Present: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and 

Kinser, JJ., and Compton, Senior Justice 

MARK WESLEY BAILEY 

 OPINION BY 

v. Record Nos. 992840, JUSTICE LAWRENCE L. KOONTZ, JR. 

 000151 April 21, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Walter J. Ford, Judge 

As mandated by Code § 17.1-313, we review the convictions 

and death sentences imposed upon Mark Wesley Bailey (Bailey), 

for the capital murder of Nathan Mark Bailey (Nathan), Bailey’s 

two-year-old son. We also review Bailey’s convictions for the 

first-degree murder of Katherine Ester Bailey (Katherine), 

Bailey’s wife, and use of a firearm in the commission of capital 

murder and first-degree murder.1

 

1

By order entered January 27, 2000, we certified from the 

Court of Appeals of Virginia to this Court the record of 

Bailey’s appeal of the noncapital convictions (Record No. 

000151). The effect of the certification is to transfer 

jurisdiction over the noncapital appeal to this Court. Code 

§ 17.1-409(A). Because the certification occurred after the 

filing of the opening brief in the capital appeal (Record No. 

992840), we permitted Bailey to file a supplemental brief based 

upon the petition for appeal he had filed in the Court of 

Appeals. Only the first of Bailey’s assignments of error in the 

supplemental brief raises an issue not already raised in the 

capital appeal. The remaining assignments of error in the 

supplemental brief, numbers 2, 3, and 4, correspond to 

assignments of error numbers 10, 11, and 12 in the capital 

appeal. Accordingly, we will address those issues in this 

opinion with reference to the latter designations. 
2

BACKGROUND 

Under familiar principles of appellate review, we will 

review the evidence in the light most favorable to the 

Commonwealth, the party prevailing below. Clagett v. 

Commonwealth, 252 Va. 79, 84, 472 S.E.2d 263, 265 (1996), cert.

denied, 519 U.S. 1122 (1997). In his opening brief, Bailey 

recounts a self-serving narrative of his wife’s infidelity which 

he contends drove him to commit these crimes. The facts 

underlying this narrative were developed during the penaltydetermination phase of Bailey’s trial as evidence in mitigation 

against the death penalty. The prurient details of this 

evidence are not relevant to any issue to be considered in these 

appeals other than the appropriateness of the imposition of the 

death penalty. Accordingly, we will limit our present 

recitation of the facts to those relevant to our consideration 

of Bailey’s assignments of error. 

Bailey was married to Katherine, his cousin whom he had 

known most of his life and with whom he had been romantically 

involved for over a year, on December 25, 1993 in Reno, Nevada. 

In March 1996, Katherine gave birth to the couple’s son, Nathan. 

After the birth of their son, the couple became emotionally 

estranged, although they continued living in the same household. 
3

In mid-1998, Bailey began relating to his co-workers a 

fabricated account of his wife having received threatening 

telephone calls and notes. Bailey subsequently admitted to 

police that he invented these stories in order to divert 

suspicion from himself when he murdered his wife. In August 

1998, Bailey borrowed a .22-caliber pistol from a friend and 

purchased ammunition for the pistol. 

On September 10, 1998, Bailey awoke about 4:30 a.m., went 

to the bedroom where his wife was sleeping, and shot her three 

times in the head with the borrowed pistol. Bailey then heard 

Nathan awaking in the next bedroom. He went to his son’s 

bedroom and shot the child twice in the head as the child was 

climbing out of bed. 

Bailey washed blood off his face and dressed for work. He 

cut the bathroom window screen with a razor knife and cut the 

outside telephone line in order to give the appearance that a 

break-in had occurred. Bailey then left for work, taking the 

pistol and razor knife with him. 

When Bailey arrived at work, he told Richard Moravec, his 

supervisor, that his wife had received another threatening note 

that read “X-U-T” or “X-U-P” and that he believed this meant 

“Time’s up.” Bailey repeated this story to Joseph Yount, 

Moravec’s supervisor. A short time later, Bailey told Moravec 
4

that he had received a telephone call from someone claiming that 

he “had [Bailey’s] wife.” Moravec reported these events to 

Yount, who instructed Moravec to call the police. Yount then 

accompanied Bailey to Bailey’s home. 

When Yount and Bailey arrived at Bailey’s home, police had 

already arrived and an officer emerging from one of the bedrooms 

stopped the two men in the living room. Yount suggested that 

they wait outside. Yount later testified that as they waited 

Bailey “was stone-faced and cold-looking.” Thomas Killilea, a 

detective with the Hampton Police Department, informed Bailey 

that his wife and son were dead. Killilea testified that upon 

hearing this, Bailey lurched forward and appeared to have tears 

in his eyes. Bailey then told Killilea about the threatening 

telephone calls and notes that he claimed his wife had received. 

Killilea asked Bailey to accompany him to the police 

station and Bailey agreed. Bailey rode in the front of 

Killilea’s police vehicle; Yount rode in the back seat. Bailey 

was not under arrest at this time. At the police station, 

Bailey signed a consent form allowing the police to search his 

home; he also consented to take a polygraph test. While at the 

police station, Bailey was offered food, drink, and the 

opportunity to use the lavatory. He engaged the police officers 

in casual conversation and was allowed to step outside to smoke 
5

cigarettes. During this time, Bailey wrote a statement 

detailing the fictitious story of the threats made against his 

wife. 

The polygraph was administered to Bailey at 12:15 p.m. 

During the polygraph, the examiner detected deception in 

Bailey’s response to the question, “Are you intentionally 

withholding the name of the killer . . .?” The examiner asked 

Bailey if he thought it was time to tell the detectives “what 

was really going on.” Bailey looked at the floor and answered, 

“[Y]eah.” 

At 1:42 p.m., Bailey was taken to an interview room where 

Killilea and Detective Jimmy L. Forbes spoke to him for a little 

over an hour. Bailey was mostly unresponsive during this 

interview. Forbes raised the subject of his own religious 

beliefs. He suggested that Bailey needed to get his “heart 

right with the Lord and that his soul would not rest until he 

did.” Bailey asked for a soft drink. When Killilea left the 

room to get the soft drink, Bailey took a legal pad and pen from 

the table in the interview room and wrote, “I Mark Bailey do 

hereby without any coercsion [sic] admit to the murder of my 

wife and son.” 

When Killilea returned with the soft drink, Forbes showed 

him the statement Bailey had written. Bailey then said, “You 
6

got what you wanted. I guess I’m not leaving now.” At 3:19 

p.m., Bailey was advised of his Miranda rights, and the 

detectives began an interrogation that lasted until 5:45 p.m. 

During this period Bailey wrote out answers to the detectives’ 

questions and a videotape of his confession to the murders was 

made. 

During his stay at the police station Bailey never asked to 

leave, nor did he request an attorney. At the conclusion of the 

interrogation, Bailey remarked to Killilea, “You probably think 

I’m an [expletive deleted] for killing my wife and family - - or 

my wife and son.” The detective explained that if he had 

thought that he would not have treated Bailey with dignity and 

respect. Bailey agreed he had been “treated well.” 

PROCEEDINGS 

A. Pre-trial

On December 7, 1998, the grand jury of the City of Hampton 

returned an indictment against Bailey charging him with the 

capital murder of Nathan as part of the same act or transaction 

as the killing of Katherine, Code § 18.2-31(7), “and/or” as the 

killing of a person under the age of fourteen by a person 

twenty-one years of age or older, Code § 18.2-31(12). In 

separate indictments, Bailey was also charged with the firstdegree murder of Katherine, Code § 18.2-32, and with one count 
7

of the use of a firearm in each of the two killings, Code 

§ 18.2-53.1. 

On January 12, 1999, Bailey filed a motion for the 

appointment of an “expert investigator.” Bailey contended that 

he needed the assistance of an investigator to “locate essential 

witnesses and data, [and] examine and evaluate testimony and 

documents . . . likely to be significant at a capital murder 

trial.” By order entered that same day, the trial court denied 

the motion, finding there was no “sufficient reasonable cause 

for an investigator to be assigned to the defense in this case.” 

On February 9, 1999, Bailey filed a motion to have the 

Virginia capital murder and death penalty statutes declared 

unconstitutional. Within a supporting memorandum filed with 

that motion, Bailey set out various arguments that the manner in 

which capital murder trials are conducted and death sentences 

reviewed on appeal violated aspects of the Fifth, Sixth, Eighth, 

and Fourteenth Amendments of the United States Constitution. 

Since Bailey challenges the denial of his motion by the trial 

court in this appeal, we need not recite those arguments here, 

but will address them in our discussion of Bailey’s assignments 

of error. 

On that same day, Bailey filed a motion for discovery and 

inspection. Within that motion, Bailey made a litany of 
8

requests for information from the Commonwealth, which, as his 

counsel subsequently conceded during argument of the motion, 

went well beyond any reasonable interpretation of what the 

Commonwealth could be required to provide a defendant under Rule 

3A:11 and the dictates of Brady v. Maryland, 373 U.S. 83 (1963). 

The trial court, acknowledging that the Commonwealth had an 

“open file” policy, granted the motion only to the extent that 

criminal discovery is required by Rule 3A:11. 

On March 29, 1999, Bailey filed a motion to suppress the 

statements he made to the police on September 10, 1998. During 

oral argument in support of that motion, Bailey contended that 

any statements made to the police prior to his having been read 

his Miranda rights were the product of an improper custodial 

interrogation. He further contended that his confession given 

thereafter was not voluntary because the detectives through 

trickery and manipulation had overborne his will. After hearing 

evidence from the three detectives principally responsible for 

the interview and interrogation of Bailey, the trial court found 

that Bailey had not been in custody prior to his initial 

admission of culpability for the murders and that his subsequent 

confession was not the result of his will having been overborne 

by the detectives. The trial court denied the suppression 

motion. 
9

On May 5, 1999, Bailey filed a motion for a bill of 

particulars requesting, inter alia, that the Commonwealth 

specify which of the aggravating factors of future dangerousness 

or vileness it would rely upon in seeking to impose the death 

penalty and the evidence in support thereof it would present. 

Following oral argument on this motion, the trial court denied 

the motion, finding that the indictment adequately informed 

Bailey of the nature of the charges brought against him. 

B. Guilt-determination Phase

On July 20, 1999, a three-day jury trial commenced in the 

trial court. Evidence in accord with the facts recited above 

concerning the events of September 10, 1998 was developed 

through the testimony of various police officers and Bailey’s 

co-workers. In addition, the Commonwealth presented forensic 

evidence through the testimony of Assistant Chief Medical 

Examiner Dr. Leah L.E. Bush. 

Dr. Bush performed autopsies on the bodies of both victims. 

She testified that Katherine had sustained three gunshot wounds 

to the parieto-occipital area of the skull behind the left ear. 

From the absence of powder stippling on the body, Dr. Bush 

estimated that the shots had been fired from a distance of three 

feet or more and that any one of the three wounds would have 

been lethal. Dr. Bush further testified that Nathan had 
10

sustained two close range gunshot wounds to the head and that 

both shots penetrated the brain and either alone would have been 

lethal. 

The Commonwealth introduced photographs of the crime scene 

through the testimony of Patrol Officer Keith Tucker and 

paramedic Chris Skutans, who were among the first to arrive at 

the crime scene. Each testified that these photographs depicted 

what they saw inside the house, the only difference being that 

the house had been dark when they entered it and the photographs 

showed the scene illuminated rather than dark. The trial court 

admitted these photographs in evidence over Bailey’s objection 

that a proper foundation had not been laid for their admission. 

Bailey also objected to several of these photographs and to 

autopsy photographs of both victims on the grounds that they 

were inflammatory and irrelevant. The trial court overruled 

this objection, finding that the photographs were relevant to 

show the nature of the victims’ wounds. 

Bailey did not testify or offer any evidence in his defense 

in the guilt-determination phase. Rather, Bailey relied on the 

content of his statement to police, arguing to the jury that it 

showed he had not planned or intended to kill his son, but that 

he had done so in a moment of passion after he panicked when he 

realized that Nathan would be traumatized by finding his 
11

mother’s dead body. Similarly, he contended that the killing of 

Katherine was not premeditated, but the result of his mental 

anguish and emotional disturbance. 

Bailey objected to two instructions proffered by the 

Commonwealth that permitted the jury to find Bailey guilty of 

two counts of capital murder based upon the two theories of 

capital murder stated in the indictment. Bailey contended that 

the indictment charged only one count of capital murder. The 

trial court found that the “indictment is subject to two 

different, separate sections of the statute . . . and [it would 

be] proper to actually have two capital murder charges.” 

The jury found Bailey guilty of two counts of capital 

murder in the killing of Nathan as charged in the indictment, of 

first-degree murder in the killing of Katherine, and of both 

firearm charges. 

C. Penalty-determination Phase

Prior to the commencement of the penalty-determination 

phase, the Commonwealth elected not to present evidence of 

Bailey’s future dangerousness to society. Thus, the 

Commonwealth relied solely upon the vileness aggravating factor 

to establish the appropriateness of imposing death sentences for 

the two capital murder convictions. The Commonwealth presented 

evidence of vileness based upon the statutory definition that 
12

“the offense . . . involved . . . depravity of mind or an 

aggravated battery to the victim.” Code § 19.2-264.2. 

Dr. Bush again testified for the Commonwealth and 

reiterated her prior testimony concerning the gunshot wounds 

sustained by the two victims. She further testified that the 

manner in which Nathan was killed was consistent with an 

“execution-style gunshot wound.” The Commonwealth also 

presented victim-impact testimony from Katherine’s mother. 

Prior to resting its case, the Commonwealth asked the trial 

court to instruct the jury to also consider all the testimony 

from the guilt-determination phase in considering the sentences. 

Testifying for the defense, Dr. Evan Nelson, a clinical 

psychologist, described Bailey as suffering from a borderline 

personality disorder. Dr. Nelson testified that impulsive 

actions are characteristic of this condition. Dr. Nelson 

further opined that the killing of Nathan was “a very impulsive 

act . . . an impulsive, stupid, terrible, senseless act . . . 

and that fits with [a diagnosis of a] borderline personality.” 

As mentioned previously, the balance of Bailey’s evidence 

during the penalty-determination phase was directed toward 

establishing that his wife’s infidelity and aberrant lifestyle 

had emotionally traumatized Bailey and, thus, mitigated his 

culpability for having committed these crimes. Although the 
13

Commonwealth does not dispute the essential facts as recounted 

by Bailey’s witnesses, Bailey’s interpretation that the evidence 

showed him to be the “victim” of his wife’s emotional 

manipulation was by no means established beyond controversion. 

It was for the jury to determine what weight to accord this 

evidence in determining Bailey’s sentence. We are cognizant of 

the record and will consider it in our review of the jury’s 

sentence even though we do not recount that evidence. 

Bailey objected to the Commonwealth’s proposed verdict 

forms for the capital murder charges, which permitted the jury 

to impose a death sentence upon finding either that the killing 

of Nathan was vile because it resulted from an aggravated 

battery or because the murder resulted from a depravity of mind, 

or that both of these circumstances were present. Bailey 

contended that the forms were confusing, but acknowledged that 

the forms properly instructed the jury that it should impose a 

life sentence if it found that there was insufficient proof of 

the vileness aggravating factor under either theory relied upon 

by the Commonwealth. Bailey further indicated that he did not 

have alternative forms to proffer. The trial court adopted the 

Commonwealth’s verdict forms. 
14

The jury imposed the death sentence for each of the capital 

murder charges, a life sentence for the first-degree murder 

charge, and a total of eight years for the firearm charges. 

D. Post-trial

Prior to the sentencing hearing, Bailey filed a motion 

requesting that the trial court obtain the records of capital 

murder cases maintained by this Court pursuant to Code § 17.1-

313. The trial court denied the motion, indicating that it had 

already reviewed “a large volume” of relevant cases in 

anticipation of Bailey’s trial and sentencing and that it was 

therefore not necessary for the trial court to obtain and review 

additional records from this Court. 

In that same motion, Bailey sought to have the jury’s death 

penalty verdict set aside on the ground that the sentence was 

disproportionate to sentences imposed in similar cases. 

Following the preparation of a pre-sentencing report, the trial 

court held a sentencing hearing and heard argument from Bailey 

concerning the appropriateness of imposing the death sentences. 

Bailey contended that the death sentence was not appropriate 

because the killing of a child by his parent was an “emotional 

trigger” which clouded the jury’s judgment, but which did not 

indicate the requisite depravity of mind. Bailey asserted that 

the vileness of the crime was thus based solely on the question 
15

of an aggravated assault, and that the forensic evidence showed 

that the victims “never knew what hit them” because the first 

shots would have been fatal or rendered the victims unconscious. 

The trial court confirmed the death sentences and the other 

sentences imposed by the jury. These appeals followed. 

DISCUSSION 

A. Moot Issues

Bailey’s fourth assignment of error challenges the 

constitutionality of the Virginia death penalty statute on the 

ground that the Commonwealth may prove the aggravating factor of 

future dangerousness through evidence of unadjudicated criminal 

conduct. Because the Commonwealth did not present evidence 

during the penalty-determination phase concerning Bailey’s 

future dangerousness to society, this issue is moot and need not 

be addressed. See Swann v. Commonwealth, 247 Va. 222, 228 n.2, 

441 S.E.2d 195, 200 n.2, cert. denied, 513 U.S. 889 (1994); 

Fisher v. Commonwealth, 236 Va. 403, 414, 374 S.E.2d 46, 53 

(1988), cert. denied, 490 U.S. 1028 (1989). For the same 

reason, Bailey’s challenges to the constitutionality of the 

future dangerousness aggravating factor that are part of his 

first and third assignments of error are also moot. 
16

B. Issues Previously Decided

In his fourteenth assignment, Bailey asserts that the trial 

court erred in denying as overbroad that portion of his 

discovery motion that requested information from the 

Commonwealth beyond that requisite to meet the requirements of 

Rule 3A:11. Bailey contends that a capital murder defendant 

should be afforded more extensive discovery because of “the 

unique and irreversible nature of the death penalty.” At the 

hearing on his motion, Bailey conceded that his motion requested 

any and all evidence Rule 3A:11 required the Commonwealth to 

provide him and “anything else including the kitchen sink.” 

Bailey’s motion and argument are virtually identical to those 

discussed in Walker v. Commonwealth, 258 Va. 54, 63, 515 S.E.2d 

565, 570-71 (1999). As in that case, the record here reflects 

that Bailey received all of the discovery to which he was 

entitled. We find nothing in Bailey’s argument that would 

warrant an extension of his discovery rights. Id. at 63, 515 

S.E.2d at 571. 

Bailey further contends in his fifteenth assignment of 

error that the trial court erred in denying his motion for a 

bill of particulars. There is no merit to this contention. In 

Strickler v. Commonwealth, 241 Va. 482, 404 S.E.2d 227, cert.

denied, 502 U.S. 944 (1991), we held that when the indictment is 
17

sufficient to give the accused “notice of the nature and 

character of the offense charged so he can make his defense,” a 

bill of particulars is not required. Id. at 490, 404 S.E.2d at 

233; see also Wilder v. Commonwealth, 217 Va. 145, 147, 225 

S.E.2d 411, 413 (1976). Here, there is no challenge to the 

sufficiency of the indictment. As in Strickler, those parts of 

Bailey’s request for a bill of particulars seeking disclosure of 

the evidence upon which the Commonwealth intended to rely in the 

guilt and sentencing phases of the trial “are sweeping demands 

for pretrial disclosure of all the Commonwealth’s evidence.” 

Strickler, 241 Va. at 490, 404 S.E.2d at 233. As such, the 

request for a bill of particulars was nothing more than an 

effort to obtain the same material Bailey had sought to obtain 

through his overbroad discovery motion. We find nothing in this 

record to warrant reconsideration of the well established 

principles reiterated in Strickler concerning a defendant’s 

right to a bill of particulars. 

C. Matters Within the Trial Court’s Discretion

Bailey’s tenth, eleventh, and twelfth assignments of error 

concern rulings committed to the trial court’s discretion. In 

each instance we find no evidence to support a finding of an 

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

occurred. 
18

Bailey contends that the trial court erred in denying his 

motion to be provided the services of an “expert investigator.” 

We have consistently rejected the contention that defendants, 

even in capital murder cases, have an indiscriminate entitlement 

to the assistance of an investigator. See, e.g., George v. 

Commonwealth, 242 Va. 264, 271, 411 S.E.2d 12, 16 (1991), cert.

denied, 503 U.S. 973 (1992). Rather, as with any request for 

the Commonwealth to provide a defendant with expert assistance, 

the defendant must demonstrate that he has a particularized 

need, meaning one which is material to the preparation of his 

defense, for the services of an expert, and that the denial of 

such services would result in a fundamentally unfair trial. See

Husske v. Commonwealth, 252 Va. 203, 212, 476 S.E.2d 920, 925 

(1996). The determination whether a defendant has adequately 

demonstrated a particularized need for the assistance of an 

expert rests within the discretion of the trial court. Id. at 

212, 476 S.E.2d at 926. 

Bailey asserted in his motion that he required an 

investigator to “locate essential witnesses and data, [and] 

examine and evaluate testimony and documents . . . likely to be 

significant at a capital murder trial.” At the hearing on his 

motion, Bailey merely reiterated his “need [for] some additional 

assistance by way of the investigation” being conducted by his 
19

counsel. These assertions fall far short of demonstrating a 

particularized need for the services of an expert. “Mere hope 

or suspicion that favorable evidence is available is not enough 

to require that such help be provided.” Id. at 212, 476 S.E.2d 

at 925. Accordingly, we cannot say that the trial court abused 

its discretion in denying Bailey’s motion for the services of an 

expert investigator. 

Bailey contends that the trial court erred in admitting 

into evidence thirteen photographs of the crime scene without 

proper foundation. He contends that these photographs were not 

initially proffered by the photographer who produced them and 

that they did not accurately reflect the crime scene at the time 

the subscribing witness first observed it.2 The thirteen 

photographs at issue were introduced during the testimony of 

Officer Tucker and Skutans, the paramedic. Each testified that 

the photographs accurately depicted the murder scene except that 

the scene was more brightly lit in the photographs than it had 

been. 

 

2

Detective James A. Dillabough of the Hampton Police Crime 

Scene Unit subsequently testified and identified the photographs 

as those he had taken during the investigation of the murders 

later on the morning of September 10, 1998. Bailey, however, 

stated that he would not waive his prior objection. 
20

We consistently have held that the admission of photographs 

into evidence rests within the sound discretion of a trial 

court, and that the trial court’s decision will not be disturbed 

on appeal unless the record discloses a clear abuse of 

discretion. Walton v. Commonwealth, 256 Va. 85, 91-92, 501 

S.E.2d 134, 138, cert. denied, 525 U.S. 1046 (1998); Goins v. 

Commonwealth, 251 Va. 442, 459, 470 S.E.2d 114, 126, cert.

denied, 519 U.S. 887(1996). Photographs are generally admitted 

into evidence for two purposes: to illustrate a witness’ 

testimony, and as an “independent silent witness” of matters 

revealed by the photograph. See Ferguson v. Commonwealth, 212 

Va. 745, 746, 187 S.E.2d 189, 190, cert. denied, 409 U.S. 861 

(1972). “[A] photograph which is verified by the testimony of a 

witness as fairly representing what that witness has observed is 

admissible in evidence and . . . it need not be proved by the 

photographer who made it.” Id.

Here, the testimony of the two witnesses that the 

photographs fairly represented what they had observed was 

adequate to establish the authenticity of the representation of 

the photographs. Clagett, 252 Va. at 87, 472 S.E.2d at 268. 

The mere fact that the lighting was different at the time the 

photographs were taken is not sufficient to render their 

admission into evidence by the trial court an abuse of 
21

discretion. See id. at 86, 472 S.E.2d at 267 (permitting jury 

to view videotape of crime scene where bodies of victims had 

been moved by emergency personnel was not abuse of discretion). 

Bailey also asserts that the trial court erred in admitting 

four photographs of the crime scene and eight autopsy 

photographs of the victims, on the ground that they were 

cumulative, gruesome, and unduly inflammatory. Specifically 

with respect to the photographs of Nathan, Bailey asserts that 

because he stipulated to “the manner of the child’s death” as 

depicted by diagrams in the autopsy report, the crime scene and 

autopsy photographs “added nothing to the information the jurors 

already possessed” and “did not tend to show motive, intent, 

method, premeditation, malice, or the degree of atrociousness of 

the crime.” We disagree. 

Admission of graphic photographs rests within the 

discretion of the trial court so long as they are relevant and 

accurately portray the scene of the crime or the condition of 

the victim. See Clozza v. Commonwealth, 228 Va. 124, 135, 321 

S.E.2d 273, 280 (1984), cert. denied, 469 U.S. 1230 (1985). 

Contrary to Bailey’s assertion, his stipulation to “the manner 

of the child’s death” did not render the crime scene and autopsy 

photographs cumulative or irrelevant. The autopsy photographs 

were relevant to explain the clinical illustrations of Nathan’s 
22

wounds in the autopsy report. Moreover, it is self-evident that 

all these photographs tended to establish the method, 

maliciousness, and degree of atrociousness of the crime. 

Walton, 256 Va. at 92, 501 S.E.2d at 138; Goins, 251 Va. at 459, 

470 S.E.2d at 126. Accordingly, we find no abuse of the trial 

court’s discretion in the admission of any of these photographs. 

D. Constitutionality of the Virginia Capital Punishment Statutes

Bailey’s first, second, third, fifth, and sixth assignments 

of error repeat the challenges to the constitutionality of the 

Virginia death penalty statute and the statutory scheme under 

which capital murder trials are conducted and death sentences 

are reviewed on appeal that the trial court rejected in 

addressing Bailey’s pre-trial motion. We have thoroughly 

addressed and rejected in numerous prior capital murder cases 

the arguments raised in these assignments of error, and we find 

no reason to modify our previously expressed views on these 

issues. 

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

674-75, cert. denied, 513 U.S. 971 (1994), we rejected the 

assertion that capital punishment statutes do not give 

meaningful guidance to a jury because they do not require the 

jury to find that aggravating circumstances outweigh mitigating 

ones before fixing the death penalty. In Breard we also 
23

rejected the contention that the method of instructing jury on 

mitigation impermissibly interferes with jury’s consideration of 

evidence offered in mitigation. Id.

In Turner v. Commonwealth, 234 Va. 543, 552, 364 S.E.2d 

483, 488, cert. denied, 486 U.S. 1017 (1988), we rejected the 

assertion that the vileness aggravating factor is 

unconstitutionally vague. Similarly, we have repeatedly 

rejected the contentions that the death penalty constitutes 

cruel and unusual punishment in violation of the Eighth 

Amendment, see, e.g., Joseph v. Commonwealth, 249 Va. 78, 82, 

452 S.E.2d 862, 865, cert. denied, 516 U.S. 876 (1995), and that 

the method of review of a death sentence by trial court and by 

this Court on appeal are unconstitutional, see, e.g., Walker v. 

Commonwealth, 258 Va. 54, 61, 515 S.E.2d 565, 569 (1999), cert.

denied, ___ U.S. ___, 120 S.Ct. 955 (2000). 

In his seventh assignment of error, Bailey contends, inter

alia, that this Court has failed in its statutory duty under 

Code § 17.1-313(E) to maintain “records of all capital felony 

cases” for use in the proportionality review required by Code 

§ 17.1-313(C)(2), and that this constitutes a violation of 

“Bailey’s due process and other constitutional rights.” We 

disagree. 
24

Code § 17.1-313(A) requires that “[a] sentence of death, 

upon the judgment thereon becoming final in the circuit court, 

shall be reviewed on the record by the Supreme Court.” As part 

of that mandatory review, subsection (C)(2) of the statute 

directs this Court to determine “[w]hether the sentence of death 

is excessive or disproportionate to the penalty imposed in 

similar cases, considering both the crime and the defendant.” 

Code § 17.1-313(E) further provides that: 

The Supreme Court may accumulate the records of 

all capital felony cases tried within such period of 

time as the court may determine. The court shall 

consider such records as are available as a guide in 

determining whether the sentence imposed in the case 

under review is excessive. Such records as are 

accumulated shall be made available to the circuit 

courts. 

(Emphasis added.) 

This statute uses discretionary language permitting this 

Court to determine the period of time within which the records 

of all capital felony cases will be accumulated for purposes of 

a proportionality review of a death sentence. Thus, in the 

first capital murder case reviewed by this Court following the 

enactment of the former version of Code § 17.1-313, the Court 

exercised that discretion by entering an order 

directing the Clerk of this Court henceforth to 

segregate and accumulate the printed records and 

opinions in all class 1 felony cases, to maintain a 

current index of those cases, and to make the index, 

records, and opinions of this Court available for 
25

examination upon the request of any court of record in 

the Commonwealth or in the federal jurisdiction. 

Smith v. Commonwealth, 219 Va. 455, 482 n.8, 248 S.E.2d 135, 151 

n.8 (1978), cert. denied, 441 U.S. 967 (1979); see also Jones v. 

Commonwealth, 228 Va. 427, 450, 323 S.E.2d 554, 567 (1984), 

cert. denied, 472 U.S. 1012 (1985). 

This archive now maintained by the Clerk pursuant to our 

order contains the records of all appeals of convictions under 

Code § 18.2-31, whether the sentence imposed was death or life 

imprisonment, filed in this Court since Smith and, from 1986, 

those capital cases resulting in a sentence of life imprisonment 

first reviewed in the Court of Appeals of Virginia. In 

addition, these records have been summarized in digest form, and 

are cross-indexed according to the offense of conviction, the 

sentence imposed, and whether a jury or the trial court imposed 

that sentence.3

 

3

Although Bailey offers no supporting authority for the 

proposition that these records are incomplete, we recognize that 

a small number of defendants convicted of capital murder and 

sentenced to life imprisonment waive their right of appeal and, 

thus, records of those cases are not included in the archive 

maintained by this Court pursuant to Code § 17.1-313(E). 

However, we are of opinion that such cases almost invariably 

involve guilty pleas and the Commonwealth’s agreement not to 

seek the death penalty. Thus, their value for making a 

proportionality analysis is minimal because the record would 

contain little or no background upon which to make the 

proportionality comparison. 
26

Moreover, contrary to Bailey’s assertion that the 

maintenance of “complete” records is requisite to the 

preservation of his right to a proportionality review of his 

death sentence, nothing in the statute, nor in the case law 

relied upon by Bailey, prescribes the method by which an 

appellate court conducts a proportionality review of a death 

sentence. Rather, so long as the methods employed assure that 

the death sentence is not disproportionate to the penalty 

generally imposed for comparable crimes, due process will be 

satisfied and the defendant’s constitutional rights protected. 

Additional challenges to the constitutionality of the 

capital appellate review process raised within Bailey’s seventh 

assignment of error have been previously addressed, and we find 

no reason to modify our previously expressed views. See, e.g., 

Payne v. Commonwealth, 233 Va. 460, 473-74, 357 S.E.2d 500, 508-

09, cert. denied, 484 U.S. 933 (1987)(procedures for appellate 

review of death penalty cases, including expedited review, 

provide a meaningful appeal and are constitutional). 

On a related issue, in his twentieth assignment of error, 

Bailey contends that the trial court erred in refusing his 

motion that it obtain from this Court and review the records of 

prior capital murder cases maintained pursuant to Code 17.1-

313(E) before determining whether the death sentences were 
27

appropriate, or to set them aside for “good cause shown” 

pursuant to Code § 19.2-264.5.4 This contention is without 

merit. 

As noted above, Code § 17.1-313(E) requires that “[s]uch 

records as are accumulated [by this Court] shall be made 

available to the circuit courts.” We have previously supplied 

our records to a circuit court upon request. See Bunch v. 

Commonwealth, 225 Va. 423, 448, 304 S.E.2d 271, 285, cert.

denied, 464 U.S. 977 (1983). However, nothing in the statute 

requires the circuit court to make such a request, the matter 

being one committed to the trial court’s discretion. Here, the 

trial court indicated that it had reviewed a large number of 

cases to permit it to fairly determine whether the death 

sentences were appropriate. Moreover, nothing in the record 

constitutes good cause shown to set these sentences aside and 

for the trial court to have imposed life sentences. 

 

4

Bailey further contends that the trial court’s denial of 

his motion constitutes a violation of his constitutional right 

to a proportionality review. Bailey did not raise this argument 

below and, thus, we shall not consider it for the first time on 

appeal. Rule 5:25. Moreover, Bailey confuses the 

appropriateness review conducted by the trial court pursuant to 

Code § 19.2-264.5 with the proportionality review conducted by 

this Court pursuant to Code § 17.1-313(C)(2). The 

proportionality review conducted by this Court in all death 

sentence cases suffices to secure the rights of the defendant in 

this regard. 
28

Accordingly, we find no abuse of discretion in the trial court’s 

denial of Bailey’s motion. 

In his motion to have the Virginia death penalty statute 

and the statutory scheme under which capital murder trials are 

conducted and death sentences are reviewed on appeal declared 

unconstitutional, Bailey contended that the Commonwealth’s 

system of appointing counsel in capital cases results in a 

denial of the right to effective assistance of counsel. The 

trial court rejected this contention without comment. 

In addition, in his eighth assignment of error, Bailey 

asserts that “Virginia has no system for appointment of counsel 

. . . [and] expends no public funds on education, assistance, or 

training of capital defense counsel.” Bailey further asserts 

that appointed counsel in capital cases are “disproportionately 

from small firms with resources inadequate to defend a capital 

murder charge.” Bailey also contends that the Commonwealth 

fails to provide meaningful review of ineffective assistance of 

counsel claims raised in habeas corpus petitions. According to 

Bailey, “[t]hese factors, individually and collectively, violate 

Bailey’s Sixth Amendment right to counsel.” We disagree. 

Bailey’s assertion that Virginia has no system for the 

appointment of counsel in capital cases is demonstrably in 

error. Code §§ 19.2-163.7 and 19.2–163.8 provide, in capital 
29

cases, for the appointment of counsel who meet qualifications 

determined by the Public Defender Commission in conjunction with 

the Virginia State Bar. These statutes provide the criteria to 

be considered in determining the qualifications for attorneys so 

appointed, including the requirements that they have “current 

training in death penalty litigation . . . [and a] demonstrated 

proficiency and commitment to quality representation.” We are 

of opinion that this statutory scheme for identifying and 

appointing qualified attorneys to represent indigent defendants 

in capital murder cases adequately safeguards those defendants’ 

constitutionally guaranteed right to counsel. 

Bailey cites no authority for the proposition that a state 

is required, as part of its obligation to afford indigent 

defendants with appointed counsel in capital cases, to further 

provide for the education, assistance, or training of such 

counsel. In any case, there is no merit to Bailey’s contention 

that Virginia fails to allocate public funds for these purposes. 

In addition to establishing and funding the Public Defender 

Commission, the General Assembly, through the appropriation made 

for the Virginia State Bar, allocates funds for the Virginia 

Capital Representation Resource Center. See, e.g., 1998-2000 

Executive Budget, 1999 Amendments, page B-17 (1999). 
30

Moreover, in 1998, the General Assembly authorized a study 

of “the quality of capital representation of indigent defendants 

in Virginia . . . [and] the standards for qualification of 

counsel promulgated pursuant to [Code] § 19.2-163.8.” House 

Joint Resolution 190, Acts 1998, at p. 2649. Although 

recommending certain improvements in the manner in which counsel 

are appointed in capital cases, the authors of the study 

concluded that “[t]he overall state of the system for 

representation of indigent capital defendants is good.” Report 

of the Virginia State Crime Commission, Capital Representation 

of Indigent Defendants, House Document 60, at 1 (1999). 

According to a survey conducted as part of the study, the 

quality of representation by appointed counsel in capital murder 

trials, as appraised by the trial court judges, met or exceeded 

the desired level of expertise and performance ninety-eight 

percent of the time. Id. at 19. This empirical data refutes 

Bailey’s wholly unsupported assertion that appointed counsel in 

capital murder cases are generally unqualified to provide 

effective representation. 

We further reject Bailey’s contention, also unsupported by 

reference to any credible data, that appointed counsel in 

capital murder trials are “disproportionately from small firms 

with resources inadequate to defend a capital murder charge.” 
31

Pursuant to Code § 19.2-163, counsel appointed in capital murder 

cases may receive a fee in “an amount deemed reasonable by the 

court” and “payment of such reasonable expenses incurred.” 

Accordingly, the ability of an appointed attorney to represent a 

capital murder defendant is not limited to the independent 

resources available to that attorney from his or her law firm 

because the trial court will compensate the attorney for any 

reasonable expenditure of time and expenses. Moreover, we are 

unwilling to accept Bailey’s unsupported assertion that 

attorneys in “small firms” are not in a position to adequately 

defend a client charged with capital murder. 

Bailey’s contention that Virginia fails to provide 

meaningful review of ineffective assistance of counsel claims 

raised in habeas corpus petitions does not state an allegation 

of a facial or systemic violation of the constitutionally 

guaranteed right to counsel. Moreover, Bailey has not proffered 

any evidence in support of this contention. Accordingly, we 

reject this unsupported contention. 

For these reasons, we hold that Virginia’s statutory scheme 

for the conduct of capital murder trials and the review of death 

sentences does not violate the due process rights and other 

protections afforded by the Fifth, Sixth, Eighth and Fourteenth 

Amendments. 
32

E. Suppression of Bailey’s Statements to Police

In his thirteenth assignment of error, Bailey contends that 

the trial court should have suppressed all statements made by 

him to the police because his initial confession was made before 

he received Miranda warnings. He further contends that his 

detailed confession was the result of police coercion. We 

disagree with both of these contentions. 

Bailey premises his argument that his initial statements 

were inadmissible and, thus, taint his subsequent full 

confession, given after he received Miranda warnings, on the 

ground that he had not waived his rights against selfincrimination and to the benefit of counsel “during in-custody 

questioning.” The difficulty with this argument is that it 

fails to address the trial court’s finding that prior to 

Bailey’s making his initial confession he was not in custody. 

In Miranda, the Supreme Court held that, before an 

individual may be questioned by police, he must be warned of his 

right to remain silent and his right to an attorney only when 

that “individual is taken into custody or otherwise deprived of 

his freedom by the authorities in any significant way and is 

subjected to questioning.” Miranda v. Arizona, 384 U.S. 436, 

478 (1966). The Supreme Court subsequently explained in Oregon 
33

v. Mathiason, 429 U.S. 492 (1977), that Miranda warnings are 

implicated only during a custodial interrogation: 

Any interview of one suspected of a crime by a police 

officer will have coercive aspects to it, simply by 

virtue of the fact that the police officer is part of 

a law enforcement system which may ultimately cause 

the suspect to be charged with a crime. But police 

officers are not required to administer Miranda

warnings to everyone whom they question. Nor is the 

requirement of warnings to be imposed simply because 

the questioning takes place in the station house, or 

because the questioned person is one whom the police 

suspect. Miranda warnings are required only where 

there has been such a restriction on a person’s 

freedom as to render him “in custody.” It was that 

sort of coercive environment to which Miranda by its 

terms was made applicable, and to which it is limited. 

Id. at 495. 

We have also observed that Miranda warnings are not 

required in every instance when a suspect is interrogated at a 

police station. Coleman v. Commonwealth, 226 Va. 31, 47, 307 

S.E.2d 864, 872 (1983), cert. denied, 465 U.S. 1109 (1984). We 

have stated that “[i]t is the custodial nature rather than the 

location of the interrogation that triggers the necessity for 

giving Miranda warnings.” Id. at 47, 307 S.E.2d at 872; accord

Burket v. Commonwealth, 248 Va. 596, 605, 450 S.E.2d 124, 129 

(1994), cert. denied, 514 U.S. 1053 (1995). 

Bailey clearly was not in custody such as is contemplated 

by Miranda at the time he made his initial confession. The 

record shows that he voluntarily accompanied police to the 
34

police station in an effort to continue the ruse that his wife 

had received threatening telephone calls and notes. His 

interaction with police throughout the morning and into the 

early afternoon was entirely voluntary and Bailey was made aware 

on more than one occasion that he was free to leave, if he so 

desired. Accordingly, we find no merit to Bailey’s contention 

that any statements he made prior to being given the Miranda

warnings were obtained in violation of his Fifth Amendment 

rights. Thus, Bailey’s initial confession was admissible and 

did not taint his subsequent confession. 

Bailey nonetheless contends that the detailed confession, 

obtained after he had been taken into custody and was given the 

Miranda warnings, was not voluntary. He contends that “[t]he 

interrogators effectively tricked, coerced and cajoled [him] 

into making incriminating statements” and, thus, that his “will 

was overborne by the interrogators.” We disagree. 

When determining whether a defendant’s will has been 

overborne, the totality of the circumstances, including the 

defendant’s experience and background as well as the conduct of 

the police, must be examined. Gray v. Commonwealth, 233 Va. 

313, 324, 356 S.E.2d 157, 163, cert. denied, 484 U.S. 873 

(1987). While the question whether a statement is voluntary is 

ultimately a legal rather than a factual one, subsidiary factual 
35

determinations made by the trial court are entitled to a 

presumption of correctness. Thus, the trial court’s finding 

that Bailey’s will was not overborne is a factual finding, 

entitled on appeal to the same weight as a finding by a jury, 

and will not be disturbed unless plainly wrong. Witt v. 

Commonwealth, 215 Va. 670, 674-75, 212 S.E.2d 293, 297 (1975). 

The evidence summarized above is fully sufficient to support the 

trial court’s finding that Bailey knowingly and voluntarily 

waived his Fifth Amendment rights when he gave his detailed 

confession to the police. Thus, the trial court’s denial of 

Bailey’s suppression motion was not error. 

F. Jury Instructions and Sentencing Form

In his sixteenth assignment of error, Bailey contends that 

the trial court erred during the guilt-determination phase in 

giving separate instructions proffered by the Commonwealth 

defining capital murder as the killing of more than one person 

as a part of the same act or transaction, Code § 18.2-31(7), and 

capital murder as the killing of a person under the age of 

fourteen by a person age twenty-one or older, Code § 18.2-

31(12). Bailey contends that the instructions were confusing in 

that they implied to the jury that “it might convict Bailey of 

capital murder twice, even though Bailey had only been indicted 

on a single count of capital murder, which set forth 
36

disjunctively the two grounds for the capital murder charge.” 

The Commonwealth contends that the indictment was worded to 

permit convictions for two offenses of capital murder. We agree 

with the Commonwealth. 

In Payne v. Commonwealth, 257 Va. 216, 509 S.E.2d 293 

(1999), the defendant was charged in separate indictments with 

two offenses of capital murder of one victim.5 We held that “it 

is clear, as well as logical, that the General Assembly intended 

for each statutory offense [in Code § 18.2-31] to be punished 

separately ‘as a Class 1 felony.’” Id. at 228, 509 S.E.2d at 

301. In this case, two offenses of capital murder were charged 

in a single indictment. This distinction from Payne does not, 

however, preclude the conclusion that the indictment charged two 

capital murder offenses upon which Bailey could be convicted and 

sentenced. 

A single indictment may charge “[t]wo or more offenses 

. . . if the offenses are based on the same act or transaction.” 

Rule 3A:6. Contrary to Bailey’s assertion, the indictment for 

the capital murder of Nathan does not charge two offenses of 

capital murder exclusively in the disjunctive. Rather, the 

 

5

In Payne, the Court consolidated two separate capital 

murder appeals. In both instances, however, there were multiple 

indictments charging the defendant with two counts of capital 

murder of one victim. 
37

indictment clearly charges that the killing occurred as part of 

the same act or transaction as the killing of Katherine “and/or” 

as the killing of a person under the age of fourteen by a person 

age twenty-one or older. Thus, here, as in Payne, the 

Commonwealth was entitled to seek a separate conviction and 

death sentence on each offense of capital murder charged in the 

indictment. 

In his seventeenth assignment of error, Bailey contends 

that the trial court erred in presenting the jury with verdict 

forms in the penalty-determination phase that “were inherently 

confusing and led to a substantial risk of an unreasoned and 

hence arbitrary and capricious jury verdict.” Bailey contends 

that this is so because the verdict forms set out three 

alternative theories under which the jury might find that the 

“vileness” predicate would apply. 

The Commonwealth contends that because Bailey proffered no 

alternative verdict forms, he is deemed to have waived his 

objection to the forms used by the trial court. Cf. Atkins v. 

Commonwealth, 257 Va. 160, 178 n.8, 510 S.E.2d 445, 456 n.8 

(1999). However, unlike the circumstance in Atkins, where we 

held that a proffer of alternative verdict forms was sufficient 

to preserve an objection even though there was no express 

objection to the improper verdict forms proffered by the 
38

Commonwealth, here there is an express objection on the record. 

When a principle of law is materially vital to the defendant in 

a criminal case, it is reversible error for the trial court to 

fail to correct a defective instruction or verdict form when the 

error is patent or the subject of a proper objection. Id. at 

178, 510 S.E.2d at 456; accord Whaley v. Commonwealth, 214 Va. 

353, 355-56, 200 S.E.2d 556, 558 (1973); Bryant v. Commonwealth, 

216 Va. 390, 392-93, 219 S.E.2d 669, 671-72 (1975). Thus, 

although the better practice would have been for Bailey to 

proffer alternative verdict forms, he was not required to do so 

in order to preserve his objection. 

We agree with the Commonwealth, however, that the verdict 

forms in this case were not confusing and did not misstate the 

law. The verdict forms merely recited the alternative findings 

the jury might make in reaching its sentencing decision. Thus, 

unlike the situation in Atkins, the trial court’s instructions 

on sentencing and the verdict forms were in accord with and 

correctly reflected the law. 

G. Sufficiency of the Evidence

In his ninth assignment of error, Bailey contends that the 

trial court erred in failing to strike the Commonwealth’s 

evidence presented during the guilt-determination phase with 

respect to the capital murder charges arising from the killing 
39

of Nathan. He asserts that the Commonwealth’s evidence was 

insufficient to show that he acted with premeditation in that 

killing. In the appeal of his related convictions, Bailey 

further contends that the evidence was insufficient to support 

his conviction for the first-degree murder of Katherine, 

asserting that the evidence showed that he was “emotionally 

distraught” and “acted impulsively and without malice.”6 We 

disagree. 

The question of premeditation is a question to be 

determined by the fact-finder. Peterson v. Commonwealth, 225 

Va. 289, 295, 302 S.E.2d 520, 524, cert. denied, 464 U.S. 865 

(1983). “To establish premeditation, the intent to kill need 

only exist for a moment.” Id. 

The evidence showed that Bailey acquired the murder weapon 

several weeks in advance of the killings and made elaborate 

efforts over several months to deflect future suspicion from 

himself. From this evidence alone, there can be no doubt that 

the murder of Katherine was deliberate and premeditated. 

Even accepting Bailey’s contention that initially he had 

not considered the impact of Katherine’s murder on his son and 

 

6

This is the only assignment of error in the noncapital 

appeal that is not duplicated by an assignment of error raised 

in the capital appeal. See note 1, supra. 
40

had not intended to kill him also, the record, including 

Bailey’s own statement, shows that his decision to kill his son 

was not a sudden impulsive act, as he contends. Rather, the 

record shows that he took deliberate action after contemplation, 

however brief. The evidence in this case is closely on point 

with that in Stewart v. Commonwealth, 245 Va. 222, 427 S.E.2d 

394, cert. denied, 510 U.S. 848 (1993), where the defendant was 

convicted of killing his estranged wife and their infant son. 

In Stewart, we said that “evidence that a weapon was placed 

against a victim’s head when the fatal shot was fired . . . is 

sufficient alone to support a finding that ‘the shot was fired 

deliberately and with premeditation.’” Id. at 240, 427 S.E.2d 

406 (citation omitted). The record in this case shows that 

Bailey went to Nathan’s bedroom and shot the child twice in the 

head at close range. This evidence was sufficient for the jury 

to determine that the killing of Nathan was a deliberate and 

premeditated act. 

In his eighteenth assignment of error, Bailey contends that 

the trial court erred in failing to set aside the death 

sentences imposed by the jury on the ground that there was 

insufficient evidence of vileness in the killing of Nathan. We 

disagree. 
41

Bailey premises his argument on this issue on his 

contention that the killing of Nathan was an impulsive act of 

misguided compassion. We have already rejected this contention, 

finding that there was sufficient evidence of premeditation even 

under Bailey’s self-serving characterization of the events. 

Similarly, we find sufficient evidence in the record to support 

the Commonwealth’s contention that the killing of Nathan was 

committed in the course of an aggravated battery and with 

depravity of mind. Cf. Walker, 258 Va. at 72, 515 S.E.2d at 575 

(multiple gunshot wounds establish aggravated battery); Stewart, 

245 Va. at 246, 427 S.E.2d at 409 (manner of killing and 

attempts to disguise crime reflect depravity of mind). 

H. Sentence Review

In his nineteenth assignment of error, Bailey contends that 

the trial court erred in failing to set aside the two death 

sentences on the ground that they were “excessive and 

disproportionate” and “imposed under the influence of passion, 

prejudice, and other arbitrary factors.” These contentions are 

reflective of the requirements of Code § 17.1-313(C)(1) that we 

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

influence of passion, prejudice or any other arbitrary factor” 

and Code § 17.1-313(C)(2) that we determine “[w]hether the 

sentence of death is excessive or disproportionate to the 
42

penalty imposed in similar cases, considering both the crime and 

the defendant.” Accordingly, we will address Bailey’s 

assignment of error and conduct the review required by statute 

jointly. 

Bailey contends that the death sentences were excessive and 

disproportionate because the evidence showed that the capital 

murder of Nathan did not involve torture or a predicate felony, 

and that death was instantaneous. He further contends that “it 

was an impulsive killing with a gun, indistinguishable from 

literally thousands of gun-related killings across the country 

where the punishment is a term of imprisonment rather than 

death.” We disagree. 

Without giving any credence to Bailey’s unsupported 

assertion that there are “literally thousands” of similar 

murders committed in this country, we may nonetheless 

distinguish this crime on several grounds from the type of 

impulsive killings to which Bailey alludes. The forensic 

evidence that Nathan’s wounds resulted from an “execution-style” 

shooting rebuts Bailey’s claim that the killing was impulsive. 

Moreover, the evidence amply supports the conclusion that Bailey 

planned this killing along with the killing of Katherine and 

that he took elaborate steps to deflect suspicion from himself. 
43

We have examined the records of all capital murder cases 

reviewed by this Court, including those cases in which a life 

sentence was imposed. We have given particular attention to 

those cases in which, as here, the death penalty was based on 

the “vileness” predicate alone. Based on this review, we 

conclude that Bailey’s death sentences are not excessive or 

disproportionate to penalties generally imposed by other 

sentencing bodies in the Commonwealth for comparable crimes. 

See, e.g., Stewart, 245 Va. at 247, 427 S.E.2d at 410; Davidson 

v. Commonwealth, 244 Va. 129, 136, 419 S.E.2d 656, 660, cert.

denied, 506 U.S. 959 (1992); Buchanan, 238 Va. at 418, 384 

S.E.2d at 774. 

Bailey makes no particularized argument that the death 

sentences were imposed under the influence of passion, 

prejudice, or other arbitrary factors. However, within his 

argument on disproportionality, Bailey contends that “the jury’s 

passions and prejudice had been inflamed by the mere fact that 

the killing involved a two-year-old boy.” Assuming this 

statement is intended to address the review required by Code 

§ 17.1-313(C)(1), it is merely conclusory and we find nothing in 

the record to support it. 

Undeniably, the killing of one’s own child is among the 

most abhorrent crimes for a jury to contemplate when considering 
44

an appropriate sentence, especially when, as here, that crime 

occurs in conjunction with the equally abhorrent crime of the 

killing of one’s wife. Nonetheless, the mere fact that a crime 

is abhorrent does not raise a presumption that the jury will be 

unable to set aside its natural emotions and fairly consider all 

the evidence. Our review of this record does not disclose that 

the jury failed to give fair consideration to all the evidence 

both in favor and in mitigation of the death sentences, and we 

find nothing in this record which suggests that the jury, or the 

trial court in reviewing the verdicts, imposed the death 

sentences under the influence of passion, prejudice, or other 

arbitrary factors. 

CONCLUSION 

Having reviewed the capital murder convictions, the death 

sentences imposed thereon, and the related convictions and 

sentences for first-degree murder and the firearm charges, we 

find no reversible error in the record, and perceive no reason 

to commute the death sentences. For these reasons, we will 

affirm the judgment of the trial court. 

Record No. 992840 — Affirmed. 

Record No. 000151 — Affirmed.