COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Bumgardner 

Argued at Richmond, Virginia 

LARRY JUNIOR CHEATHAM 

 MEMORANDUM OPINION* BY 

v. Record No. 0917-00-2 JUDGE JERE M. H. WILLIS, JR. 

 AUGUST 28, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF PRINCE EDWARD COUNTY 

Richard S. Blanton, Judge 

 Khalil A. Latif for appellant. 

 Shelly R. James, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 On appeal from his jury trial conviction of first-degree 

murder, in violation of Code § 18.2-32, Larry Junior Cheatham 

contends that the trial court erred in refusing to set aside the 

verdict because the evidence was insufficient. For the 

following reasons, we affirm the judgment of the trial court. 

I. BACKGROUND

 On appeal, we view the evidence in the light most favorable 

to the Commonwealth, granting to it all reasonable inferences 

fairly deducible therefrom. See Martin v. Commonwealth, 4 Va. 

App. 438, 443, 358 S.E.2d 415, 418 (1987). The judgment of a 
trial court will be disturbed only if plainly wrong or without 

evidence to support it. See id.

 On May 13, 1998, eighty-two-year-old Edith Delaney was 

found dead in the basement of her home. Her dress was pulled 

up, and her underwear was down around her ankles. Dr. Edward I. 

Gordon, Prince Edward County Medical Examiner, testified that 

the time of death was approximately 11:00 a.m. He further 

testified that a clear fluid, not identified as seminal fluid, 

was present on Ms. Delaney's anal and vaginal areas. 

 Dr. Charles J. Lee, an Assistant Medical Examiner for the 

Commonwealth of Virginia, testified that Ms. Delaney died as a 

result of a single stab wound to her back from a double-edged 

knife and that her body displayed no defensive injuries. He 

further testified that her vaginal area displayed redness that 

appeared to result from rubbing and not from forced penetration. 

 Several witnesses testified that they saw Cheatham in Ms. 

Delaney's neighborhood on the morning of the murder. One 

witness testified that Cheatham wore a "bright fluorescent 

almost Day-Glow T-shirt." 

 Officer Edward S. Gates testified that on May 16, 1998, 

with Cheatham's written permission, the police searched his 

motel room. They recovered a yellow T-shirt containing blood 

stains. A forensic scientist testified that these blood stains 

were consistent with Ms. Delaney's DNA profile. 

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 During the search of his motel room, Cheatham agreed to 

answer a few questions. Officer Gates testified that Cheatham 

denied knowing Ms. Delaney. However, the police had recovered 

two checks written by her to him for yard work he had done for 

her. Officer Gates stated that Cheatham later admitted that he 

knew Ms. Delaney, that he had done yard work for her, and that 

he had spoken with her several times on the day she died. 

 Officer Gates testified that when asked whether he had ever 

been inside Ms. Delaney's house, Cheatham replied that he had 

never been in her house or her basement. Officer Gates 

testified that he had never asked Cheatham about the basement. 

When asked whether he had killed Ms. Delaney, Cheatham replied 

that "he ha[d] never even cut anybody." Officer Gates then 

asked Cheatham how he knew Ms. Delaney had been stabbed. 

Cheatham replied that he did not know that. 

 Lieutenant Wade Stimpson testified that on June 9, 1998, he 

and Officer Anthony Q. Ellington arrested Cheatham and advised 

him of his Miranda rights. Lieutenant Stimpson testified that 

as they were transporting Cheatham to jail, "tears started 

flowing down [Cheatham's] cheek," and he said, "[He] did it." 

Lieutenant Stimpson stated Cheatham told the officers: 

[H]e had gone there on that date to cut her 

grass hopefully in order to be able to get 

thirty dollars to buy a lawnmower she had in 

her basement. Upon arriving there someone 

else was already cutting the grass so he 

walked around the neighborhood for a while. 

After that person left he came back, told 

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[Ms. Delaney] he was there to purchase the 

lawnmower. He followed her around to the 

back. He attempted to buy the lawnmower for 

twenty dollars. She wouldn't sell it to 

him. While she was bent over the lawnmower 

he got a knife and he stabbed her. 

Lieutenant Stimpson testified that he told Cheatham that Ms. 

Delaney's underwear had been pulled down to her ankles. 

Cheatham denied that he had sexual intercourse with her, but 

said he inserted his finger inside her and masturbated. 

Lieutenant Stimpson testified that Cheatham said he disposed of 

the knife he used to stab Ms. Delaney. 

 Officer Ellington witnessed Cheatham's confession and gave 

essentially the same account as Lieutenant Stimpson. 

 Cheatham presented evidence that he had been diagnosed as 

mildly mentally retarded, is legally blind, and has a partial 

hearing loss. 

 Cheatham denied that he killed Ms. Delaney. He testified 

that he stopped by her house on May 13, 1998, but left when he 

saw someone else mowing her yard. He stated that he came back, 

noticed the front door open, heard "rumbling" in the basement, 

went to the back of the house to investigate the sound, and he 

discovered Ms. Delaney dead. He testified that he did not call 

the police because he was scared. He denied that he confessed 

to the police. 

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 During cross-examination, Cheatham admitted that he had 

lied to the police and had given them an account different from 

his testimony. 

II. SUFFICIENCY OF THE EVIDENCE

 Cheatham contends that the evidence was insufficient to 

prove that he was the criminal agent or that he had the 

requisite malice, intent, and premeditation to be guilty of 

first-degree murder. 

A. CRIMINAL AGENCY

 Cheatham first contends that the evidence was insufficient 

to identify him as the perpetrator of the crime. We disagree. 

 Based upon Cheatham's confession, coupled with the 

corroborating evidence of his presence near Ms. Delaney's house 

at the time of the murder, his conflicting statements to the 

police, some of which indicated knowledge of facts only the 

killer could have known, and the presence of Ms. Delaney's blood 

on Cheatham's T-shirt, the jury could properly conclude beyond a 

reasonable doubt that Cheatham killed Ms. Delaney. 

B. MALICE, INTENT, AND PREMEDITATION

 Cheatham next contends that the Commonwealth failed to 

prove that he acted with the malice, intent, and premeditation 

required for first-degree murder. However, he failed to 

preserve this argument at trial and cannot now raise it on 

appeal. See Rule 5A:18. 

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 At the close of the Commonwealth's evidence, Cheatham moved 

to strike the capital murder indictment. He argued that the 

evidence did not support the homicide-in-commission-of-a-felony 

element of capital murder and that the evidence did not support 

the object sexual penetration charge. The motion was denied. 

 Cheatham's motion to strike at the conclusion of all the 

evidence and his closing argument raised only the issue of 

criminal agency, not whether intent, premeditation, and malice 

had been proved. His motion to set aside the jury's verdict was 

based solely on issues raised in the pre-sentence report. 

Therefore, Cheatham is barred from presenting any argument 

related to any element of first-degree murder except criminal 

agency. The record provides no reason to invoke the good cause 

or ends of justice exceptions to Rule 5A:18. 

 We affirm Cheatham's conviction of first-degree murder. 

 Affirmed.

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Benton, J., dissenting. 

 The rule is well established in Virginia that a conviction 

for a criminal offense may not rest only on an uncorroborated 

extrajudicial confession. 

 "Extrajudicial confessions of the 

accused are competent evidence tending to 

prove the corpus delicti. But the corpus 

delicti cannot be established by such a 

confession uncorroborated by other evidence. 

In other words, a conviction in a criminal 

case is not warranted by the extrajudicial 

confession of the accused alone. The 

confession must be corroborated in a 

material and substantial manner by evidence 

aliunde of the corpus delicti." 

Phillips v. Commonwealth, 202 Va. 207, 210-11, 116 S.E.2d 282, 

284 (1960) (citation omitted). Establishing the corpus delicti

"involves the proof of two distinct propositions: first, that 

the act was done; and secondly, that it was done by the person 

charged." Nicholas v. Commonwealth, 91 Va. 741, 750, 21 S.E. 

364, 367 (1895). See also Claxton v. City of Lynchburg, 15 Va. 

App. 152, 154, 421 S.E.2d 891, 893 (1992) (noting that "[t]he 

term corpus delicti, meaning 'the body of a crime,' refers to 

'the objective proof or substantial fact that a crime has been 

committed' . . . [and] 'ordinarily includes two elements: the 

act and the criminal agency of the act'"). Thus, even when 

"there is no doubt that the homicide was proved . . . [, the 

definition of corpus delicti requires that we be] concerned with 

[corroboration of] the defendant's agency in the crime." Lucas 

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v. Commonwealth, 201 Va. 599, 603, 112 S.E.2d 915, 918-19 

(1960). 

 When the evidence establishes only a suspicion or a 

probability of guilt, it is insufficient as a matter of law to 

support a conviction. Tarpley v. Commonwealth, 261 Va. 251, 

257, 542 S.E.2d 761, 764 (2001). 

 Fundamental principles applicable here 

should be reviewed. To justify conviction 

of a crime, it is insufficient to create a 

suspicion or probability of guilt. Rather, 

the burden is upon the Commonwealth to prove 

every essential element of the offense 

beyond a reasonable doubt. "The evidence 

must exclude every reasonable hypothesis of 

innocence and be consistent only with the 

guilt of the accused." 

Moore v. Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740 

(1997) (citations omitted). 

 Four weeks after Edith Delaney was killed, the police 

arrested Larry Junior Cheatham, a mentally retarded man, and 

charged him with murder while committing a robbery. During the 

interval between Delaney's death and Cheatham's arrest, the 

police questioned Cheatham at least six times and made no audio 

or video record of any of those interviews, some of which lasted 

45 minutes. In most instances the details of those interviews 

were established only by the testimony of police officers from 

their memories. Although the officers testified that Cheatham 

denied in all those pre-arrest interviews that he killed 

Delaney, the record contains only a summary of Cheatham's 

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responses during those interviews and does not contain, except 

in one instance, the questions he was asked. Thus, the record 

fails to disclose what information about Delaney's death the 

police conveyed to Cheatham during those interviews. The 

conviction in this case is based upon the police recitation of 

statements they said Cheatham orally gave after they arrested 

him and were delivering him to jail and upon circumstantial 

evidence that fails to corroborate that Cheatham was the killer. 

 At trial, Officers Stimpson and Ellington testified that 

they arrested Cheatham on the charge of capital murder arising 

from the death and robbery of Delaney. During the arrest, the 

officers brandished their weapons and told Cheatham "the 

punishment could be the electric chair." After a magistrate 

denied Cheatham bail, the officers drove Cheatham to the 

regional jail. After they passed Cheatham's residence and 

approached the jail, Cheatham began to cry. The officers 

testified that Officer Ellington told Cheatham "if there is 

something you want to tell us, you need to tell us now." Both 

officers testified that Cheatham then said "I did it." They 

testified that "each time he would make a statement [they asked 

him additional questions] in order to clarify what he was 

talking about to make sure there was no misunderstanding." 

Officer Stimpson testified as follows: 

For example, I asked him to give me the 

whole story about what had occurred. He 

stated he had gone there on that date to cut 

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her grass hopefully in order to be able to 

get thirty dollars to buy a lawnmower she 

had in the basement. Upon arriving there 

someone else was already cutting the grass 

so he walked around the neighborhood for a 

while. After that person left he came back, 

told [Delaney] he was there to purchase the 

lawnmower. He followed her around to the 

back. He attempted to buy the lawnmower for 

twenty dollars. She wouldn't sell it to 

him. While she was bent over the lawnmower 

he got a knife and he stabbed her. 

 Both officers testified that Cheatham initially did not say 

anything in his narrative about other events. For example, 

Cheatham said nothing about a robbery and said nothing about 

Delaney's clothing. Both officers testified that Officer 

Stimpson first raised the issue of sexual assault. He "told 

. . . Cheatham that when [they] discovered . . . Delaney's body 

her underpants had been pulled down and were only remaining on 

one ankle on her leg." When Cheatham was unresponsive to 

Officer Stimpson's inquiry about what then happened, Officer 

Stimpson "asked if he did have sex with her." When asked about 

his testimony at the preliminary hearing, Officer Stimpson 

testified as follows: 

Q. Let me read the question again: When 

you said did you have sex with her, did he 

say no and then stop and then you ask 

another question? 

 What was your response? 

A. I said, no. He said -- I said, I don't 

recall. It's a possibility I said, well, 

why were her pants down if you didn't have 

sex with her? And he may have said in 

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response to that that he stuck his finger in 

her. 

Q. May have said? So on this day you're 

testifying he may have said that he had put 

his finger in her? 

A. I hadn't thought about this part of it 

at that point in time until it came up. At 

that point in time I said he may have said, 

but today I'm saying after proper 

recollection I know he said it. 

 The officers did not seek to obtain a recording of 

Cheatham's statements and did not ask him to sign a statement. 

Instead, they later prepared a summary of his statements. 

Officer Stimpson used a narrative report to describe his 

questioning of Cheatham and typed the report to "clean it up a 

little." Cheatham was later charged with murder while in the 

commission of sexual object penetration. At trial, Officer 

Stimpson testified from his memory to other statements he said 

Cheatham made that day. Officer Ellington also testified that 

he "made an overall summary" and "did not write the questions 

down." He testified that he "just wrote a summary of basically 

what Mr. Cheatham had said." 

 The Commonwealth's other evidence proved that Delaney bled 

to death from an internal hemorrhage caused by a stab wound 

through her back that severed her aorta. The assistant medical 

examiner testified that Delaney could have been stabbed while 

the assailant was standing in front of her or to her side, and 

not just from behind. He also testified that bruising on her 

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chin indicates she could have been held or struck on her chin by 

the assailant. He testified that from the physical evidence 

there was no way to know whether she was bending or standing 

when she was stabbed. 

 Although the police officer testified that Cheatham said he 

"stuck his finger in [Delaney]," no evidence confirmed that 

event occurred. The assistant medical examiner testified that 

penetration was "unlikely because the microscopic [examination] 

showed no acute injury in that area." He also testified that 

there were no lacerations or contusions to Delaney's genitalia 

and that the "3/8 inch pink discoloration" on her genitalia, 

which was referenced in the autopsy report, "was a chronic 

rubbing type of an injury rather than an acute injury." In 

addition, the evidence does not establish the identity of the 

"clear fluid that was not natural" which was found at Delaney's 

"anal area and the perivaginal area or outside the vaginal 

area." Although a certificate of analysis, "indicated the 

presence of blood on the anal swab and on the underpants," those 

circumstances were not explained. Thus, the evidence does not 

eliminate the possibility the fluid was applied by Delaney 

earlier that day before her death to alleviate personal 

discomfort. 

 Near Delaney's body, the police found a comb with hairs 

from a person not of her race. A photograph showed it partially 

beneath her dress on the floor. A forensic scientist who tested 

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the hairs on that comb for the police testified that the hairs 

were not consistent with Cheatham's hair. He also testified 

that he recovered "a characteristically Caucasian body hair" 

from Delaney's underpants. That hair could not have been 

Cheatham's. Although the police recovered partial fingerprints 

from the basement, they were "unidentifiable." Indeed, the 

evidence found on or near Delaney and in the house did not 

connect Cheatham to the killing and tended to indicate the 

presence of another person. 

 The police did not recover the instrument used to stab 

Delaney. The medical examiner's report notes that Delaney's 

wound "is a 3/4 inch stab wound, the inferior edge is sharp and 

there are two sharp ends superiorly," and it identifies the 

instrument causing the wound as a "suspect knife." The 

assistant medical examiner testified that the wound could also 

indicate that the instrument was consistent with "a double-sided 

well sharpened knife." No evidence proved Cheatham ever owned 

an instrument that would make a wound of this shape. Put 

simply, the Commonwealth's own evidence raises the hypothesis, 

which was not disproved, that another person killed Delaney. 

 None of the evidence tends to corroborate the statements 

the police officers attributed to Cheatham orally identifying 

himself as the killer. In Phillips, the Supreme Court 

overturned a conviction because insufficient evidence other than 

a confession supported the conviction. The Court reiterated the 

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well established "'rule in criminal cases . . . that the 

coincidence of circumstances tending to indicate guilt, however 

strong and numerous they may be, avails nothing unless the 

corpus delicti . . . be first established.'" 202 Va. at 211-12, 

116 S.E.2d at 285 (citations omitted). The Court ruled that a 

conviction cannot stand when the corroborating evidence "is just 

as consistent with non-commission of the offense as it is with 

its commission." Id. at 212, 116 S.E.2d at 285. 

 It is not sufficient that the evidence merely establish 

that a crime was committed because "'[t]he corpus delicti 

consists not merely of an objective crime, but of the 

defendant's agency in the crime.'" Lucas, 201 Va. at 603, 112 

S.E.2d at 918 (citation omitted). An obvious purpose of the 

rule is to avoid punishing a person for a crime that person 

never, in fact, committed. Jefferson v. Commonwealth, 6 Va. 

App. 421, 424, 369 S.E.2d 212, 214 (1988) (citation omitted). 

These principles have heightened importance here because "[t]he 

concern in a case involving a defendant of subnormal 

intelligence is one of suggestibility." Jurek v. Estelle, 623 

F.2d 929, 938 (5th Cir. 1980). 

 We have learned the lesson of history, 

ancient and modern, that a system of 

criminal law enforcement which comes to 

depend on the "confession" will, in the long 

run, be less reliable and more subject to 

abuses than a system which depends on 

extrinsic evidence independently secured 

through skillful investigation. 

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Escobedo v. Illinois, 378 U.S. 478, 488-90 (1964) (footnotes 

omitted). Reliable research supports the conclusion that 

mentally retarded persons process information in a way "that 

even when a mentally retarded suspect's responses appear normal, 

his answers may not be reliable." State v. Moore, 364 S.E.2d 

648, 655 (N.C. 1988). "Persons who are mentally retarded are 

described as having 'significantly sub-average general 

intellectual functioning existing concurrently with deficits in 

adaptive behavior and manifested during the developmental 

period.'" Penry v. Lynaugh, 492 U.S. 302, 308 n.1 (1989) 

(citation omitted). 

 Cheatham does not dispute that he went into Delaney's 

basement the day she was killed. He testified that he spoke 

with Delaney earlier that morning when he was walking about town 

seeking to find odd jobs. He had previously cut her grass for 

pay and went to her residence that day seeking to cut her grass. 

The evidence also proved he sought to do casual labor, such as 

cutting grass, for two of Delaney's neighbors that same morning. 

Cheatham testified that after he first spoke to Delaney, he 

returned to ask about purchasing her old lawnmower, which the 

evidence proved was in her basement near her newer mower. He 

testified that when he called to her from her front screened 

door he heard a "rumbling" in the basement, which he said 

"sounded like somebody was making a lot of noise." He went 

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around to the basement door and entered the basement to look for 

Delaney. 

 The assistant medical examiner testified that because 

Delaney suffered from an internal hemorrhage after being 

stabbed, she would not have died instantaneously. He said "it 

would have taken a few seconds, maybe a couple of minutes [for 

Delaney] to bleed that much" and die. The evidence does not 

disprove that Cheatham heard Delaney moving in the throes of 

dying. 

 Cheatham testified that when he went into the basement, 

Delaney was on the floor. Cheatham, whose eyesight is so 

deficient that he is legally blind, testified that after he saw 

Delaney, "I [knelt] down. Some blood or something was running 

down in the floor, and I [knelt] behind her to see was she 

breathing." As mentioned by the majority, two "tiny" stains of 

Delaney's blood were found on a T-shirt recovered from 

Cheatham's home. These stains, however, serve to corroborate 

the defense's theory of the case because the presence of the 

stains are consistent with Cheatham's testimony that he kneeled 

near her body, detected she was not breathing, saw blood, and 

then left. He said he did not contact the police because he had 

not been in that situation before and was afraid. 

 Cheatham also testified that although he knew the 

magistrate "said [he] didn't have no bond," he did not 

understand the consequence of that. He thought he was going 

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home. Cheatham, who had never before been arrested, became 

upset when the police officers drove him past his residence 

while going to jail. He began to cry. He testified that 

Officer Stimpson began roughly talking to him and demanding 

answers. Cheatham said he did not remember their questions and 

did not remember making the responses they attributed to him. 

Cheatham said he "won't answering any questions . . . just 

shaking, nodding [his] head." 

 Cheatham denied killing Delaney and, except for the police 

officer's recitation of Cheatham's statements while crying, the 

record establishes Cheatham has consistently denied killing her. 

Indeed, when he was asked by Officer Gates during a pre-arrest 

interview whether he killed Delaney, Cheatham responded "that he 

has never even cut anybody." (Emphasis added). That statement 

is only assertion with an idiomatic intensive that Cheatham had 

not ever injured anyone with a weapon. 

 The evidence proved that Cheatham, who was thirty-five 

years old when these events occurred, has not been convicted of 

any criminal offense. Cheatham's mental retardation is well 

documented. His cognitive disability was identified "as early 

as first grade." He has an IQ that is in the lowest first, 

second, or third percentile of the population. Cheatham's IQ 

records indicate his lowest ability was in "social 

comprehension; in other words, the ability to understand social 

situations." He is weakest in verbal skills, which the record 

- 17 -
establishes are "skills . . . that . . . [involve] the ability 

to understand verbal information, remember it and use it, 

vocabulary, knowledge about the world, social comprehension, 

knowing what to do in social situations." 

 The record clearly established that the anxiety of arrest 

and immediate realization of incarceration produced responses 

from Cheatham that caused him to cry. Cheatham had no 

familiarity with the criminal justice system. Although the 

officers testified that Cheatham verbally gave inculpatory 

statements in this condition of distress, no evidence 

corroborates that he killed Delaney. Moreover, this is not a 

case in which it can be said that Cheatham "had confessed to the 

crime not in a general manner, but as one who was familiar with 

the minutiae of its execution." Washington v. Murray, 4 F.3d 

1285, 1292 (4th Cir. 1993). As the Supreme Court noted in 

Burrows v. Commonwealth, 224 Va. 317, 295 S.E.2d 893 (1982): 

 Based on the evidence as a whole, the 

Commonwealth did not prove beyond a 

reasonable doubt [Cheatham] was the criminal 

agent. The most that can be stated is that 

the evidence created a suspicion [he] was 

the perpetrator. "Suspicion, however, no 

matter how strong, is insufficient to 

sustain a criminal conviction." 

Id. at 319-20, 295 S.E.2d at 895 (citation omitted). 

 For these reasons, I would reverse the conviction. 

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