Present: All the Justices 

THOMAS LEE ROYAL, JR. 

v. Record No. 942223 OPINION BY JUSTICE ELIZABETH B. LACY 

 June 9, 1995 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Nelson T. Overton, Judge 

 Thomas Lee Royal, Jr., was indicted for the capital murder 

of City of Hampton police officer Kenneth Earl Wallace and use 

of a firearm in the commission of the murder in violation of 

Code §§ 18.2-31 and -53.1, respectively. Royal entered pleas 

of guilty on both charges and received sentences of death for 

the capital murder charge and three years' imprisonment for the 

firearm charge. The trial court denied Royal's motion for 

reconsideration of the death sentence. 

 We consider Royal's appeal of the imposition of the death 

penalty with the automatic review of the death sentence to 

which he is entitled under Code § 17-110.1. 

I. The Guilt Phase 

 At a hearing held by the trial court on September 19, 

1994, the Commonwealth presented the following facts as 

stipulated by the parties: 

 On Monday, February 21st, 1994, Thomas Royal, 

Yancy M. Mitchener, Eldred Acklin, and Willie Sanders 

met in the vicinity of Chesapeake Court Apartments 

near Wythe Shopping Center. Thomas Royal handed each 

of the other three a gun with the intention to kill 

Hampton police officer Curtis Cooper. These four 

persons started to cross Wythe Shopping Center and 

they did not see Office[r] Cooper but did see Officer 

Kenneth E. Wallace of the Hampton Police Department. 

 Thomas Royal pursued Officer Wallace, followed 

by Yancy M. Mitchener and Eldred Acklin. Willie 

Cardell Sanders hung back. Thomas Royal encountered 
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Officer Wallace and fired two shots from a .380 

caliber handgun at Officer Wallace while Officer 

Wallace was seated in his police cruiser on 

Pocahontas Place in Hampton, Virginia. Thomas Royal 

fled. Officer Wallace died as a result of a wound 

inflicted by Thomas Royal. 

 Yancy M. Mitchener and Eldred Acklin both fired 

at the marked police car hitting the car but not 

Officer Wallace. Both Mitchener and Acklin then fled 

following Thomas Royal. Royal, Mitchener, and Acklin 

rejoined Sanders back at the Chesapeake Court 

Apartments. All four eventually fled Hampton that 

night and spent it in a motel in Norfolk. 

Royal also introduced a letter he had written to Officer 

Wallace's father expressing his sorrow for the murder and 

asking for the family's forgiveness. The trial court accepted 

Royal's guilty pleas after finding that the pleas were made 

freely and voluntarily following full consultation with 

counsel. 

II. The Penalty Phase 

 On October 19, 1994, the trial court conducted a hearing 

encompassing the proceedings required by Code §§ 19.2-264.4 and 

-264.5. In addition to the testimony of the probation officer 

who prepared the pre-sentence report, the Commonwealth's 

evidence consisted of the testimony of Dr. Miller M. Ryans, a 

forensic psychiatrist who evaluated Royal; Detective Corporal 

Edgar A. Browning of the Hampton Police Department who, while 

investigating the murder of Officer Wallace, took a statement 

from Royal regarding the murder; Officer Curtis C. Cooper of 

the Hampton Police Department, Royal's intended victim; and Dr. 

Greg Wolber, a psychologist and rebuttal witness. Royal 
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introduced the testimony of his wife, Pamela, and Dr. Andrew J. 

Billups, III, a psychologist. 

 The Commonwealth's evidence showed that Royal's prior 

criminal record began in 1983 as a juvenile and included 

involvement with numerous offenses against property. As an 

adult, he was convicted of destroying property, petit larceny, 

assault and battery, interfering with a police officer, 

trespass, and possession of cocaine. In August 1994, shortly 

before his conviction for the murder of Officer Wallace, Royal 

was convicted of second degree murder and use of a firearm in 

the commission of the 1991 murder of James Smith. 

 Dr. Ryans testified that Royal displayed six of the seven 

diagnostic criteria connected with an antisocial personality 

disorder. For example, Royal did not "conform to social norms 

with respect to lawful behaviors as indicated by repeatedly 

performing acts that are grounds for arrest," exhibited 

"reckless disregard for safety of self or others," and 

displayed "lack of remorse as indicated by being indifferent to 

or rationalizing having hurt, mistreated, or stolen from 

another." Dr. Ryans testified that there is no treatment for 

this condition and that, in Royal's case, this pattern of 

behavior was "gradually escalating." As to his future 

dangerousness, Dr. Ryans stated that "I cannot say with 

reasonable medical certainty that under certain circumstances 

there would not be a repetition of violent behavior by this 
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individual that would put others at risk." 

 Royal's expert, Dr. Billups, testified that school 

personnel had concluded that Royal was mentally retarded based 

on intelligence evaluations administered in 1982 and 1986. Dr. 

Billups concluded, based on his own testing, that Royal 

functioned "in the borderline range of intelligence." Dr. 

Billups agreed that Royal had an antisocial personality 

disorder and surmised that the conditions of his childhood, 

including encouragement from family members to engage in 

criminal acts, would have contributed to such a disorder. This 

disorder, Dr. Billups testified, "has a chronic course that may 

become less evident or remit as the individual grows older, 

particularly by the fourth decade of life." Finally, Dr. 

Billups testified that Royal had expressed genuine remorse and 

had the potential to be rehabilitated. 

 At the close of the evidence, the trial court granted 

Royal's motion to strike the Commonwealth's evidence relating 

to the statutory predicate of vileness but not as to the future 

dangerousness predicate. The trial court, after "taking into 

consideration all the evidence in the case, the report of the 

Probation Officer, the matters brought out on cross examination 

of the Probation Officer, and such additional facts as were 

presented by the accused," held that "there is a probability 

that the defendant would commit criminal acts of violence that 

would constitute a continuing threat to society." The trial 
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court fixed Royal's sentence at death. After offering Royal 

the opportunity to present any evidence or reason why the death 

penalty should not be imposed, the trial court entered judgment 

imposing the death penalty. 

 Royal assigns error to a number of the trial court's 

actions during the sentencing phase of the proceedings. These 

involve the type of evidence which the trial court could 

consider in determining the statutory predicate of future 

dangerousness, the sufficiency of the evidence to establish 

future dangerousness, the failure of the trial court to impose 

life imprisonment as an alternative to the death penalty, and 

the trial court's denial of Royal's motion for reconsideration 

of the imposition of the death penalty. We consider Royal's 

assignments of error in order. 

a. Admissibility of Evidence 

 At the beginning of the sentencing hearing, the 

Commonwealth stated that it was not proceeding on the statutory 

predicate of vileness, only on future dangerousness. Royal 

asserts that, when future dangerousness is the sole statutory 

predicate relied on by the Commonwealth, Code § 19.2-264.2 

limits the relevant evidence solely to consideration of the 

defendant's record of past criminal convictions. Therefore, 

Royal contends, the trial court erred in considering 

circumstances surrounding the murder of Officer Wallace in 

making a determination as to Royal's future dangerousness. In 
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addition, Royal asserts that by allowing circumstances of the 

crime to be considered in determining future dangerousness, the 

offense becomes the sole basis for determining the sentence and 

thus, in this case, the death penalty is the "ipso facto result 

of the murder of a police officer." This result, Royal argues, 

violates the principle of individualized sentencing required in 

death penalty cases. Woodson v. North Carolina, 428 U.S. 280, 

303-04 (1976). We disagree. 

 The statutory provisions governing the imposition of the 

death penalty do not limit consideration of whether a defendant 

will be a future danger to the defendant's prior criminal 

record. Both subsections B and C of Code § 19.2-264.4 

specifically provide that evidence of the circumstances of the 

offense may be considered.1 Neither restricts this evidence to 

proceedings based on the vileness predicate. We have 

previously rejected the restrictive construction of the 

 

 1Code § 19.2-264.4 provides, in pertinent part: 

 B. Evidence which may be admissible, subject to 

the rules of evidence governing admissibility, may 

include the circumstances surrounding the offense, the 

history and background of the defendant, and any other 

facts in mitigation of the offense. 

 . . . . 

 C. The penalty of death shall not be imposed 

unless the Commonwealth shall prove beyond a 

reasonable doubt that there is a probability based 

upon evidence of the prior history of the defendant or 

of the circumstances surrounding the commission of the 

offense of which he is accused that he would commit 

criminal acts of violence that would constitute a 

continuing serious threat to society. 
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relevant statutes advanced by Royal and find no reason to 

depart from that position here. Frye v. Commonwealth, 231 Va. 

370, 392, 345 S.E.2d 267, 283 (1986). 

 Furthermore, the statutory scheme comports with the 

constitutional requirement of individualized sentencing. Where 

the sentencing body is required to find a statutorily 

prescribed aggravating factor to qualify a defendant for 

consideration of the death penalty, "[t]he aggravating 

circumstance may be contained in the definition of the crime or 

in a separate sentencing factor (or in both)." Tuilaepa v. 

California, ___ U.S. ___, 114 S.Ct. 2630, 2635 (1994). 

Therefore, the circumstances of the crime appropriately may be 

considered when determining whether the statutory predicate of 

future dangerousness exists. The individualized sentencing 

required by the Constitution is further satisfied when, having 

established the statutory predicate, the sentencing body then 

proceeds to consider whether the death penalty should be 

imposed in each specific case. See Zant v. Stephens, 462 U.S. 

862, 879 (1983). 

 Royal also contends that the trial court erred in not 

limiting the evidence relating to the murder of Officer Wallace 

to that stipulated by the parties in the guilt phase of the 

trial. Specifically, Royal objects to the admission of 

Detective Browning's testimony and a videotape in which Royal 

told Browning that he planned to kill Officer Cooper to avoid 
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threatened harm to his family, a story Royal later admitted was 

false. 

 A function of stipulations is to identify factual matters 

which are not in dispute. The stipulations recited factual 

events which occurred when Wallace was murdered. They did not 

include an agreement precluding either Royal or the 

Commonwealth from offering other particulars of the crime for 

the factfinder's consideration. Therefore, neither the 

Commonwealth nor the trial court was under any obligation to 

limit evidence of the crime to the stipulated facts. 

 Accordingly, the trial court did not err in considering 

relevant evidence in addition to Royal's prior criminal record 

and the factual stipulations in determining whether Royal would 

be a future danger to society. 

b. Sufficiency of the Evidence 

 Royal next argues that the trial court erred in 

determining that he would be a future danger to society because 

the Commonwealth failed to establish a prima facie case of 

future dangerousness and, therefore, his motions to strike the 

Commonwealth's evidence should have been granted. 

 In determining whether the trial court erred in denying 

Royal's motion to strike the Commonwealth's evidence of future 

dangerousness, we consider the evidence in the light most 

favorable to the Commonwealth. It is undisputed that Royal 

planned the murder of Officer Cooper and furnished each of the 
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three co-conspirators with the weapons for the crime. 

Moreover, when Royal realized the officer in the car was not 

his original intended victim, Officer Cooper, he did not 

abandon his plan. He proceeded to murder Officer Wallace, not 

because of any acrimony toward Officer Wallace, but apparently 

because Officer Wallace was there and Officer Cooper was not. 

Dr. Billups, Royal's expert witness described Royal's mental 

capacity as borderline, which he explained as "not high enough 

to be considered normal, but yet not low enough to be 

considered retarded." Nevertheless, the evidence shows that 

Royal had the capacity to, and did, plan a serious criminal 

offense, recruit others to participate, and execute the plan. 

More importantly, killing a person under these circumstances 

shows clear disregard for human life. This evidence, combined 

with the "escalating nature" of Royal's antisocial personality 

disorder, is sufficient to support a finding that Royal would 

be a future danger to society. 

 Royal asserts, however, that comments made by the trial 

court while ruling on Royal's motion to strike the 

Commonwealth's evidence show that the trial court erroneously 

shifted the burden to him to disprove that he was a future 

danger. Those comments, however, must be considered in 

context. 

 Royal based his motion to strike, in part, on Dr. Ryans' 

statement that he could not state with medical certainty that 
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under certain circumstances Royal would not repeat violent 

behavior that would put others at risk. Royal characterized 

this testimony as "equivocal." In response, the Commonwealth 

argued that the issue of future dangerousness was not for Dr. 

Ryans or any other qualified medical person to decide, but for 

the trier of fact to resolve based on the medical evidence as 

well as all other relevant evidence. In denying the motion to 

strike, the trial court commented that, 

 [i]n fairness or in passing, if Dr. Ryans or anyone 

else had sat there and said as a matter of psychiatry 

or psychology we were able to say to a reasonable 

degree of medical certainty that Mr. Royal wouldn't 

do this again, I would have listened to them. 

Taken in context, the court's comment does not establish a 

requirement of affirmative expert testimony that Royal was or 

would not be a future danger to society as a prerequisite to 

such a finding by the court. Rather, this comment was directed 

at the evidentiary weight the trial court would give to Dr. 

Ryans' testimony. Nothing in the trial court's statement 

placed the burden of proof on Royal to affirmatively show that 

he would not be a future danger to society. 

 Finally, Royal argues that the finding of future 

dangerousness was flawed because the Commonwealth was bound by 

the expert testimony of Dr. Ryans, which did not establish 

future dangerousness, and because Royal's prior conviction for 

second degree murder was on appeal and therefore should not 

have been considered as evidence of future dangerousness. We 
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disagree. Dr. Ryans' testimony was not an affirmative opinion 

that Royal either would or would not be a future danger to 

society. This statement did not preclude the Commonwealth from 

proving future dangerousness by other evidence. Furthermore, 

the trial court was entitled to consider Royal's prior murder 

conviction even though that conviction was on appeal at the 

time of sentencing. Peterson v. Commonwealth, 225 Va. 289, 

297-98, 302 S.E.2d 520, 525-26, cert. denied, 464 U.S. 865 

(1983). Accordingly, the trial court did not err in denying 

Royal's motion to strike. 

c. Imposition of the Death Penalty 

 Royal argues that the trial court erred in not considering 

life imprisonment as a viable sentencing alternative. Dr. 

Billups testified that Royal had potential for rehabilitation 

and that his antisocial personality disorder might subside or 

go into remission by his fourth decade of life. On this basis, 

Royal asserts that lengthy incarceration is appropriate. The 

record shows, however, that the trial court did consider Dr. 

Billups' testimony, but concluded that, based on the evidence, 

rehabilitation would not occur and that Royal's criminal record 

was one of increasing violence. In sum, the trial court 

appropriately considered all the evidence and decided against 

the position advanced by Royal. 

d. Recusal 

 Royal assigns error to the trial court's failure to grant 
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his motion for reconsideration in which he asserted that the 

trial judge should vacate the sentence of death, recuse 

himself, and ask that a new judge be appointed to impose 

sentence. This action was necessary, Royal argues, because of 

the substantial publicity surrounding the case and, 

specifically, the public pressure directed toward the judge to 

impose the death penalty. 

 We find no merit in this assignment of error. Public 

notoriety of a trial does not prove that a sentence is 

improperly imposed. Beaver v. Commonwealth, 232 Va. 521, 536, 

352 S.E.2d 342, 350, cert. denied, 483 U.S. 1033 (1987). The 

record is devoid of any indication that the trial court's 

sentencing decision was affected by public pressure or 

publicity. The trial judge did not abuse his discretion in 

refusing to recuse himself on this basis and did not err in 

denying Royal's motion for reconsideration. 

III. Statutory Review 

 Pursuant to Code § 17-110.1(C), we must review Royal's 

death sentence to determine whether it was imposed under the 

influence of passion, prejudice, or any other arbitrary factor 

and whether it is excessive or disproportionate to the penalty 

imposed in similar cases, considering both the crime and the 

defendant. 

 Royal argues that the death penalty was imposed under the 

influence of passion and was arbitrary and disproportionate 
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because the trial court stated that the "mitigating factors are 

not sufficient, in the view of the Court, to make any 

substantial difference in this situation." This statement, 

Royal asserts, shows that the trial court "must have 

overlooked" the mitigating factors, including Royal's guilty 

pleas, his remorse for the crime, as shown in the letter to 

Officer Wallace's father, his fatherless home life surrounded 

by relatives involved in criminal activities, his attempts at 

work and marriage, and his mental retardation. Thus, Royal 

concludes, the sentence imposed was arbitrary. We disagree. 

 The trial court reviewed the aggravating and mitigating 

evidence, finding that it showed "a life or a record of 

increasing violence." The trial court noted that the 

mitigating circumstances might engender "a distinct degree of 

sympathy for Mr. Royal for some of the things which [have] 

brought him to the place where he is." In the trial court's 

view, however, those circumstances did not change the pattern 

of escalating violence which had risen to the level of capital 

murder of a police officer. There is no indication that the 

trial court's sentencing decision was influenced by passion, 

prejudice, or any other arbitrary factor. 

 Finally, the death penalty was neither excessive nor 

disproportionate in this case. We have reviewed cases 

involving the capital murder of a police officer in which the 

penalty imposed was life imprisonment or death based solely on 
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a finding of future dangerousness. Based on that review, we 

conclude that sentencing bodies in Virginia generally have 

imposed the death penalty in circumstances substantially 

similar to those presented in this case. See, e.g., Delong v. 

Commonwealth, 234 Va. 357, 362 S.E.2d 669 (1987), cert. denied, 

485 U.S. 929 (1988); Beaver, 232 Va. at 524, 352 S.E.2d at 344; 

Evans v. Commonwealth, 228 Va. 468, 323 S.E.2d 144 (1984), 

cert. denied, 471 U.S. 1025 (1985). Accordingly, we hold that 

the death penalty imposed here is neither excessive nor 

disproportionate. 

 In conclusion, we find no reversible error among the 

issues presented by Royal's appeal. Having conducted the 

review mandated by Code § 17-110.1, we decline to commute the 

sentence of death. Accordingly, we will affirm the judgment of 

the trial court. 

Affirmed.