 

society than any other murderer given a life sentence." 

 However, our review discloses nothing in the record to 
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indicate that the jury was influenced by any arbitrary factor in 

imposing the death sentence. And clearly the jury's findings of 

both the "vileness" and "future dangerousness" factors are amply 

supported by the evidence. 

 Further, we have examined the records that we have compiled 

of all capital murder cases reviewed by this Court, Code 

§ 17-110.1, including those in which life sentences were imposed. 

 In doing so, we have paid particular attention to those cases in 

which the sentence was based on both the "vileness" and "future 

dangerousness" predicates. Those cases are collected in Spencer 

v. Commonwealth, 238 Va. 295, 318-20, 384 S.E.2d 785, 799-800 

(1989), cert. denied, 493 U.S. 1093 (1990), supplemented in 

Mueller v. Commonwealth, 244 Va. 386, 413-14, 422 S.E.2d 380, 397 

(1992), cert. denied, 507 U.S. ___, 113 S.Ct. 1880 (1993), and in 

Williams, 248 Va. at 550, 450 S.E.2d at 379. Since Williams, the 

following cases also have considered sentences in which both 

predicates were involved: Wilson v. Commonwealth, 249 Va. 95, 

452 S.E.2d 669 (1995), and Burket v. Commonwealth, 248 Va. 596, 

450 S.E.2d 124 (1994), cert. denied, ___U.S. ___, 115 S.Ct. 1433 

(1995). Based upon our review of these records, we conclude that 

Graham's death sentence was not excessive or disproportionate, 

considering both the crime and the defendant. 

 CONCLUSION 

 Finding no error in the trial court's judgments and 

perceiving no other reason to set aside the sentence of death, we 
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will affirm the convictions and sentences. 

Record No. 942189 -- Affirmed. 

Record No. 942192 -- Affirmed.