COURT OF APPEALS OF VIRGINIA 

Present: Judges Clements, Agee∗ and Felton 

Argued at Richmond, Virginia 

EUGENE HARRY PROCTOR, III 

 OPINION BY 

v. Record No. 2524-01-2 JUDGE G. STEVEN AGEE 

 APRIL 1, 2003 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF WESTMORELAND COUNTY 

 Horace A. Revercomb, III, Judge 

 Donald M. Haddock, Jr. (George W. Townsend, 

III; Redmon, Peyton & Braswell, L.L.P.; 

George W. Townsend, III, P.C., on briefs), 

for appellant. 

 Eugene Murphy, Assistant Attorney General 

(Jerry W. Kilgore, Attorney General, on 

brief), for appellee. 

 A Westmoreland County Circuit Court jury found Eugene H. 

(a.k.a. "Trey") Proctor, III (Proctor) guilty of murder in the 

first degree, discharging a firearm in an occupied building and 

use of a firearm while committing murder. Proctor was sentenced 

to life imprisonment, ten years imprisonment, and three years 

imprisonment, respectively. On appeal Proctor alleges the trial 

court erred by: (1) permitting the Commonwealth to treat its own 

witness as hostile and impeach him through the use of a prior 

 ∗

 Justice Agee participated in the hearing and decision of 

this case prior to his investiture as a Justice of the Supreme 

Court of Virginia. 
written statement, (2) admitting improper testimony from the 

victim's mother, (3) not finding as a matter of law that the 

evidence was insufficient to support his conviction, (4) 

allowing the Commonwealth to proceed with a charge under Code 

§ 18.2-279 in addition to the charge of murder under Code 

§ 18.2-32, and (5) denying his motion for a change of venue. 

For the reasons that follow, we affirm the judgment of the trial 

court. 

I. BACKGROUND 

 "Under familiar principles of appellate review, we examine 

the evidence in the light most favorable to the Commonwealth, 

the prevailing party below, granting to it all reasonable 

inferences fairly deducible therefrom." Birdsong v. 

Commonwealth, 37 Va. App. 603, 605, 560 S.E.2d 468, 469 (2002) 

(citing Juares v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 

677, 678 (1997)). 

 The facts are generally undisputed. On April 23, 2000, 

police officers responded to the residence of Proctor's parents 

in Colonial Beach where they found Joseph Simmons ("Simmons") 

standing by the body of the victim, Crystal Proctor ("Crystal"), 

Proctor's wife. Simmons was present when Proctor shot Crystal 

in the neck, at close range, with a single-shot twelve-gauge 

shotgun. 

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 Earlier in the day Proctor, Crystal, and several of their 

friends had been drinking alcohol and smoking marijuana. In the 

early evening Proctor, Crystal, Carl Nave, Michael Bowie and 

Simmons all went over to Proctor's house. Proctor, Crystal, 

Nave and Bowie then left the house and attempted to purchase 

some marijuana from Jeffrey Hunter ("Hunter") who took their 

money but failed to deliver any marijuana. Proctor, upset by 

this occurrence, returned to his house to retrieve a gun with 

which to confront Hunter. Proctor went into the house while 

Crystal, Nave and Bowie remained in the car. After hearing 

yelling from inside the home, Crystal, Nave and Bowie entered 

the house and saw Proctor and his mother struggling over control 

of a shotgun. Proctor was yelling and screaming about shooting 

someone, and the others tried to calm him down. After gaining 

control of the shotgun, Proctor went outside and then re-entered 

the house without the gun. Proctor (who did not have a driver's 

license) demanded that Crystal drive him to find Hunter but she 

refused. Proctor threatened to "blow her head off" if she did 

not drive him as he demanded. 

 Nave grabbed Proctor in an effort to calm him down. 

However, upon being released, Proctor wrestled with his mother 

over a case containing shells for the shotgun and was able to 

grab several shells. He loaded the shotgun and threatened to 

shoot everyone if they touched him again. Everyone then left 

the house except Simmons, Crystal and Proctor. Simmons 

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testified that Proctor then cocked the shotgun and pointed it at 

Crystal who was crouched down before him weeping. Proctor kept 

saying that he would shoot her if she did not give him a ride. 

Proctor began counting to ten and reiterated that he would shoot 

Crystal if she did not drive him to find Hunter. When Proctor 

finished counting to ten, Crystal arose and began to walk out of 

the room with the shotgun still pointed at her head. Proctor 

then shot her from about five feet away. Proctor yelled to call 

911 and ran out of the house with the gun. He surrendered to 

police three days later. 

II. STANDARD OF REVIEW 

 The admissibility of evidence is within the broad 

discretion of the trial court, and this Court reviews a trial 

court's evidentiary rulings for abuse of discretion. Smallwood 

v. Commonwealth, 36 Va. App. 483, 487, 553 S.E.2d 140, 142 

(2001) (citing Quinones v. Commonwealth, 35 Va. App. 634, 639, 

547 S.E.2d 524, 527 (2001)). "The rule is well established in 

Virginia that 'great latitude [will be given] to the discretion 

of the trial [judge] as to the order in which witnesses may be 

called and the manner of their examination.'" Whitehead v. 

Commonwealth, 31 Va. App. 311, 318, 522 S.E.2d 904, 907 (2000) 

(citing Butler v. Parrocha, 186 Va. 426, 433, 43 S.E.2d 1, 5 

(1947)). 

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III. ANALYSIS 

A. Direct Examination of Carl Nave 

 During the direct examination of Carl Nave, the 

Commonwealth had him review a written statement he had given to 

the police before trial. The Commonwealth then sought to elicit 

testimony from Nave in conformity with the statement. Proctor 

objected to this testimony, based on the written statement, as 

inadmissible hearsay. 

 The trial court stated its assumption that the statement 

was being used to refresh Nave's memory and was therefore 

permissible. The Commonwealth, however, denied the statement 

was to refresh Nave's recollection and represented that the 

statement was "not in conflict" with Nave's testimony to that 

point in the trial. The Commonwealth's Attorney then told the 

trial court she intended "to put it [the prior written 

statement] in evidence." The court sustained defense counsel's 

hearsay objection to admission of the statement. 

 The Commonwealth then requested a bench conference where 

the admissibility of the written statement was argued. The 

Commonwealth again admitted that Nave's testimony was "not in 

conflict with what he said before but it is not as much as he 

said before." Proctor objected to any use of the statement 

because Nave "made no prior inconsistent statement and his 

recollection doesn't need to be refreshed. He has not once said 

I don't remember." At the end of this discussion, the trial 

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court permitted the Commonwealth to approach Nave "with that 

document if he's not including all his prior statements." 

Proctor's objection was overruled. Shortly thereafter, the 

trial court also permitted the Commonwealth to treat Nave as a 

hostile witness, to which Proctor objected. 

 The Supreme Court of Virginia has stated that: 

As a general rule, a prior consistent 

statement of a witness is inadmissible 

hearsay. Graham v. Danko, 204 Va. 135, 138, 

129 S.E.2d 825, 827 (1963); Crowson v. Swan, 

164 Va. 82, 94, 178 S.E. 898, 903 (1935); 

Scott v. Moon, 143 Va. 425, 434, 130 S.E. 

241, 243 (1925). To allow such a statement 

to corroborate and buttress a witness's 

testimony would be an unsafe practice, one 

which not only would be subject to all the 

objections that exist against the admission 

of hearsay in general but also would tend to 

foster fraud and the fabrication of 

testimony. Scott, 143 Va. at 434, 130 S.E. 

at 243. Indeed, it has been said that "'the 

repetition of a story does not render it any 

more trustworthy.'" Id.

Faison v. Hudson, 243 Va. 397, 404, 417 S.E.2d 305, 309 (1992) 

(citations omitted). 

 The Commonwealth contends on appeal that Nave's written 

statement to the police was properly used to refresh his 

recollection on the witness stand. However, that argument 

contradicts the Commonwealth's own statements at trial.1

 1 At trial the following colloquy occurred between the 

Commonwealth and the court: 

THE COURT: I'm assuming that she's 

presenting this to refresh his memory in 

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 The Commonwealth clearly sought to buttress and augment 

Nave's oral testimony on the witness stand with his previously 

recorded consistent written statement. This is inadmissible 

hearsay, unless it fits within one of the narrow exceptions to 

the hearsay rule, whether Nave is a hostile witness or not. See

Faison, 243 Va. at 404-05, 417 S.E.2d at 305 (listing the 

exceptions to the general rule that such consistent statements 

are inadmissible). However, the hearsay exception for past 

recollection recorded does not apply here as the record does not 

reflect Nave forgot anything for which his memory was to be 

 

order to proceed with questioning. Is that 

what –- 

MRS. GARLAND: No, Your Honor. I intend to 

put it in evidence. 

THE COURT: In lieu of his actual testimony? 

MRS. GARLAND: In addition. It's not in 

conflict. 

* * * * * * * 

THE COURT: You've indicated to the Court 

there is some inconsistency in that 

statement, and – 

MRS. GARLAND: What he has said is not in 

conflict with what he said before, but it is 

not as much as he said before. 

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refreshed or supplemented by documentary evidence.2 Charles E. 

Friend, The Law of Evidence in Virginia § 3-7 (5th ed. 1999).3

 Assuming, therefore, that the trial court erred by 

permitting the Commonwealth to examine Nave by use of the prior 

consistent statement, only error that is prejudicial to Proctor 

warrants reversal of the trial court's verdict. The 

Commonwealth asserts that if admitting the testimony derived by 

use of the prior statement was improper, any error in doing so 

was nonetheless harmless. We agree. 

When a trial court errs in allowing the 

presentation of evidence to the jury, this 

Court must decide whether that error was 

harmless. As this issue involves 

non-constitutional error, if appellant "had 

a fair trial on the merits and substantial 

justice has been reached," his convictions 

will not be reversed. Code § 8.01-678. The 

Commonwealth has the burden "to prove that 

 2

 Nave did indicate confusion at one point in response to a 

question from the Commonwealth's Attorney; however, his 

responses to the subsequent questions were substantially the 

same as his prior testimony. 

3

 Proctor characterizes the use of Nave's prior written 

statement as (1) impeachment of the Commonwealth's own witness, 

(2) improper hearsay by use of a prior consistent statement, and 

(3) improper hearsay because the past recollection recorded 

exception does not apply. We address only the last two items as 

the record does not reflect impeachment of Nave's credibility 

during his questioning from the written statement. Further, 

while Proctor objected to Nave being declared a hostile witness, 

he made no argument to the trial court as to why its ruling was 

erroneous. The trial court's determination of whether a witness 

is properly declared hostile is reviewed for an abuse of 

discretion in making that designation. See Whitehead, 31 

Va. App. at 318, 522 S.E.2d at 907 (stating that the manner in 

which witnesses are examined is left to the discretion of the 

trial court). Proctor has identified no abuse of discretion, 

and we find none. 

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the error was non-prejudicial." Beverly v. 

Commonwealth, 12 Va. App. 160, 163-64, 403 

S.E.2d 175, 177 (1991). 

Smallwood, 36 Va. App. at 490, 553 S.E.2d at 143. "An error 

does not affect a verdict if a reviewing court can conclude, 

without usurping the jury's fact finding function, that, had the 

error not occurred, the verdict would have been the same." 

Lavinder v. Commonwealth, 12 Va. App. 1003, 1006, 407 S.E.2d 

910, 911 (1991) (en banc). We analyze each case individually to 

determine whether an error affected the verdict. Id. at 1009, 

407 S.E.2d at 913. 

 Nave's testimony based on the prior written statement 

centered on Proctor's actions before the shooting. The 

Commonwealth used the statement to elicit Nave's testimony about 

Proctor's desire to shoot Hunter for taking his money and 

failing to deliver the marijuana, his struggle with his mother 

over the shotgun shells, his threats to shoot Crystal if she did 

not give him a ride, and his pointing of the gun at Crystal. 

 An examination of the record reveals that Nave's testimony 

elicited from the statement duplicated, as defense counsel 

repeatedly noted, that to which he had already testified. Nave 

had already testified that Proctor "was going to go get his gun" 

and go back for Hunter. He had already testified that Proctor 

"and his mother were struggling over [the case containing the 

shells]." Likewise, he had previously stated that Proctor 

threatened to "blow [Crystal's] head off" unless she gave him a 

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ride. Nave did testify, after looking at the statement, that 

Proctor pointed the gun at Crystal, but he had previously 

testified Proctor was waving the gun around while she was in the 

room. In short, Nave didn't testify, by use of the written 

statement, to anything materially different from his prior 

uncontested testimony before the jury. 

 The testimony of Joseph Simmons, who (unlike Nave) was in 

the room when Proctor shot Crystal, offered much of the same 

testimony. Although Simmons did not go with Proctor and the 

others to buy marijuana, he testified that when the group 

returned to the house Proctor was yelling and screaming and 

"talking about how he was going to shoot somebody." He 

testified that Proctor "and his mom started wrestling with the 

bullet case." Simmons also stated that he saw Proctor load, 

cock and point the gun towards Crystal while threatening to 

shoot her if she didn't give him a ride. Finally, he testified 

that Proctor gave Crystal a count to ten while holding the 

shotgun towards her face. 

 As the jury heard nothing new from Nave by use of the 

written statement, there was no prejudice to Proctor by reason 

of the trial court's error in permitting the Commonwealth to use 

the prior consistent statement. Further, given the 

substantially similar evidence from other witnesses, it is 

apparent that the jury's verdict would have been the same had 

the use of the prior written statement not occurred. 

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Accordingly, we find no reversible error in the trial court 

permitting the Commonwealth to examine Nave by use of the prior 

written statement. 

B. Testimony of Tracy McGuire 

 Proctor alleges the trial court erred by admitting certain 

hearsay testimony from Tracy McGuire, the victim's mother. We 

disagree. 

 The record discloses that the Commonwealth and the court 

repeatedly instructed the witness not to testify to hearsay. 

Nonetheless, there were occasions when Proctor's counsel 

objected to McGuire's testimony as improper hearsay. The trial 

court sustained all of Proctor's hearsay objections. Proctor 

also requested the trial court give the jury a cautionary 

instruction which was promptly given, and McGuire was dismissed 

as a witness. 

 The jury is presumed to follow the court's instructions. 

Burley v. Commonwealth, 29 Va. App. 140, 147, 510 S.E.2d 265, 

269 (1999) ("Juries are presumed to follow prompt cautionary 

instructions regarding the limitations placed upon evidence." 

(citing LeVasseur v. Commonwealth, 225 Va. 564, 589, 304 S.E.2d 

644, 657 (1983))). Proctor cites no reason upon which to base a 

finding that the jury did not do as the court instructed. 

Further, Proctor made no motion for a mistrial and identifies no 

request for relief that was not promptly granted. Accordingly, 

we find no error by the trial court. 

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C. Sufficiency of the Evidence 

 Our standard of review when evaluating the sufficiency of 

the evidence on appeal is guided by familiar principles: 

"When considering the sufficiency of the 

evidence on appeal of a criminal conviction, 

we must view all the evidence in the light 

most favorable to the Commonwealth and 

accord to the evidence all reasonable 

inferences fairly deducible therefrom. The 

jury's verdict will not be disturbed on 

appeal unless it is plainly wrong or without 

evidence to support it." 

Clark v. Commonwealth, 30 Va. App. 406, 409-10, 517 S.E.2d 260, 

261 (1999) (quoting Traverso v. Commonwealth, 6 Va. App. 172, 

176, 366 S.E.2d 719, 721 (1988)). "If there is evidence to 

support the conviction, the reviewing court is not permitted to 

substitute its judgment, even if its view of the evidence might 

differ from the conclusions reached by the finder of fact at the 

trial." Commonwealth v. Taylor, 256 Va. 514, 518, 506 S.E.2d 

312, 314 (1998). 

 Proctor argues that the evidence was insufficient to 

support his conviction. He essentially argues that he was too 

intoxicated to form the requisite intent for first-degree murder 

as a matter of law. "Generally, voluntary intoxication is not 

an excuse for any crime." Wright v. Commonwealth, 234 Va. 627, 

629, 363 S.E.2d 711, 712 (1988). Virginia does recognize one 

exception to this rule: voluntary intoxication can negate the 

premeditation required for first degree-murder. Id. (citing, 

inter alia, Fitzgerald v. Commonwealth, 223 Va. 615, 631, 292 

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S.E.2d 798, 807 (1982)). As Proctor points out in his brief, 

the jury was properly instructed on this point. 

 The jury heard testimony from several witnesses regarding 

the events leading up to the shooting. It heard testimony from 

Simmons, an eyewitness to the shooting, that Proctor repeatedly 

threatened to shoot Crystal if she did not give him a ride. It 

heard testimony that Proctor retrieved the gun, struggled with 

his mother over the shells and loaded the gun. Simmons also 

testified that Proctor pointed the gun at Crystal's head and 

counted to ten. Whether Proctor's voluntary intoxication rose 

to such a level that it negated his ability to premeditate the 

crime was a factual determination for the jury. The jury was 

entitled to consider the evidence and conclude that his 

intoxication did not rise to that level. As a matter of law 

this was a proper question for the jury, and its decision in 

this regard was not plainly wrong or without evidence to support 

it. 

D. Conviction under Code § 18.2-279 

 It is unlawful for any person to "maliciously discharge a 

firearm within any building when occupied by one or more persons 

in such a manner as to endanger the life or lives of such person 

or persons." Code § 18.2-279. The statute further states that 

"[i]n the event of the death of any person, resulting from such 

malicious shooting . . . the person so offending shall be guilty 

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of murder, the degree to be determined by the jury or the court 

trying the case without a jury." 

 At the close of the Commonwealth's case, Proctor made a 

motion to strike, arguing the Commonwealth could not 

simultaneously prosecute charges under Code § 18.2-279 and 

§ 18.2-32. Proctor asserted that the Commonwealth must elect 

which theory of murder (and consequently which statute) it 

wished to present to the jury. The trial court denied the 

motion. 

 Proctor raises two issues on appeal in support of his 

argument. First, he contends that Code § 19.2-294 mandated the 

Commonwealth elect which charge it would present to the jury. 

Code § 19.2-294 provides that "if the same act be a violation of 

two or more statutes . . . conviction under one of such statutes 

or ordinances shall be a bar to a prosecution or proceeding 

under the other or others." However, this argument was not made 

to the trial court and, thus, we will not consider it on appeal. 

Rule 5A:18; Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 

S.E.2d 484, 489 (1998) ("The Court of Appeals will not consider 

an argument on appeal which was not presented to the trial 

court."). 

 Secondly, Proctor argues that where a death occurs during 

the malicious discharge of a firearm in an occupied dwelling, 

Code § 18.2-279 only allows a murder conviction – not a 

conviction for malicious discharge and murder. 

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 He contends that the legislature's decision not to use the 

language "shall also be" instead of "shall be guilty of murder," 

in Code § 18.2-279 evidences an intent that a malicious 

discharge resulting in death is removed from Code § 18.2-279 by 

operation of law and thrust into Code § 18.2-32 —— the murder 

statute. As such, he argues, the trial court erred in 

submitting both charges to the jury. 

 "When the language of a statute is plain and unambiguous, 

we are bound by the plain meaning of that language. We must 

determine the intent of the General Assembly from the words 

contained in the statute, unless a literal construction of the 

statute would yield an absurd result." Shelor Motor Co. v. 

Miller, 261 Va. 473, 479, 544 S.E.2d 345, 348 (2001) (citations 

omitted). Indeed, when determining the boundaries of such a 

statute, "[t]he plain, obvious, and rational meaning of a 

statute is always preferred to any curious, narrow or strained 

construction . . . ." Branch v. Commonwealth, 14 Va. App. 836, 

839, 419 S.E.2d 422, 424 (1992). "Although penal laws are to be 

construed strictly [against the Commonwealth], they 'ought not 

to be construed so strictly as to defeat the obvious intention 

of the legislature.'" Willis v. Commonwealth, 10 Va. App. 430, 

441, 393 S.E.2d 405, 411 (1990) (quoting Huddleston v. United 

States, 415 U.S. 814, 831 (1974)). 

 Code § 18.2-279 makes clear that to be guilty of 

maliciously discharging a firearm, contemporaneous physical 

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occupation of the building is an essential element of the 

offense. See Johnson v. Commonwealth, 18 Va. App. 441, 447-48, 

444 S.E.2d 559, 563 (1994). When viewed in the light most 

favorable to the Commonwealth, the evidence at trial showed that 

Proctor fired a twelve-gauge shotgun in the living room of his 

home, killing his wife, Crystal, who was standing about five 

feet away. At the time Proctor discharged the weapon, Joseph 

Simmons was also in the house, indeed, "maybe only three or four 

feet" from the victim. Simmons testified that when Proctor 

fired the gun, he was knocked back onto the couch and could not 

hear. Proctor clearly endangered Simmons by discharge of the 

firearm within the building as the Commonwealth noted at trial.4 

To adopt Proctor's interpretation of the statute would allow him 

to evade its punitive consequences for endangering the other 

occupants of the house by the contemporaneous murder of one of 

them. Such a reading would be a narrow and strained 

construction that would defeat the obvious intention of the 

legislature. We will not adopt such a reading and, therefore, 

find no error in the conviction of Proctor under both Code 

§ 18.2-279 and Code § 18.2-32 under the facts of this case. 

 4

 The Commonwealth argued "there were other people in the 

house . . . it was occupied by other people, or at least one 

other person when this firearm was discharged." 

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E. Change of Venue 

 A trial court's decision whether to grant a motion for 

change of venue is reviewed for an abuse of discretion. 

Cressell v. Commonwealth, 32 Va. App. 744, 753, 531 S.E.2d 1, 5 

(2000) (citing Kasi v. Commonwealth, 256 Va. 407, 420, 508 

S.E.2d 57, 64 (1998)). 

 Arguing that the case had garnered a prejudicial amount of 

pretrial publicity, Proctor asked the trial court for a change 

of venue. In support of his motion Proctor presented numerous 

newspaper articles about the case, including the Commonwealth 

Attorney's regular newspaper column. Proctor submitted 

twenty-two affidavits from Westmoreland County citizens 

expressing their belief that it would be difficult for him to 

receive a fair trial in the county. The trial court denied the 

motion. 

 The Supreme Court of Virginia recently addressed the 

relevant factors for assessing the denial of a motion for a 

change of venue in Thomas v. Commonwealth, 263 Va. 216, 559 

S.E.2d 652 (2002). 

[T]here is a presumption that a defendant 

will receive a fair trial in the 

jurisdiction where the offense occurred and 

the defendant bears the burden of overcoming 

"this presumption by demonstrating that the 

feeling of prejudice on the part of the 

citizenry is widespread and is such that 

would 'be reasonably certain to prevent a 

fair trial.'" Mueller v. Commonwealth, 244 

Va. 386, 398, 422 S.E.2d 380, 388 (1992)). 

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Thomas, 263 Va. at 230, 559 S.E.2d at 659-60. The presumption 

is not overcome simply because there is widespread knowledge of 

the case as "[j]urors need not be ignorant of the crime." Id.

(citing Irvin v. Dowd, 366 U.S. 717, 722 (1961); Buchanan v. 

Commonwealth, 238 Va. 389, 406, 384 S.E.2d 757, 767 (1989)). 

 Along with the sheer volume of publicity, other factors are 

relevant in evaluating whether the defendant can obtain a fair 

trial. Id. Among these factors are the accuracy of the 

publicity, whether the publicity is temperate and 

non-inflammatory, and the timing of the publicity. Id. A 

"critical element" in determining whether widespread pretrial 

publicity has so prejudiced the community that the defendant 

cannot get a fair trial is the ease in seating an impartial 

jury. Id. at 231, 559 S.E.2d at 660 (citing Roach v. 

Commonwealth, 251 Va. 324, 242, 468 S.E.2d 98, 109 (1996)). As 

the Thomas Court stated: 

[I]t is the ease of seating the jury that is 

the relevant factor, not the ultimate result 

of that process. Never has this Court held 

the impartiality of the seated jury to be a 

factor in considering whether a motion for a 

change of venue should be granted, much less 

found it dispositive. 

Id. at 232, 559 S.E.2d at 661 (citations omitted). The "more 

difficult it is to seat a jury, the more likely it is that the 

public will believe the judicial process to be tainted by 

prejudice." Id. at 233, 559 S.E.2d at 661. 

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 Application of these factors to the case at bar 

demonstrates the trial court did not err in denying Proctor's 

motion. Proctor admits he did not contest the accuracy of the 

media reports, but he did contend some of the articles written 

by the Commonwealth's Attorney were intemperate and 

inflammatory. It appears the trial court did not make specific 

findings in this regard, though it noted that the Commonwealth's 

Attorney came "very close" to improperly expressing her opinion 

on factual matters in some instances. 

 Nonetheless, the trial court specifically noted the 

"relative ease" with which it empanelled a jury. It took five 

days for the trial court in Thomas to voir dire over 100 persons 

with seventy-three struck for cause. Thomas, 263 Va. at 229, 

559 S.E.2d at 659. By contrast, of twenty-seven jurors for voir

dire in the case at bar, only three were struck from the jury 

pool for cause related to pretrial publicity. 

 Given the trial court's specific finding of "the relative 

ease" with which a jury was seated in this case, the trial court 

clearly considered this "critical element." We therefore find 

the trial court did not abuse its discretion in denying 

Proctor's motion for a change of venue. 

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IV. CONCLUSION 

 For the reasons set forth above, we find no reversible 

error in the decisions of the trial court and affirm the 

defendant's convictions. 

Affirmed. 

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