Present: All the Justices 

BRIAN LEE CHERRIX 

 OPINION BY JUSTICE ELIZABETH B. LACY 

v. Record Nos. 981798 & 982063 February 26, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ACCOMACK COUNTY 

Glen A. Tyler, Judge 

 In this appeal, we review the capital murder conviction 

and death penalty imposed upon Brian Lee Cherrix, along with 

his convictions for forcible sodomy, two counts of using a 

firearm in the commission of a felony, and possessing a 

firearm after being convicted of a felony. 

I. Facts 

 On the night of January 27, 1994, 23 year-old Tessa Van 

Hart was working as a pizza delivery person at a pizza 

delivery restaurant on Chincoteague Island. A man telephoned 

the restaurant and ordered a pizza to be delivered to an 

address in the "Small Piney Island" area of Chincoteague. 

Around 7:45 p.m., Van Hart left the restaurant to deliver the 

pizza. 

 When Van Hart failed to return from the delivery, the 

Chincoteague police were notified, and they began a search for 

Van Hart. Shortly after midnight on January 28, the police 

found Van Hart's vehicle behind a vacant home approximately 
one mile from the Small Piney Island area. Van Hart's body 

was found in the back seat. 

 An autopsy revealed that Van Hart died from two gunshot 

wounds to the head. The autopsy also showed that she had been 

sodomized and had suffered bruises and abrasions on her 

forehead, cheek, nose, and mouth sometime around the time of 

death. In the yard of the house to which Van Hart was to have 

delivered the pizza on January 27, the police found two 

bloodstains which DNA typing showed to be consistent with Van 

Hart's blood. 

The murder of Tessa Van Hart remained unsolved for over 

two years. On June 3, 1996, however, Brian Lee Cherrix, who 

was in the Accomack County Jail pending sentencing on 

unrelated charges, contacted the Accomack County Sheriff, 

Robert Crockett. Cherrix said that he had information 

concerning the Van Hart murder that he would share with police 

in return for leniency on his pending sentencing. Cherrix 

told Crockett that his cousin, Robert Birch, III, had killed 

Van Hart. Cherrix claimed that Birch had told him in February 

1994 that he, Birch, had lured Van Hart to an unoccupied 

residence by ordering a pizza, raped and shot her, and then 

discarded the rifle used in the crime in a nearby creek. 

Birch died in 1995. 

2
The state police began an underwater search of the creek 

for the murder weapon. When Cherrix was informed that the 

dive team had not recovered the rifle, he agreed to go to 

Chincoteague to show the officers the location of the rifle 

according to what Birch supposedly had told him. At the 

search site, Cherrix directed Trooper Mark Fowler to the place 

he claimed that Birch had told him he had thrown the rifle. 

Fowler testified at trial that, while Cherrix maintained that 

he was only relating facts imparted to him by Birch, Cherrix 

would occasionally lapse into the use of the first person in 

describing how and where the rifle came to be located in the 

creek. The divers recovered a .22 caliber Marlin rifle at the 

location indicated by Cherrix. 

Later that same day, Cherrix was taken to the City of 

Chesapeake, where he was interviewed by state police 

investigator Lloyd Dobbs. After being advised of his Miranda 

rights and signing a written waiver of those rights, Cherrix 

gave several differing versions of the story Birch supposedly 

had told him, all the while using hand and arm gestures to 

demonstrate how Birch supposedly had disposed of the rifle. 

Sheriff Crockett then took Cherrix back to Accomack County 

Jail. 

Although Birch had died in 1995, the police conducted an 

investigation of his whereabouts on the night of the murder, 

3
and they concluded that he was not a suspect in the Van Hart 

murder. In August 1996, after having been sentenced on 

unrelated charges to 20 years imprisonment with all but nine 

years suspended, Cherrix was transferred to the custody of the 

Virginia Department of Corrections to serve his sentence. 

On April 16, 1997, Cherrix was returned to Accomack 

County Jail on charges of uttering and grand larceny. During 

the drive from Brunswick Correctional Center to the Accomack 

County Jail, Chincoteague Assistant Police Chief Edward Lewis 

interviewed Cherrix regarding the Van Hart murder. After 

Lewis advised Cherrix of his Miranda rights and Cherrix agreed 

to discuss the matter, Cherrix told Lewis yet a different 

version of what he claimed had happened on the night of the 

murder, still maintaining that Birch had committed the murder. 

On April 17, 1997, counsel was appointed for Cherrix's 

uttering and grand larceny charges. On April 25, 1997, 

Cherrix submitted a written request to the Accomack County 

Jail authorities asking to see Lewis. Lewis went to the jail 

to see Cherrix. After Lewis advised Cherrix of his Miranda 

rights and Cherrix reaffirmed that he wanted to speak with 

Lewis, Cherrix confessed to the murder and sodomy of Van Hart. 

Cherrix then accompanied Lewis and an Accomack County 

sheriff's deputy to Chincoteague, where he directed the 

4
officers on a tour of various locations that he had described 

in his confession. 

II. Proceedings 

Cherrix was indicted for capital murder, forcible sodomy, 

two counts of using a firearm in the commission of those 

offenses, and one count of being a felon in possession of a 

firearm. Code §§ 18.2-31, -67.1, -53.1, and -308.2. At the 

conclusion of the guilt stage of a bifurcated jury trial 

conducted pursuant to Code §§ 19.2-264.3 and –264.4, the jury 

convicted Cherrix on all counts. 

After hearing evidence on the issue of punishment, the 

jury sentenced Cherrix to death for the capital murder, life 

imprisonment for the forcible sodomy, a total of eight years 

for using a firearm in the commission of those offenses, and 

five years for possessing a firearm after being convicted of a 

felony. Cherrix's death sentence was based upon the jury's 

finding of both "future dangerousness" and "vileness." See

Code § 19.2-264.4. The trial court reviewed the presentence 

report and victim impact statements and imposed all of the 

sentences fixed by the jury. 

Cherrix appeals his capital murder conviction, Record No. 

981798. We have certified Cherrix's appeal of his non-capital 

convictions from the Court of Appeals, Record No. 982063, and 

have consolidated the two appeals. 

5
III. Issues Previously Decided 

Cherrix filed a pre-trial motion asking the trial court 

to declare the Virginia death penalty statutes 

unconstitutional on a number of grounds. He also filed pretrial motions asking the trial court to allow the use of a 

jury questionnaire, to allow individual sequestered voir dire, 

and to supplement the trial court's voir dire with questions 

submitted by defense counsel in order to ascertain possible 

juror bias necessary to empanel an impartial jury.1 He now 

appeals the trial court's denial of those motions, raising 

issues that we have considered and rejected in previous cases: 

 (1) Virginia's two statutory aggravating circumstances 

of "future dangerousness" and "vileness" are not 

unconstitutionally vague. Beck v. Commonwealth, 253 Va. 373, 

387, 484 S.E.2d 898, 907, cert. denied, ___ U.S. ___, 118 

S.Ct. 608 (1997)("vileness"); Clagett v. Commonwealth, 252 Va. 

79, 86, 472 S.E.2d 263, 267 (1996), cert. denied, 519 U.S. 

1122 (1997)("future dangerousness"). 

 (2) Virginia's penalty-stage instructions adequately 

inform the jury regarding the concept of "mitigation." Swann 

 1 The trial court actually granted Cherrix's request for 

individually sequestered voir dire, but limited its inquiry to 

the issues of "publicity and whether a juror would consider 

the death penalty." 

6
v. Commonwealth, 247 Va. 222, 228, 441 S.E.2d 195, 200, cert.

denied, 513 U.S. 889 (1994). 

 (3) The use of unadjudicated conduct to prove "future 

dangerousness" without proof of such conduct beyond a 

reasonable doubt is not unconstitutional. Goins v. 

Commonwealth, 251 Va. 442, 453, 470 S.E.2d 114, 122, cert.

denied, 519 U.S. 887 (1996). 

 (4) Allowing, but not requiring, a trial judge to reduce 

a sentence of death to life imprisonment on a showing of "good 

cause" is not unconstitutional. Breard v. Commonwealth, 248 

Va. 68, 76, 445 S.E.2d 670, 675, cert. denied, 513 U.S. 971 

(1994). 

 (5) Consideration of hearsay evidence or information in 

a presentence report during the sentencing phase of a capital 

murder case is not unconstitutional. Goins, 251 Va. at 453, 

470 S.E.2d at 122; O'Dell v. Commonwealth, 234 Va. 672, 701-

02, 364 S.E.2d 491, 507-08, cert. denied, 488 U.S. 871 (1988). 

 (6) The review provided by this Court on direct appeal 

in capital cases is not unconstitutional. Mickens v. 

Commonwealth, 252 Va. 315, 320, 487 S.E.2d 302, 306 (1996), 

cert. denied, 520 U.S. 1269 (1997). 

 (7) Capital murder defendants do not have the 

constitutional right to individual and sequestered voir dire 

7
of prospective jurors. Stewart v. Commonwealth, 245 Va. 222, 

229, 427 S.E.2d 394, 399, cert. denied, 510 U.S. 848 (1993). 

 (8) Capital murder defendants do not have the 

constitutional right to require the trial court to mail a 

questionnaire to all potential jurors. Strickler v. 

Commonwealth, 241 Va. 482, 489-90, 404 S.E.2d 227, 232, cert.

denied, 502 U.S. 944 (1991). 

 We find nothing in Cherrix's arguments here that warrants 

a change in our previous positions. 

IV. Pre-Trial Issues 

A. Failure to Suppress Cherrix's Confession

 Prior to trial, Cherrix filed a motion asking the trial 

court to suppress all of his statements to the police "on or 

after June 7, 1996, in that on each and every occasion the 

statements secured from the defendant, if any, were obtained 

while the defendant was in custody and denied his right to 

counsel." 

 At the suppression hearing, Cherrix testified that he 

requested counsel in the presence of Sheriff Crockett on the 

return trip from Chesapeake to Accomack on June 7, 1996, and 

that he invoked his right to counsel when he was being 

interrogated by Lewis on the trip from Brunswick Correctional 

Center to Accomack County Jail on April 16, 1997. He admitted 

that he had asked to speak with Lewis on April 25, but he 

8
denied that Lewis advised him of his Miranda rights before 

interrogating him on that date. 

 Sheriff Crockett testified that, while in Chesapeake on 

June 7, 1996, Cherrix had been advised of his Miranda rights 

and that he signed a written waiver. He also testified that 

Cherrix never invoked his right to counsel or his right to 

remain silent during the return trip to Accomack. 

Lewis testified that on April 16, 1997, he advised 

Cherrix of his Miranda rights, and that Cherrix elected to 

speak to him. He denied that Cherrix, "at any time . . . on 

April 16," requested counsel or otherwise indicated that he 

wished to stop answering questions. Finally, Lewis testified 

that when he went to see Cherrix at the Accomack County Jail 

on April 25 pursuant to Cherrix's request, he again advised 

Cherrix of his Miranda rights, and that Cherrix never 

indicated on that date that he wished to have counsel present 

or that he wished to stop answering questions. 

Following the suppression hearing, the trial court denied 

Cherrix's motion to suppress his confession. On appeal, 

Cherrix claims that he clearly invoked his right to counsel on 

April 16, that interrogations nevertheless continued without 

counsel being provided, in violation of his Fifth Amendment 

rights, and that the statements he made during those 

interrogations were thus inadmissible. See Miranda v. 

9
Arizona, 384 U.S. 436 (1966); Edwards v. Arizona, 451 U.S. 477 

(1981).2 Cherrix contends that the trial court's denial of his 

motion to suppress the confession therefore constituted 

reversible error. We do not agree. 

Admissibility of a defendant's statements is an issue to 

be decided by the trial court, which evaluates the credibility 

of the witnesses, resolves any conflicts in the testimony, and 

weighs the evidence as a whole. Watkins v. Commonwealth, 229 

Va. 469, 477, 331 S.E.2d 422, 429 (1985), cert. denied, 475 

U.S. 1099 (1986). Before admitting statements made by a 

defendant during custodial interrogation, the trial court must 

determine whether the defendant knowingly and intelligently 

relinquished and abandoned his rights. See id. The trial 

court's determination is the resolution of a question of fact 

based on the totality of the circumstances, Schneckloth v. 

Bustamonte, 412 U.S. 218, 226 (1973); Watkins, 229 Va. at 477, 

331 S.E.2d at 430, and will not be disturbed on appeal unless 

 2

 Although Cherrix does not explicitly argue that the 

admission of his confession violated his Sixth Amendment right 

to counsel, he does make repeated references to the fact that 

counsel had been appointed to him on unrelated charges prior 

to his being interrogated on April 25. However, as the 

Commonwealth points out, the Sixth Amendment right to counsel 

is charge-specific and does not "travel with a defendant and 

attach [itself] to any other crimes . . . ." Eaton v. 

Commonwealth, 240 Va. 236, 252, 397 S.E.2d 385, 394 (1990), 

cert. denied, 502 U.S. 824 (1991). 

10
plainly wrong. Jones v. Commonwealth, 228 Va. 427, 441, 323 

S.E.2d 554, 561 (1984), cert. denied, 472 U.S. 1012 (1985). 

Here, the record supports the trial court's admission 

into evidence of Cherrix's statements to the police. Lewis 

testified unequivocally that he read Cherrix his Miranda 

rights on April 16 and April 25, and that Cherrix never asked 

for counsel on either date. Cherrix testified to the 

contrary; however, the trial court was in a position to 

evaluate the credibility of witnesses and its decision to 

accept Lewis' testimony and reject Cherrix's testimony is 

amply supported by the record. See Watkins, 229 Va. at 477, 

331 S.E.2d at 430. 

B. Failure to Disclose Exculpatory Material

 Prior to trial, the trial court accepted the 

Commonwealth's assertion that all discovery requirements had 

been satisfied and declined to rule on Cherrix's motion for 

discovery. At that time, the Commonwealth had a written 

statement from Cherrix's grandmother asserting that Cherrix 

was at home on the night of Van Hart's murder and that he 

placed a telephone call to his wife "around 8:00 o'clock or 

so." The Commonwealth had not disclosed this written 

statement to Cherrix. 

 At trial, Cherrix's grandmother testified as an alibi 

witness for him and stated that Cherrix placed a telephone 

11
call to his wife at 8:15 on the night of the murder and that 

the call went on "a long while." On cross-examination, she 

testified that she had been interviewed by a police officer, 

but that she could not remember what she told the officer. 

The Commonwealth subsequently called the interviewing officer 

as a rebuttal witness and asked him to read the statement 

signed by Cherrix's grandmother. Cherrix objected to the 

admission of the statement, asserting that it contained 

exculpatory material which should have been disclosed by the 

Commonwealth prior to trial. See Brady v. Maryland, 373 U.S. 

83 (1963). The trial court overruled Cherrix's objection and 

admitted the written statement. 

 On appeal, Cherrix asserts that his knowledge of the 

information contained in the statement does not excuse the 

Commonwealth's failure to disclose the statement, but shows a 

lack of good faith and violates the due process clause under 

Brady. We disagree. 

 The disclosure requirement imposed by Brady applies to 

material exculpatory evidence. Exculpatory evidence is 

material if there is a reasonable probability that the outcome 

of the proceeding would have been different had the evidence 

been disclosed to the defense. United States v. Bagley, 473 

U.S. 667, 682 (1985); Robinson v. Commonwealth, 231 Va. 142, 

151, 341 S.E.2d 159, 164 (1986). In calling his grandmother 

12
as an alibi witness, Cherrix demonstrated that he and his 

counsel knew about and relied upon her testimony regarding his 

presence at home on the night of the murder and the telephone 

call he made to his wife. The content of her written 

statement was, as he admits, "reasonably known" and 

"consistent with the defense case." 

The written statement of the grandmother's testimony did 

not change the substance of the information known to the 

defense, and the failure to disclose the fact that she had 

executed a written version of her testimony did not deprive 

Cherrix of material exculpatory information in violation of 

Brady. See Castillo v. Johnson, 141 F.3d 218, 223 (5th Cir.), 

cert. denied, ___ U.S. ___, 119 S.Ct. 28 (1998)(prosecution 

has no obligation to produce information already known to 

defense). Accordingly, the trial court did not err in 

overruling Cherrix's objection and admitting the statement 

into evidence. 

V. Guilt Phase 

A. Reading and Admission of Statement

 During the Commonwealth's direct examination, Lewis 

related the oral confession Cherrix made during their April 25 

conversation. Lewis then testified that he briefly left the 

room after Cherrix made the oral confession, with the 

expectation that Cherrix would write out and sign a written 

13
confession. When Lewis returned, however, Cherrix had not 

done so. 

Lewis testified that he then initiated "a question and 

answer session" with Cherrix, in which he asked Cherrix 

several questions concerning the murder, wrote down each 

question as he had asked it, and then wrote down Cherrix's 

response to each question "word for word." Lewis testified 

that he then read Cherrix's answers back to him, and that 

Cherrix acknowledged the accuracy of each written response 

before Lewis would proceed to the next question. When all the 

questions and answers were complete, Lewis asked Cherrix to 

sign the document, but Cherrix refused. 

After Lewis testified about the procedure used in the 

"question and answer session," he then proceeded to read each 

question and answer to the jury. Cherrix objected, taking the 

position that, because the "question and answer" document was 

not signed, it was "nothing more than a continuing oral 

statement at which time the officer may have taken notes." 

Cherrix asserted that since the document was merely Lewis' 

notes of the conversation, Lewis should only be permitted to 

refer to it to refresh his recollection, but not to read 

directly from it. 

The trial court overruled Cherrix's objection and 

permitted Lewis to read each question and answer. Cherrix 

14
then raised an objection to the admission of the document into 

evidence as an exhibit, but the trial court deferred ruling 

until after Lewis finished testifying. The Commonwealth moved 

to admit the document following Lewis' direct examination, and 

the trial court again deferred its ruling pending crossexamination of Lewis by the defense. The record bears no 

indication that the document was thereafter admitted as an 

exhibit; however, the document was made a part of the record 

because Cherrix attached it to a post-trial motion. 

On appeal, Cherrix renews his argument that the "question 

and answer" document is merely Lewis' notes. He asserts that 

a document must be admitted into evidence as an exhibit if it 

is to be read to the jury by a witness, and that the only 

exception to this rule is the hearsay exception of "past 

recollection recorded." Cherrix concludes that, because the 

Commonwealth did not meet the foundational requirements for 

introduction of "past recollection recorded" material, the 

trial court erred by permitting Lewis to read from the 

"question and answer" document. We disagree. 

Contrary to Cherrix's assertion that the "question and 

answer" document represented Lewis' notes, the trial court 

found that the document represented Cherrix's own statements: 

[I]n all of the other statements that have come 

in in this case, they have been statements that 

were oral and that were testified to by the 

15
witness primarily from memory with him from time 

to time referring to notes to refresh his 

recollection, but in this case it is a very 

different set of circumstances. The witness has 

stated that he specifically referred – that he 

specifically wrote out a question. Specifically 

asked a question. Specifically wrote down word 

for word the answer and reviewed it with the 

defendant. . . . 

(Emphasis added.) As characterized by the trial court, then, 

the "question and answer" document was elevated to the status 

of a written confession. 

There can be no question but that a written confession is 

admissible into evidence. Confessions, whether oral or 

written, are admissible against a criminal defendant under the 

"party admission exception" to the hearsay rule. Quintana v. 

Commonwealth, 224 Va. 127, 148, 295 S.E.2d 643, 654 (1982), 

cert. denied, 460 U.S. 1029 (1983); Land v. Commonwealth, 211 

Va. 223, 229, 176 S.E.2d 586, 590-91 (1970). This is true even 

if the written confession is unsigned, as long as the defendant 

understood and adopted its substance. Wong Sun v. United 

States, 371 U.S. 471, 491 (1963)("The fact that the statement 

was unsigned, whatever bearing this may have upon its weight 

and credibility, does not render it inadmissible"). Because 

the "question and answer" document was admissible as a 

confession, the failure of the Commonwealth to lay a foundation 

for its admission under the "past recollection recorded" 

exception is irrelevant. 

16
 Although the "question and answer" document could have 

been admitted into evidence as an exhibit and would have been 

the best evidence of Cherrix's confession, see McDaniel v. 

Commonwealth, 183 Va. 481, 32 S.E.2d 667 (1945), Cherrix 

objected to its admission as an exhibit at trial. Therefore, 

he cannot now argue that the trial court erred in allowing the 

confession to be admitted in secondary form – through Lewis' 

reading it into evidence. For these reasons, there was no 

error in the trial court's decision to permit Lewis to read 

from the "question and answer" document during his testimony. 

B. Motion to Set Aside the Verdict

Cherrix argues that the trial court erred in denying his 

motion to set aside the verdict as contrary to the law and 

evidence because the Commonwealth failed to prove the corpus

delicti beyond a reasonable doubt. We disagree. 

 In every criminal prosecution, the Commonwealth must 

prove the element of corpus delicti, that is, the fact that 

the crime charged has been actually perpetrated. Maughs v. 

City of Charlottesville, 181 Va. 117, 120, 23 S.E.2d 784, 786 

(1943). Further, if the accused has fully confessed that he 

committed the crime, then only slight corroboration of the 

confession is required to establish corpus delicti beyond a 

reasonable doubt. Jackson v. Commonwealth, 255 Va. 625, 646, 

499 S.E.2d 538, 551 (1998). 

17
 Cherrix was charged with capital murder, forcible sodomy, 

use of a firearm in the commission of those offenses, and 

being a felon in possession of a firearm. Cherrix fully 

confessed to having committed these crimes, and the record 

reveals that the Commonwealth produced considerably more than 

slight evidence to corroborate Cherrix's confession. 

 As discussed above, Van Hart's dead body was found with 

two .22 caliber gunshot wounds to the head. The autopsy 

revealed recent penetration of the anus and signs of blunt 

force trauma to the head shortly before death. This evidence 

sufficiently corroborates Cherrix's statements that he 

sodomized Van Hart and shot her to death. 

 Furthermore, Christopher Fox, an acquaintance of Cherrix, 

identified the .22 caliber rifle found by the police, at the 

exact location indicated by Cherrix, as the rifle Fox had sold 

to Cherrix. Cherrix's former wife also identified the rifle 

as one Cherrix once owned. The Commonwealth also established 

that Cherrix was a convicted felon at the time of the offense. 

This evidence sufficiently corroborates the commission of the 

firearm offenses. Accordingly, the trial court did not err in 

denying Cherrix's motion to set aside the verdict. 

C. Jury Instructions

 At the conclusion of the guilt stage of the trial, 

Cherrix proffered the following jury instruction: 

18
If you believe that Brian Lee Cherrix did not freely 

and voluntarily give a statement to law enforcement 

officers concerning his alleged involvement in the 

sodomy and murder of Tessa Van Hart, then you may 

give any such statement as much or as little 

credibility as you deem appropriate. 

The credibility and weight of any statements 

presented to the jury as having been made by the 

defendant are submitted for your consideration along 

with all the other evidence. The weight, the 

credibility, the sufficiency are questions for 

determination by you the jury. 

The trial court granted the second paragraph of the 

instruction but refused to grant the first paragraph on the 

ground that there was no evidence to support a conclusion by 

the jury that Cherrix's statements to police were involuntary. 

The trial court also granted a "general" instruction, advising 

the jury of its role in assessing the credibility of witnesses 

and the weight of evidence. 

On appeal, Cherrix claims that a general instruction on 

credibility was insufficient to properly inform the jury of 

their role in assessing the voluntariness of Cherrix's 

confession, and that, therefore, the trial court erred in 

refusing his instruction regarding the voluntariness of his 

statements to police. After reviewing the record, however, we 

find no error in the trial court's denial of Cherrix's 

proffered instruction. 

While it is true that the trial court's pre-trial 

determination that a defendant's statements are admissible in 

19
evidence does not preclude the defendant from proving at trial 

that those statements were made involuntarily, see Jackson v. 

Commonwealth, 193 Va. 664, 674, 70 S.E.2d 322, 328 

(1952)("Admissibility of confession is for trial court but its 

weight and value are for the jury."), it is also well 

established that a defendant is not entitled to a jury 

instruction unless it is supported by more than a scintilla of 

evidence. Commonwealth v. Donkor, 256 Va. 443, 445, 507 

S.E.2d 75, 76 (1998). 

Cherrix testified at a pre-trial suppression hearing that 

the police had violated his Miranda rights; however, he 

elected not to testify at trial, and the evidence presented to 

the jury was undisputed that Cherrix's statements to police 

were preceded by voluntary and intelligent waivers of those 

rights. Furthermore, the trial court not only gave a 

"general" instruction on the jury's role in assessing 

credibility, but also granted the instruction contained in the 

second paragraph above, which specifically relates to the 

weight and credibility of statements "having been made by the 

defendant." Accordingly, we conclude that the jury was 

adequately apprised of its role, and that the trial court 

properly refused Cherrix's proffered instruction. 

VI. Sentencing Phase 

A. Mental Health Expert

20
Cherrix argues that the trial court erred in denying him 

an adequate and competent mental health expert, as required by 

Code § 19.2-264.3:1. That statute provides, in relevant part: 

The mental health expert appointed pursuant to this 

section shall be (i) a psychiatrist, . . . who has 

successfully completed forensic evaluation training 

as approved by the Commissioner of Mental Health, 

Mental Retardation and Substance Abuse Services and 

(ii) qualified by specialized training and 

experience to perform forensic evaluations. The 

defendant shall not be entitled to a mental health 

expert of the defendant's own choosing . . . . 

Code § 19.2-264.3:1(A). Cherrix claims that Dr. John Bulette, 

the expert appointed by the trial court, did not possess the 

qualifications required by the statute. Because the record 

shows that Dr. Bulette was qualified under the statute, 

however, we find no error in the trial court's appointment.3

Cherrix filed a motion, pursuant to the statute, 

requesting the appointment of a defense expert to assist him 

in the capital sentencing phase of the trial. At a subsequent 

hearing, Cherrix informed the trial court that he had inquired 

into available experts, that he had "selected" Dr. Leigh Hagan 

of Chesterfield County, and that he wanted the trial court to 

appoint Dr. Hagan. 

 3 On appeal, Cherrix implies that the trial court's action 

denied him rights under the United States Constitution. See

Ake v. Oklahoma, 470 U.S. 68 (1985). To the extent that he 

attempts to make this argument, however, it is defaulted 

because he did not object to Dr. Bulette's appointment on any 

21
 The trial court subsequently informed counsel by 

telephone that it had decided not to appoint Dr. Hagan because 

of the distance between Chesterfield County and Accomack 

County, and that it would instead appoint a local 

psychiatrist, Dr. John Bulette. Without any objection, the 

trial court then entered an order appointing Dr. Bulette. 

 Two days later, Cherrix filed a motion to reconsider the 

matter and to appoint Dr. Hagan rather than Dr. Bulette, which 

motion the trial court denied. At the hearing on that motion, 

Cherrix conceded that Dr. Bulette was a psychiatrist who had 

successfully completed his forensic evaluation training. He 

contended, however, as he does now on appeal, that because Dr. 

Bulette had never before been involved in a capital murder 

case, he was not "qualified by specialized training and 

experience to perform forensic evaluations," as required by 

the statute. 

 Contrary to Cherrix's interpretation of Code § 19.2-

264.3:1(A)(ii), however, the statute does not require 

experience in capital murder cases as a qualification for an 

appointed expert. The relevant part of that statute simply 

requires specialized training and experience to perform 

forensic evaluations. The trial court was familiar with Dr. 

 

constitutional basis at trial. Rule 5:25. Therefore, we 

address only his statutory argument.

22
Bulette's background and specifically found that Dr. Bulette 

had "substantial experience" in such evaluations. Cherrix 

does not argue that Dr. Bulette lacked the training and 

experience expressly required by the statute, and we decline 

his invitation to graft onto the statute the additional 

requirement of experience in capital murder cases. 

Accordingly, we find no error in the trial court's appointment 

of Dr. Bulette. 

B. Corrections Expert and Witnesses

 Cherrix sought to present evidence regarding prison life 

and its effect on his "future dangerousness" through the 

testimony of an expert penologist, several Virginia 

corrections officials, a criminologist, a sociologist, and an 

individual serving a life sentence in the custody of the 

Virginia Department of Corrections. The trial court initially 

granted Cherrix's motion for the appointment of an expert 

penologist pending submission of a report and cost estimate. 

The Commonwealth objected to the issuance of a subpoena for 

the inmate and moved to quash the subpoenas issued for the 

corrections officials, criminologist, and sociologist. 

Following a hearing at which Cherrix proffered the 

testimony of these witnesses, the trial court determined that 

Cherrix's evidence was immaterial as mitigation evidence and 

therefore refused to compel the witnesses' attendance through 

23
subpoenas. The trial court vacated its prior order granting 

Cherrix's motion for appointment of an expert on the basis 

that the report was not timely filed, the cost estimate was 

high, and the proffered testimony of the expert, like the 

proffered testimony of the other witnesses sought, was 

immaterial. 

Cherrix argues that the trial court erred because Code 

§ 19.2-264.4 allows presentation of mitigating evidence. He 

contends that exclusion of his proffered "mitigation evidence" 

was an abuse of discretion and violated his federal 

constitutional rights as established in Skipper v. South 

Carolina, 476 U.S. 1 (1986), and Eddings v. Oklahoma, 455 U.S. 

104 (1982). We disagree. 

 Although the United States Constitution guarantees the 

defendant in a capital case a right to present mitigating 

evidence to the sentencing authority, it does not limit "the 

traditional authority of a court to exclude, as irrelevant, 

evidence not bearing on the defendant's character, prior 

record, or the circumstances of his offense." Lockett v. 

Ohio, 438 U.S. 586, 605 n.12 (1978). Code § 19.2-264.4(B) 

vests the trial court with the discretion to determine, 

subject to the rules of evidence governing admissibility, the 

evidence which may be adduced in mitigation of the offense. 

24
Coppola v. Commonwealth, 220 Va. 243, 253, 257 S.E.2d 797, 804 

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

 The record shows that the evidence Cherrix sought to 

introduce involved the general nature of prison life. The 

inmate's proffered testimony sought to establish, based on the 

inmate's personal prison experience, what prison life would be 

like for Cherrix if he received a life sentence. The 

officials from the Department of Corrections would have 

testified regarding the ability of the penal system to contain 

Cherrix and the cost to the taxpayers of an inmate's life 

sentence. Cherrix's counsel stated that the testimony of the 

expert penologist, the sociologist, and the criminologist 

would be similar to that of the inmate and corrections 

officials. As the trial court observed, none of this evidence 

concerns the history or experience of the defendant.4 We agree 

with the conclusion of the trial court that "what a person may 

expect in the penal system" is not relevant mitigation 

evidence. Accordingly, we will affirm the judgment of the 

trial court excluding this evidence. 

C. Post Trial-Offense Convictions

 4

 Contrary to Cherrix's assertion, none of the evidence 

proffered at trial addressed Cherrix's ability to conform or 

his experience in conforming to prison life, as the 

defendant's evidence did in Skipper, 476 U.S. at 4. 

25
Cherrix filed a pre-trial motion to exclude from the 

sentencing phase of the trial evidence of crimes he committed 

after he committed the capital offense in January of 1994. 

The trial court declined to rule on the motion because it was 

premature. During the sentencing phase, the Commonwealth 

offered as evidence two convictions that Cherrix received 

after January 1994. We have already stated on two prior 

occasions that evidence of "prior history" to establish future 

dangerousness under Code § 19.2-264.4(C) encompasses the time 

after which the subject offense was committed, Joseph v. 

Commonwealth, 249 Va. 78, 88-89, 452 S.E.2d 862, 869, cert.

denied, 516 U.S. 876 (1995), and includes a defendant's most 

recent history, Saunders v. Commonwealth, 242 Va. 107, 117, 

406 S.E.2d 39, 45, cert. denied, 502 U.S. 944 (1991). 

Accordingly, the trial court's admission of this evidence was 

proper. 

D. Failure to Properly Advise Jury on Parole Eligibility

 Cherrix contends that the trial court erred in failing to 

properly advise the jury of his eligibility, or lack thereof, 

for parole. He claims that, because "future dangerousness" 

was relevant to his sentencing, the trial court erred in 

failing to inform the jury that Cherrix "would effectively 

never be paroled." The record reveals, however, that Cherrix 

26
has waived this argument for failure to object in the trial 

court. Rule 5:25. 

 At the sentencing phase of the trial, Cherrix did not 

offer a parole eligibility instruction. The issue of parole 

eligibility did not arise until the jury foreman inquired of 

the trial court, during deliberations, whether a life sentence 

would include the possibility of parole. The trial court then 

suggested to counsel that it should "instruct the jury that 

they are to have no concern with parole." When the trial 

court then asked Cherrix for his position on the matter, 

Cherrix responded, "I would suggest that the court instruct 

the jury as you have indicated. [The jury] should not be 

concerned with parole . . . ." The trial court subsequently 

instructed the jury that it "must decide whether to impose a 

life sentence or the death penalty based upon the evidence and 

the instructions that you have received and you are to give no 

consideration to the issue of parole." Cherrix's failure to 

proffer a parole eligibility instruction and his failure to 

object to the trial court's instruction in response to the 

jury's inquiry mentioned above precludes us from addressing 

the merits of this assignment of error. 

E. Aggravating Factors

 A penalty of death may be imposed only if the 

Commonwealth proves, beyond a reasonable doubt, that the 

27
defendant would commit criminal acts of violence that would be 

a continuing serious threat to society or that his conduct in 

committing the offense was outrageously or wantonly vile, 

horrible or inhuman in that it involved torture, depravity of 

mind, or aggravated battery. Code § 19.2-264.4(C). In this 

case, the Commonwealth sought the death penalty based on both 

of the aggravating factors, future dangerousness and vileness. 

The jury returned a sentencing verdict making the required 

findings under both factors. Cherrix contends that the death 

penalty should not have been imposed because it was 

"unreasonable" for the jury to conclude that Cherrix would be 

a continuing serious threat to society, and because the 

Commonwealth failed to prove that his actions in committing 

the crime were outrageously or wantonly vile, horrible, or 

inhuman as that term is defined by the statute. We disagree. 

1. Future Dangerousness

 Cherrix argues that because the jury was fully informed 

of Cherrix's sentences for other crimes, it "could reasonably 

expect" that Cherrix had "at best" a "remote" chance of ever 

being released. Thus, asserts Cherrix, any danger Cherrix 

might pose would be to the society within the prison, and a 

"five-foot-four inch, small framed, light weight man does not 

represent a danger to fellow inmates or guards." 

28
 Not only is this argument based primarily on speculation, 

it ignores the substantial evidence in the record of Cherrix's 

continuing assaultive behavior for which he expressed little 

remorse. Cherrix had a lengthy record of criminal convictions 

including assault and battery, malicious wounding, and use of 

a firearm. Furthermore, after the murder of Van Hart, Cherrix 

shot his half-brother and, according to his own mental health 

expert, had no remorse for the shooting. Cherrix had a 

similar lack of remorse after he broke his mother-in-law's arm 

with a pool cue. Cherrix told his mental health expert that 

he "would say anything to obtain his goals." His expert 

testified that Cherrix had an anti-social personality, was 

"angry with women," and acted out this anger by assaulting 

them. Finally, there is nothing in the record regarding 

Cherrix's ability to conform to prison life and work 

productively in that environment. 

 Our review of the record fully supports the jury's 

determination that Cherrix would constitute a continuing 

serious danger to society. 

2. Vileness

 The jury verdict found Cherrix's conduct in committing 

the crime "outrageously or wantonly vile, horrible or inhuman 

in that it involved torture or depravity of mind . . . ." 

Cherrix argues that the record fails to support this finding 

29
because there was no showing of depravity of mind beyond that 

inherent in ordinary legal malice and premeditation, and 

because there was no torture in that Van Hart died almost 

instantaneously. Again we disagree. 

 The events surrounding the murder show that Cherrix 

carefully planned his crime and lured his victim to a remote 

area. According to the defendant's recitation of events, 

after forcing her at gun point to partially disrobe and lie on 

the ground, he forcibly sodomized her while holding a rifle to 

the back of her head. Even though she "begged [him] not to 

kill her" and promised that she would "act like this never 

happened," he stood over her and shot her in the head for fear 

that "she was going to tell on [him]." Not sure that the 

first shot killed her, he "shot her again to make sure." 

 After the murder, Cherrix drove around with the victim's 

body in the car, considered going to a restaurant for a beer, 

and ultimately abandoned the car and victim at a deserted site 

and tossed the murder weapon in a creek. He then went home 

and called his wife at the hospital "like nothing ever 

happened." Cherrix visited the funeral home to view his 

victim's body and told the police that she looked "beautiful." 

 This evidence supports the jury's determination that 

Cherrix's conduct in committing the sodomy and murder 

30
constituted torture of Van Hart or reflected depravity of 

mind. 

VII. Statutory Review 

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

whether the sentence of death was imposed "under the influence 

of passion, prejudice or any other arbitrary factor," and 

whether such sentence is excessive or disproportionate to 

penalties imposed in similar cases, "considering both the 

crime and the defendant." As to our first consideration, 

Cherrix asserts that the death penalty was imposed under the 

influence of passion, prejudice, or some other arbitrary 

factor because the jury improperly found the aggravating 

factors of future dangerousness and vileness. However, we 

have already determined that these jury findings were 

supported by the record. Our review of the record reveals no 

support for the proposition that the jury imposed the death 

sentence as a result of passion, prejudice, or any other 

arbitrary factor. 

In considering whether the sentence imposed in this case 

is excessive or disproportionate to other sentences imposed 

for similar crimes, we compare the record in this case with 

records in other capital murder cases, including those in 

which life sentences have been imposed. Since the jury based 

its death sentence on both the future dangerousness and 

31
vileness predicates, we give particular consideration to other 

capital murder cases in which the death penalty was sought 

based on both predicates. 

When considering the penalty for convictions of capital 

murder based on premeditated murder and rape/forcible sodomy, 

juries in this Commonwealth have generally, although not 

without exception, imposed the death sentence. Barnabei v. 

Commonwealth, 252 Va. 161, 477 S.E.2d 270 (1996), cert.

denied, 520 U.S. 1224 (1997); Clozza v. Commonwealth, 228 Va. 

124, 321 S.E.2d 273 (1984), cert. denied, 469 U.S. 1230 

(1985); Coleman v. Commonwealth, 226 Va. 31, 307 S.E.2d 864 

(1983), cert. denied, 465 U.S. 1109 (1984); Waye v. 

Commonwealth, 219 Va. 683, 251 S.E.2d 202, cert. denied, 442 

U.S. 924 (1979). The death sentence has been imposed in cases 

where the victim, like the victim in this case, was killed 

solely to assure her silence. Hedrick v. Commonwealth, 257 

Va. ___, ___ S.E.2d ___ (this day decided); Justus v. 

Commonwealth, 220 Va. 971, 266 S.E.2d 87 (1980), cert. denied, 

455 U.S. 983 (1982); Smith v. Commonwealth, 219 Va. 455, 248 

S.E.2d 135 (1978), cert. denied, 441 U.S. 967 (1979). Based 

on this review, we conclude that Cherrix's death sentence is 

neither excessive nor disproportionate to penalties imposed by 

other sentencing bodies in the Commonwealth for similar and 

comparable crimes. 

32
VIII. Conclusion 

We find no reversible error in the issues presented in 

this case. After reviewing Cherrix's death sentence pursuant 

to Code § 17-110.1, we decline to commute the sentence of 

death. Therefore, we will affirm the judgment of the trial 

court. 

Record No. 981798 —Affirmed.

Record No. 982063 —Affirmed.

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