Present: All the Justices 

PAUL WARNER POWELL 

 OPINION BY 

v. Record No. 031421 JUSTICE LAWRENCE L. KOONTZ, JR. 

January 16, 2004 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY 

Herman A. Whisenant, Jr., Judge 

In this appeal, we review the capital murder conviction and 

sentence of death imposed upon Paul Warner Powell for the murder 

of Stacey Lynn Reed in the commission of, or subsequent to, 

attempted rape. Code § 18.2-31(5). 

I. BACKGROUND 

A. Powell’s First Trial and Appeal

Powell was originally convicted of the capital murder of 

Stacey Lynn Reed in 2000 and sentenced to death. See Powell v. 

Commonwealth, 261 Va. 512, 530, 552 S.E.2d 344, 354 (2001). In 

the same trial, Powell was convicted of the abduction, rape, and 

attempted capital murder of Stacey’s younger sister, Kristie 

Erin Reed, and was sentenced to three terms of life imprisonment 

and fines totaling $200,000 for those crimes.1 Id.

 

1

 The abduction, rape, and attempted capital murder 

convictions, as well as a conviction for grand larceny, were 

affirmed in the prior appeal and are not at issue in this 

appeal. Powell had also been tried for robbery and attempted 

robbery, Code § 18.2-58, and three counts of use of a firearm, 

Code § 18.2-53.1. He was acquitted of those crimes. 
Upon review of the capital murder conviction and the death 

sentence imposed upon Powell, this Court reversed the conviction 

on various grounds including a finding that the indictment 

charging Powell with capital murder in the commission of robbery 

and/or attempted robbery had been improperly amended to include 

a charge of capital murder “during the commission of or 

subsequent to rape and/or attempted rape and/or sodomy and/or 

attempted sodomy.”2 Id. at 532, 552 S.E.2d at 355-56. Upon 

review of the record, we further held that the wording of the 

indictment limited the Commonwealth to proving that the 

“gradation crime was a rape occurring before or during the 

killing,” id. at 538-39, 535 S.E.2d at 359, and there was “no 

evidence upon which the jury could have found that Powell 

committed the rape of Kristie before or during the murder of 

Stacey.” Id. at 541, 535 S.E.2d at 361. 

We summarized the consequence of these holdings in the 

conclusion of the opinion, stating: 

there is simply no evidence upon which the jury could 

have relied to find that Powell committed or attempted 

to commit any sexual assault against Stacey before or 

during her murder, or that the rape of Kristie did not 

 

2

 Following the presentation of the Commonwealth’s case-inchief in Powell’s first trial, the Commonwealth had conceded 

that there was no evidence of forcible sodomy or attempted 

forcible sodomy against Kristie. Powell, 261 Va. at 525, 552 

S.E.2d at 351. Thus, that aspect of the amended indictment for 

capital murder from Powell’s first trial is not relevant to any 

issue raised in this appeal. 

2
occur after the murder of her sister. Accordingly, 

under the circumstances of this case, the evidence at 

best would have supported a conviction for first 

degree murder. 

For these reasons, we will reverse Powell’s 

conviction for capital murder . . . and remand the 

case for a new trial on a charge of no greater than 

first degree murder for the killing of Stacey Reed, if 

the Commonwealth be so advised. 

Id. at 545-46, 552 S.E.2d at 363. 

The mandate from this Court to the trial court tracked the 

language of the opinion, and directed that “the case is remanded 

. . . for a new trial on a charge of no greater than first 

degree murder for the killing of Stacey Reed, if the 

Commonwealth be so advised.” 

B. Events and Proceedings Following Remand

Powell’s Letter

On October 21, 2001, Powell wrote an obscenity-laced letter 

to the Commonwealth’s Attorney who had prosecuted Powell in his 

first trial.3 Powell stated in the letter that, because he 

believed he could not be retried for capital murder, “I figured 

I would tell you the rest of what happened on Jan. 29, 1999, to 

show you how stupid all y’all . . . are.” Admitting that he 

“planned to kill the whole family” on that day, Powell further 

stated that “I had other plans for [Stacey] before she died.” 

3
Powell described how he had attempted to initiate consensual 

sexual intercourse with Stacey, which he had previously 

admitted. Powell then revealed that when Stacey resisted his 

advances, he pushed her onto her bed and, while sitting on top 

of her, told Stacey “that we could do it the easy way or the 

hard way.” 

Powell then described how Stacey had “started fighting with 

me and clawed me [sic] face.” Powell stated that he “slammed 

her to the floor . . . sat on top of her and pinned her hands 

down again.” Powell claimed that Stacey relented “and I told 

her if she tried fighting with me again I would kill her.” 

Continuing, Powell stated that, at his direction, Stacey 

began to disrobe, but stopped when the telephone rang. Stacey 

put her clothes back on so that she could answer the telephone. 

Powell refused to allow Stacey to answer the telephone and 

ordered her to resume disrobing. When she refused, Powell 

“pushed her back and pulled out [his] knife.” When Stacey 

attempted to leave the bedroom, Powell stabbed her. Stacey fell 

back and Powell removed the knife. Stacey then stumbled to 

another bedroom and collapsed. Powell “saw that she was still 

 

3

 Powell had previously written to the Commonwealth’s 

Attorney on July 4, 2001, proposing a plea agreement for a first 

degree murder charge for the killing of Stacey Reed. 

4
breathing” and “started stomping on her throat” until he “didn’t 

see her breathing anymore.” 

The New Indictment

Armed with this new evidence, the Commonwealth elected to 

nolle prosequi the indictment in the remanded case, under which 

it was limited to trying Powell for first degree murder under 

our mandate, and sought a new indictment against Powell for 

capital murder. On December 3, 2001, the grand jury returned an 

indictment charging Powell with the capital murder of “Stacey 

Lynn Reed during the commission of or subsequent to the 

attempted rape of Stacey Lynn Reed.” 

C. Powell’s Second Trial

Motions to Dismiss the Indictment

On April 24, 2002, Powell filed a motion to dismiss the 

December 3, 2001 indictment. Powell asserted that “[w]hen the 

Supreme Court of Virginia issues an opinion concerning a case, 

this opinion becomes the law of the case” and, thus, the 

directive of the opinion and mandate from this Court in his 

first appeal limited his retrial to a charge no greater than 

first degree murder, regardless whether that trial was conducted 

under the original indictment or a new indictment. The 

Commonwealth filed a response to this motion, asserting that the 

judgment of this Court in Powell’s first appeal was not 

applicable to the December 3, 2001 indictment because Powell had 

5
“never [previously] been charged with the capital murder of 

Stacey Reed in the commission or attempted commission [of] 

sexual assault against [Stacey Reed] because, at the time of 

[Powell’s first] trial, no such evidence existed.” Accordingly, 

the Commonwealth contended that the December 3, 2001 indictment 

was “a new charge, one that has never been litigated in trial 

nor considered by the Virginia Supreme Court.” Following a 

hearing on this and other pre-trial matters, the trial court 

overruled Powell’s motion to dismiss the indictment in an order 

dated May 6, 2002. 

On May 17, 2002, Powell filed a second motion to dismiss 

the December 3, 2001 indictment. The briefs filed in the trial 

court in support of and in opposition to this motion parallel 

the arguments made on appeal with respect to this issue and, 

accordingly, we will only summarize the essential points of 

those arguments here. The import of Powell’s argument was that 

his prior trial and the reversal of his conviction by this Court 

acted as an “implied” or “judicial” acquittal of the attempted 

rape of Stacey, thus barring his retrial for her capital murder 

premised on that gradation offense. The Commonwealth responded 

that the issue whether Stacey had been the victim of a sexual 

assault was not before the jury in his first trial because the 

bill of particulars provided at Powell’s request indicated that 

only Kristie was the victim of the sexual assault gradation 

6
offenses charged in the amended indictment. Similarly, the 

Commonwealth contended that our comments concerning the 

insufficiency of the evidence to prove a sexual assault or 

attempted sexual assault against Stacey were not directed toward 

any finding of the jury, but to the contrary were indicative of 

the fact that the jury did not consider whether Stacey had been 

the victim of such an assault or attempt. 

On June 5, 2002, the trial court held a hearing on Powell’s 

second motion to dismiss the indictment. After hearing 

argument, the trial court stated that by identifying Kristie as 

the victim of the rape or attempted rape in the bill of 

particulars, the Commonwealth had clearly identified her as the 

victim of those gradation crimes in the amended indictment for 

capital murder. The trial court also agreed with the 

Commonwealth that this Court’s reference to the lack of evidence 

to prove any sexual assault or attempted sexual assault against 

Stacey was merely a comment on the record, and not an assertion 

that this was a theory of the case presented by the Commonwealth 

in Powell’s first trial. On July 3, 2002, the trial court 

entered an order overruling Powell’s second motion to dismiss 

the indictment. 

Other Pre-trial Motions

On April 25, 2002, Powell filed a motion to have Virginia’s 

statutory scheme for charging a capital crime and imposing a 

7
death sentence declared unconstitutional on various grounds. On 

appeal, Powell reasserts only some of these arguments and does 

so only in summary fashion. Accordingly, we will not summarize 

those arguments in detail here, but will address them within the 

discussion of the relevant assignment of error, infra. 

On April 26, 2002, Powell filed a motion seeking to have 

the Commonwealth’s Attorney’s office disqualified from 

prosecuting his case. Powell contended that the Commonwealth’s 

Attorney had a conflict of interest because he was a key “chain 

of custody witness” with respect to his receipt of Powell’s 

October 21, 2001 letter “confession” to the attempted rape of 

Stacey. Powell further contended that the offensive nature of 

that letter and his other conduct toward the Commonwealth’s 

Attorney had created such a level of animosity that the 

Commonwealth’s Attorney would not be able to objectively pursue 

justice, but would instead seek to satisfy a personal vendetta 

against Powell. Powell further contended that this taint of 

bias extended to every attorney in the Commonwealth’s Attorney’s 

office, and further asserted that these attorneys would be 

potential witnesses called to give testimony concerning the 

Commonwealth’s Attorney’s personal animus against Powell.4

 

4

 Powell further contended that one of the Assistant 

Commonwealth’s Attorneys while in private practice had 

represented Powell in an unrelated criminal matter and, thus, 

8
On May 1, 2002, the Commonwealth filed responses to 

Powell’s motions to have Virginia’s statutory scheme for 

charging a capital crime and imposing a death sentence declared 

unconstitutional and to disqualify the Commonwealth’s Attorney’s 

office. With respect to the former, the Commonwealth asserted 

that all the issues raised therein had previously been 

considered and rejected by this Court, and there was no cause 

for the trial court to revisit them. As to the latter, the 

Commonwealth asserted that there was no evidence of bias on the 

part of the Commonwealth’s Attorney or other members of his 

office and denied that there was any such bias, that the manner 

of establishing the chain of custody of Powell’s letter was not 

the defense’s concern, and that the questions of an appearance 

of impropriety should be raised through a disciplinary complaint 

proceeding. 

On May 6, 2002, in the same hearing in which the trial 

court heard argument of Powell’s first motion to dismiss the 

indictment, the trial court also heard argument on Powell’s 

motions to have Virginia’s statutory scheme for charging a 

capital crime and imposing a death sentence declared 

unconstitutional and to disqualify the Commonwealth’s Attorney’s 

 

had a conflict of interest. Powell does not reassert this issue 

on appeal. 

9
office from prosecuting the case. Following that hearing, the 

trial court entered an order overruling these motions without 

comment. 

On December 11, 2002, Powell filed a motion to exclude any 

evidence concerning his abduction, rape, and attempted murder of 

Kristie Reed from his trial. Powell contended that because he 

was charged only with the capital murder of Stacey Reed 

predicated on an attempted rape of her, evidence of his 

subsequent attack on Kristie was irrelevant or that any 

probative value it might have would be overborne by its unduly 

prejudicial effect on the jury. The Commonwealth did not file a 

response to this motion, but during oral argument in a hearing 

held December 23, 2002, the Commonwealth asserted that evidence 

concerning the attack on Kristie was part of a continuing 

criminal enterprise and was relevant to show Powell’s motive and 

intent in attempting the rape of Stacey. 

Also on December 11, 2002, Powell, alleging that the United 

States Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584 

(2002) had called into question prior judgments of this Court 

concerning the issue, filed a motion seeking to have Code 

§ 19.2-264.4(B) declared unconstitutional because it permits a 

jury to consider evidence relating to the future dangerousness 

and vileness aggravating factors without full protection of due 

process to the defendant to confront witnesses. Powell also 

10
asserted that the statutory definitions of the aggravating 

factors are vague and, thus, would likely result in “unreliable” 

jury verdicts. The Commonwealth filed a brief in response to 

this motion, asserting that the issue of the constitutionality 

of Code § 19.2-264.4(B) is settled law. 

On December 16, 2002, Powell filed a motion to suppress 

various statements he made to police during the initial 

investigation of the crimes. Powell alleged that after giving 

an initial statement following waiver of his Miranda rights, he 

advised police that he had nothing more to say. Thereafter, 

Powell contended, any statement he made to police without a 

readvisement and waiver of his Miranda rights should be 

suppressed. The Commonwealth responded that the suppression 

issue had been decided in Powell’s first trial and, thus, the 

doctrine of res judicata barred consideration of the issue in 

his second trial.5 Powell filed a supplemental motion on 

December 17, 2002 asserting that a statement taken by an 

investigator on November 2, 2001, while Powell was in prison 

following his first trial, should be suppressed because his 

counsel was not present. The Commonwealth responded that Powell 

had been advised of and waived his Miranda rights prior to 

 

5

 Powell did not contest the trial court’s failure to 

suppress his statements in the appeal of his first conviction. 

11
giving this statement and that he was not entitled to counsel 

under the Sixth Amendment at that time because he had not yet 

been indicted for the offense for which he was then on trial, 

and the formal proceedings on the prior indictments had 

concluded. 

In summarizing its rulings on these motions during the 

December 23, 2002 hearing, the trial court stated that it found 

Powell had waived his Miranda rights with respect to the 

statement made after his first trial but prior to the bringing 

of the second indictment and, thus, the statement was not barred 

by either the Fifth or Sixth Amendments. The trial court also 

indicated that it would deny the motion to suppress the 

statements from the initial investigation of the crimes, 

incorporating by reference the finding made during the first 

trial with respect to those statements. The trial court further 

found that evidence of Powell’s attack on Kristie was admissible 

as being part of a common scheme and to show consciousness of 

guilt. The trial court entered an omnibus order denying all 

these motions as well as the motion challenging the 

constitutionality of Code § 19.2-264.4(B). 

Jury Voir Dire

Powell’s second trial commenced on January 13, 2003. The 

trial court conducted voir dire of the venire in panels of five 

potential jurors. In questioning the first panel, the trial 

12
court inquired whether “any of you have acquired any information 

about the alleged offense, or of the accused from the news 

media, or other sources in this particular matter?” The five 

panel members indicated that they had not. The Commonwealth 

further inquired whether “[i]f during the course of trial you 

should hear something which would jog your memory about the 

publicity, would you be able to set that aside and render your 

verdict based solely on what you hear in the courtroom?” The 

five panel members each indicated that they could do so. 

During his voir dire of the first panel, Powell’s counsel 

attempted to ask the following question: 

 You’re going to hear in this case that the 

Defendant has already been tried and convicted of 

capital murder at one point, and he’s serving life 

sentences for other crimes. You’re also going to hear 

that the Supreme Court of Virginia overturned the −

At this point, the Commonwealth objected and during a bench 

conference, referencing Barker v. Commonwealth, 230 Va. 370, 

375, 337 S.E.2d 729, 733 (1985), asserted that, as the panel had 

already indicated that they had not heard of the case 

previously, Powell’s counsel’s question concerning the prior 

trial and appeal “may, in fact, taint” the members of the panel 

and disqualify them from serving on the jury. Powell’s counsel 

responded that because the evidence would disclose the fact of 

his prior convictions and the reversal of his capital murder 

conviction and death sentence on appeal, the prohibition of 

13
Barker did not apply. He further contended that because a 

jury’s knowledge of a prior conviction was potentially 

prejudicial to the defendant, it was a “tactical decision that 

we’ve made . . . and we wish this evidence to come forward.” 

Thus, he contended that it was proper to explore the potential 

jurors’ bias that would result from hearing that evidence. 

The trial court ruled, even though it agreed that this was 

a “unique case” because the evidence would establish the fact of 

the prior conviction and appellate reversal, “the Barker case is 

still good law.” Accordingly, the trial court concluded that 

“we have to start off with a jury that does not have” knowledge 

of the prior trial, conviction, and appeal. Accordingly, the 

trial court ruled that Powell could not question the jurors 

about their potential bias based upon such evidence being likely 

to be presented during the trial. 

The Commonwealth then inquired, “Are we going to strike 

this panel or will the Court instruct the panel to disregard the 

question?” When the trial court indicated that it would 

instruct the panel to disregard the question, Powell’s counsel 

objected that he was “not sure that instructing them is 

sufficient . . . if they’ve already been told −.” The trial 

court cut off the objection, stating that the members of the 

panel had already indicated they were unaware of the case and 

that “all I can do is tell them to disregard the question.” 

14
Guilt-Determination Phase

Apart from the new evidence of Powell’s October 21, 2001 

letter to the Commonwealth’s Attorney in which Powell confessed 

to the attempted rape of Stacey, the evidence presented during 

the guilt-determination phase of Powell’s second trial was not 

markedly different from that received during the first trial. 

Because we have thoroughly recounted that evidence in reviewing 

his first trial, see Powell, 261 Va. at 518-520, 552 S.E.2d at 

347-348, and Powell does not challenge the sufficiency of the 

evidence except with respect to proof of the attempted rape of 

Stacey, we need not reiterate the full extent of the evidence, 

but will suffice with a summary of the essential details. 

Powell, who was twenty years old at the time of the crimes, 

had been acquainted with Stacey and her family for approximately 

two-and-a-half years. Powell, a self-avowed racist and white 

supremacist, objected to Stacey dating Sean Wilkerson, a black 

classmate of Stacey’s. Id. at 518, 552 S.E.2d at 347. 

Stacey arrived home just before noon on January 29, 1999 to 

find Powell waiting for her. When Powell learned that Robert 

Culver, a friend of the girls’ mother, would be home shortly for 

lunch, Powell left, but returned at about 12:45 p.m., after 

Culver had left. When Powell returned, he was armed with a 

survival knife, a butterfly knife, a box cutter, and a 9-

millimeter pistol. Id.

15
During the initial investigation, Powell claimed that he 

and Stacey had argued about her relationship with Wilkerson and 

in an ensuing struggle, Powell drew the survival knife from his 

belt and Stacey “got stuck.” Id. Although Powell denied 

stabbing Stacey deliberately or otherwise injuring her, an 

autopsy revealed that she had suffered multiple blunt force 

injuries to her head, neck, and upper body not consistent with 

her merely having fallen during a struggle, but consistent with 

a deliberate stomping. The autopsy also showed that the wound 

to Stacey’s chest was consistent with the knife having been 

twisted and partially withdrawn and reinserted. Id. at 520, 552 

S.E.2d at 348. 

Powell denied having attempted to sexually assault Stacey, 

but when questioned again on that point would not give the 

investigator “a straight answer.” Powell later told police that 

he “probably” raped Kristie because he “didn’t get any with 

Stacey.” 

Leaving Stacey for dead, Powell smoked a cigarette and 

drank a glass of iced tea in the living room of the home, 

waiting for Kristie to return home from school. When she 

arrived, Powell met her at the door. Shortly thereafter, 

Kristie discovered her sister’s body. Powell then forced her to 

go to the basement of the home where he brutally raped her and 

16
attempted to kill her by strangulation and by cutting her wrists 

and throat. Id. at 519, 552 S.E.2d at 347. 

At the conclusion of the Commonwealth’s case-in-chief, 

Powell moved to strike the evidence on the ground that the 

Commonwealth had not presented sufficient evidence to 

corroborate Powell’s confession in the October 21, 2001 letter 

that he had attempted to rape Stacey. The Commonwealth pointed 

to the physical circumstances, such as the disheveled condition 

of Stacey’s bedroom, Stacey’s defensive wounds, and the fact 

that when her body was discovered her pants’ zipper was slightly 

undone, as corroborating Powell’s confession. The trial court 

denied the motion to strike. Thereafter, Powell elected not to 

offer any evidence. 

The jury was instructed, heard closing arguments, and 

retired to consider its verdict. After two hours of 

deliberation, the jury found Powell guilty of capital murder. 

Powell requested a poll of the jury, which confirmed that the 

verdict was unanimous. 

Penalty Determination Phase

During the penalty determination phase, the Commonwealth 

presented evidence of Powell’s criminal record, including three 

convictions for contributing to the delinquency of a minor, two 

larceny convictions, and his convictions for the abduction, 

rape, and attempted capital murder of Kristie. The Commonwealth 

17
further presented evidence concerning Powell’s extreme racist 

views. Additional evidence showed that Powell had tortured cats 

when he was younger and that he told an investigator that he 

wanted to purchase a gun to “[k]ill somebody. Kill a lot of 

somebodies. . . . Just for something to do.” Powell also told 

the investigator that he admired Charles Manson and Adolf 

Hitler, saying that “[t]hey were cool.” The Commonwealth also 

presented evidence that Powell wrote an abusive letter to 

Stacey’s mother in which he included a pornographic picture of a 

woman who resembled Stacey. 

Powell presented evidence from his parents and younger 

brother, a social worker, a psychologist, and a probation 

officer. This evidence dealt primarily with Powell’s upbringing 

and transfer of custody from his mother to the Department of 

Youth and Family Services following his juvenile offenses. The 

psychologist described Powell’s home environment as “toxic.” 

The psychologist further testified that, following his 

incarceration, Powell had received “[m]edication to help 

stabilize his mood,” and while medicated Powell “has not had any 

serious disciplinary infractions.” The psychologist did not 

offer a specific diagnosis for Powell’s “mental-health 

problems,” but testified that Powell’s clinical history 

suggested an “anti-social personality disorder” and that his 

behavior as a child suggested Powell had “an under controlled 

18
temperament.” The psychologist further testified that the 

medication Powell had received in the past was “used for manic 

depressive illness which is now called bi-polar disorder and for 

certain forms of serious depression.” 

After ninety minutes of deliberation, the jury returned a 

unanimous verdict sentencing Powell to death. The jury 

indicated that the sentence was predicated on both the future 

dangerousness and vileness aggravating factors. 

Sentencing

On May 8, 2003, the trial court held a sentencing hearing 

and received a pre-sentence report and victim impact evidence 

from Stacey’s mother. Powell’s counsel argued that imposition 

of the death sentence was not appropriate, asserting that so 

long as Powell were confined and properly medicated, he did not 

present a continuing danger to society and that a life sentence 

without possibility of parole was adequate punishment. The 

Commonwealth responded that Powell had shown no remorse 

following his conviction in the first trial. The trial court 

then confirmed the jury’s sentence of death. We consolidated 

the automatic review of Powell’s death sentence with his appeal 

of the capital murder conviction and expedited the appeal on our 

docket. Code § 17.1-313(F). 

19
II. DISCUSSION 

 Powell raises twelve assignments of error, the first two of 

which merely restate the elements of the statutory review of any 

death sentence mandated by Code § 17.1-313(C). We will review 

Powell’s arguments in the order in which the trial court 

considered the issues below. 

A. Failure to Dismiss the Capital Murder Indictment

In his sixth and seventh assignments of error, Powell 

contends that the trial court erred in denying his motions to 

dismiss the capital murder indictment against him. This was the 

principal issue addressed by the parties during oral argument 

before this Court. The various positions under which Powell 

asserts that he was not subject to trial under the capital 

murder indictment can be generally summarized as follows: 

(1) The opinion and mandate of this Court from 

Powell’s first trial limited his retrial for the 

killing of Stacey Reed to a charge no greater than 

first degree murder on any indictment. 

(2) Even if retrial on a charge of capital murder was 

not barred under a new indictment, Powell had been 

acquitted, either actually or by implication, of the 

attempted rape of Stacey Reed in his first trial and, 

thus, the law of the case doctrine barred his being 

tried for capital murder based upon the attempted rape 

of Stacey as the gradation offense. 

(3) Principles of double jeopardy bar his retrial for 

a violation of Code § 18.2-31(5) because the 

indictment in his first trial did not specify the 

victim of the gradation offense. 

20
Effect of Prior Opinion and Mandate

We recognize the principle of the “mandate rule,” stated by 

the Court of Appeals of Virginia in a different context, that: 

A trial judge is bound by a decision and mandate 

from [an appellate court], unless [the court] acted 

outside [its] jurisdiction. A trial court has no 

discretion to disregard [a] lawful mandate. When a 

case is remanded to a trial court from an appellate 

court, the refusal of the trial court to follow the 

appellate court mandate constitutes reversible error. 

Rowe v. Rowe, 33 Va. App. 250, 257-258, 532 S.E.2d 908, 912 

(2000); see also Frank Shop, Inc. v. Crown Central Petroleum 

Corp., 264 Va. 1, 6, 564 S.E.2d 134, 137 (2002) (holding that “a 

trial court cannot permit what this Court . . . [has] said is 

unlawful” in a mandate reversing the trial court’s prior 

judgment and remanding the case). 

Relying on this principle, Powell contends that the trial 

court was without authority to retry him on a new indictment 

charging him with the capital murder of Stacey Reed. Powell’s 

reliance, however, is misplaced. 

It is self-evident that while the opinion of an appellate 

court, under the doctrine of stare decisis, applies to all 

future cases in the trial courts, the mandate, which is the 

directive of the appellate court certifying a judgment in a 

particular case to the court from which it was appealed, speaks 

only to that case. Moreover, the mandate is controlling only 

“as to matters within its compass.” Sprague v. Ticonic National 

21
Bank, 307 U.S. 161, 168 (1939). Thus, while the directive of 

this Court’s mandate binds the circuit court, that court is not 

thereby prohibited from acting on matters not constrained by the 

language of the mandate, construed in light of the appellate 

court’s opinion. The mandate rule “is merely a ‘specific 

application of the law of the case doctrine,’ [and] in the 

absence of exceptional circumstances, it compels compliance on 

remand with the dictates of a superior court and forecloses 

relitigation of issues expressly or impliedly decided by the 

appellate court.” United States v. Bell, 5 F.3d 64, 66 (4th 

Cir. 1993) (quoting United States v. Bell, 988 F.2d 247, 251 

(1st Cir. 1993)). 

Undoubtedly, had the trial court permitted the Commonwealth 

to retry Powell for capital murder on the original amended 

indictment invalidated by our decision in reviewing his first 

conviction, this would have been violative of our mandate and 

reversible error. Similarly, had the Commonwealth dismissed 

that indictment and sought a new indictment charging Powell with 

the capital murder of Stacey Reed prior to the rape of Kristie 

Reed, it would have been error for the trial court to permit 

that indictment to stand. 

However, nothing in our opinion or mandate from Powell’s 

first appeal required the Commonwealth to retry Powell on the 

original indictment, abridged to cure the defects found by this 

22
Court to charge only first-degree murder. To the contrary, the 

directive of the mandate expressly stated that Powell was to be 

retried on that indictment based on the record that was before 

this Court at that time, only “if the Commonwealth be so 

advised.” 

Nor did our opinion or mandate expressly preclude the 

possibility of trying Powell on a new indictment charging 

capital murder premised on a different gradation offense after 

dismissal of the former, defective indictment. Powell’s October 

21, 2001 letter to the Commonwealth’s Attorney in which he 

revealed that he had attempted to rape Stacey before he killed 

her is an exceptional circumstance that merits a narrow 

application of the mandate rule. 

We recognize that, generally, serial prosecutions are not 

permitted where the Commonwealth deliberately refrains from 

bringing criminal charges arising out of the same act or 

transaction while prosecuting others in order to gain the 

advantage of having multiple trials. See, e.g., Ashe v. 

Swenson, 397 U.S. 436, 444 (1970). Such was not the case here, 

however, given the unexpected and possibly unique circumstance 

of evidence of an uncharged offense that was not previously 

known or available coming to light after the conclusion of the 

first trial in the form of the defendant’s voluntary confession. 

23
Accordingly, we hold that the trial court correctly ruled 

that the opinion and mandate of this Court from Powell’s prior 

appeal did not bar the Commonwealth from dismissing the 

indictment against him and bringing a new indictment charging 

him with capital murder premised upon a gradation offense not 

previously charged by the Commonwealth and based upon evidence 

that was not previously known or available to the Commonwealth 

at the time of his first trial. 

Acquittal under the “Law of the Case”

Powell contends that although he was not charged in a 

separate indictment with the attempted rape of Stacey in his 

first trial, the Commonwealth nonetheless presented evidence 

tending to show that he attempted to rape Stacey to bolster its 

claim that her murder was related to a sexual assault. To 

support this claim, Powell relies upon statements made by the 

Commonwealth’s Attorney during his first trial that the evidence 

would show that Powell “wanted something more from [Stacey] and 

she wasn’t going to give it to him and for that she lost her 

life.” Powell further notes that during his first trial the 

Commonwealth had argued against his motion to strike the 

evidence on capital murder by stating, in part, that “we have 

evidence . . . [that Powell] was having sex or attempting to 

have sex with [Stacey].” 

24
Powell contends that as neither the amended indictment for 

capital murder nor the instructions given to the jury specified 

the victim of the sexual assault gradation crimes, the 

Commonwealth intended for the jury in his first trial to 

consider the possibility that Powell attempted to rape Stacey. 

Powell notes that because the jury in his first trial sent a 

question to the trial court “seeking clarification whether the 

rape of Kristie could satisfy the gradation crime requirement 

for the capital murder of Stacey,” Powell, 261 Va. at 526, 552 

S.E.2d at 352, this indicated that the jury had considered and 

rejected the theory that he had attempted to rape Stacey. 

Relying on Green v. United States, 355 U.S. 184, 189-90 (1957), 

Powell asserts that because the jury in his first trial rejected 

that theory of the crime, it impliedly acquitted him of the 

gradation offense and, thus, he contends that the law of the 

case prohibits the Commonwealth from retrying that issue under a 

new indictment.6 Powell further points to statements in the 

opinion from his first appeal concerning the insufficiency of 

the evidence to prove an attempted sexual assault of Stacey as 

 

6

 On brief, Powell also used the term “res judicata” in 

describing the effect of his alleged “acquittal” of the 

attempted rape of Stacey. During oral argument of this appeal, 

he conceded that he was relying only on the “law of the case” 

doctrine in asserting the preclusive effect of his prior trial 

and appeal. 

25
confirming that he was charged with capital murder based on that 

gradation offense. 

The Commonwealth contends that by identifying Kristie as 

the victim of the rape or attempted rape in responding to 

Powell’s motion for a bill of particulars, it had clearly 

indicated that Powell was not charged or on trial for the 

capital murder of Stacey in the commission of the attempted rape 

of Stacey. Therefore, the Commonwealth asserts that Powell was 

never placed in jeopardy for the commission of that crime and, 

thus, cannot have been “acquitted” of that crime or of its 

gradation offense. 

Powell contends that “the bill of particulars is irrelevant 

to the issue of whether the [Supreme] Court previously decided 

that Powell was charged with capital murder in the commission of 

the attempted rape of Stacey Reed in his first trial.” Powell 

bases this contention on the statements in the opinion reversing 

his first conviction for capital murder that “[t]he record as a 

whole is devoid of any evidence that Powell attempted to rape 

. . . Stacey,” Powell, 261 Va. at 534, 552 S.E.2d at 357, and 

that “there is simply no evidence upon which the jury could have 

relied to find that Powell committed or attempted to commit any 

sexual assault against Stacey,” id. at 545, 552 S.E.2d at 363. 

Powell contends that by these statements we indicated that the 

26
question whether he had raped or attempted to rape Stacey had 

been at issue in his first trial. We disagree. 

The question, simply put, is whether the jury in Powell’s 

first trial considered whether Powell attempted to rape Stacey 

Reed and concluded that he did not. Our guide in resolving that 

question is Ashe, supra, wherein the United States Supreme Court 

held that an issue will be precluded from being retried in a 

subsequent criminal prosecution by the law of the case doctrine 

if, in light of the entire record, the previous jury necessarily 

decided that issue against the prosecution. But if “a rational 

jury could have grounded its verdict upon an issue other than 

that which the defendant seeks to foreclose from consideration,” 

the prior judgment will not be taken as deciding that particular 

issue. Ashe, 397 U.S. at 444. “The inquiry ‘must be set in a 

practical frame and viewed with an eye to all the circumstances 

of the proceedings.’ ” Id. (quoting Sealfon v. United States, 

332 U.S. 575, 579 (1948)). 

Powell’s view of the record of his first trial, and of this 

Court’s observation that the evidence therein was insufficient 

for the jury to have found that he attempted to rape Stacey, as 

showing that the previous jury necessarily decided that issue 

against the prosecution fails to take into account the effect of 

the bill of particulars. “It is true the bill of particulars is 

not for the purpose of charging the offense. The indictment 

27
must do that.” Livingston v. Commonwealth, 184 Va. 830, 837, 36 

S.E.2d 561, 565 (1946). “However, the bill of particulars and 

the indictment must be read together. The function of the bill 

of particulars is to supply additional information concerning an 

accusation.” Id. A bill of particulars not only informs the 

accused of the charges against him with sufficient precision to 

enable him to prepare his defense and avoid surprise, it also 

enables him to plead his acquittal or conviction in bar of any 

further prosecution for the same offense. See Wade v. 

Commonwealth, 9 Va. App. 359, 363, 388 S.E.2d 277, 279 (1990); 

see also United States v. Davidoff, 845 F.2d 1151, 1154 (2d Cir. 

1988). 

The bill of particulars in Powell’s first trial clearly 

limited the prosecution of the capital murder of Stacey under 

Code § 18.2-31(5) to proof of the rape or attempted rape of 

Kristie. Nevertheless, Powell asserts that the various 

statements of the Commonwealth during his first trial with 

respect to Powell’s effort to initiate consensual intercourse 

with Stacey, and his frustration at being rebuffed by her, 

suggested a motive for his subsequent attack on her sister and 

attempted to influence the jury into believing that Stacey was 

also the victim of an attempted sexual assault. The fact 

remains that Powell was not charged with having attempted to 

rape Stacey, either as a separate offense or as the gradation 

28
offense of the capital murder charge. Thus, it is not possible 

to conclude that the jury necessarily decided that issue against 

the prosecution. 

Powell is also mistaken in his interpretation of our 

statements regarding his first trial that the record contained 

insufficient evidence for the jury to have found that Powell 

attempted to rape Stacey. A careful reading of our opinion 

shows that these statements were not intended to convey that 

this issue was before the jury. To the contrary, these 

statements were observations made to clarify that the amended 

indictment must have been intended to charge Powell with the 

capital murder of Stacey premised upon the gradation offense of 

the rape of Kristie, but was insufficient to do so because of a 

drafting error.7

Powell also contends that even if the jury had not 

impliedly acquitted him of the capital murder of Stacey premised 

on the gradation offense of her rape or attempted rape, the 

effect of this Court’s decision in the appeal of his first 

conviction nonetheless was to expressly acquit him of that crime 

because we found the evidence in that trial insufficient to 

 

7

 We also held that the amendment of the indictment, even if 

properly drafted, would not have been permitted because the 

grand jury “was never called upon to consider [the rape of 

Kristie] as the gradation crime for the capital murder of 

Stacey.” Powell, 261 Va. at 534, 552 S.E.2d at 357. 

29
support a finding of rape or attempted rape of Stacey. Relying 

on Burks v. United States, 437 U.S. 1, 5-6 (1978), Powell 

asserts that, because we held that the evidence at his first 

trial at best would have supported a conviction for first degree 

murder, the trial court was bound by that determination in any 

subsequent retrial. Powell contends that Burks stands for the 

proposition that the determination of an appellate court that 

the trial court erred in permitting the jury to consider a 

charge not supported by the evidence acts as an acquittal on 

that charge and that a retrial for the same offense is barred by 

the prohibition against double jeopardy. 

Our conclusion that, lacking evidence of a sexual assault 

on Stacey or the attempt to commit one, Powell could be retried 

only for first degree murder was based upon “the circumstances 

of this case.” Powell, 261 Va. at 545-46, 552 S.E.2d at 363. 

Nothing in that statement implies that Powell had been acquitted 

of capital murder premised on any possible gradation offense, 

nor, as we have already demonstrated, did it preclude the 

Commonwealth from seeking to indict Powell for the capital 

murder of Stacey with the attempted rape of Stacey as the 

gradation offense under the exceptional circumstances occasioned 

by Powell’s voluntary confession. 

Accordingly, we hold that the trial court did not err in 

denying Powell’s motions to dismiss the indictment for capital 

30
murder on the ground that the Commonwealth was prohibited from 

proving Powell attempted to rape Stacey by the law of the case 

of his former trial and appeal. 

Double Jeopardy

Powell also contends that the trial court should have 

dismissed the indictment against him because his prosecution 

under that indictment violated the guarantee of the Fifth 

Amendment of the Constitution of the United States against being 

twice placed in jeopardy for the same offense. Specifically, he 

asserts that having been indicted once for a violation of Code 

§ 18.2-31(5) for the murder of Stacey Reed, his constitutional 

guarantee of protection against being placed in double jeopardy 

prohibited the Commonwealth from indicting him a second time for 

that murder under the same subsection of the capital murder 

statute. 

During oral argument of this appeal, Powell acknowledged 

that the Commonwealth may indict and convict an accused for 

multiple counts of capital murder of a single victim under 

different subsections of Code § 18.2-31 without violating the 

constitutional protection against double jeopardy. See Bailey 

v. Commonwealth, 259 Va. 723, 747, 529 S.E.2d 570, 584, cert.

denied, 531 U.S. 995 (2000) (a single indictment may charge two 

counts of capital murder of the same victim under Code 

§§ 18.2-31(7) and 18.2-31(12)). Moreover, we have held that 

31
where a particular subsection of Code § 18.2-31 lists multiple 

gradation offenses, the Commonwealth may indict the accused for 

separate offenses of capital murder of a single victim premised 

on each specific gradation offense. Payne v. Commonwealth, 257 

Va. 216, 228, 509 S.E.2d 293, 301 (1999) (indictments properly 

charged separate violations of Code § 18.2-31(5) premised on 

rape and object sexual penetration of the same victim). In 

Payne, we said that “it is clear, as well as logical, that the 

General Assembly intended for each statutory offense [in Code 

§ 18.2-31] to be punished separately ‘as a Class 1 felony.’ ” 

Id.

By statutory definition, capital murder is limited to the 

“willful, deliberate, and premeditated killing of any person” 

under specific circumstances or in the commission or attempted 

commission of certain crimes enumerated in Code § 18.2-31. We 

have frequently referred to these crimes as gradation offenses 

because, when committed as part of the same transaction as a 

murder, they elevate what would otherwise constitute murder of 

the first degree pursuant to Code § 18.2-32 to capital murder. 

Pertinent to the present case, Code § 18.2-31(5) specifies 

gradation offenses of “rape or attempted rape, forcible sodomy 

or attempted forcible sodomy or object sexual penetration.” In 

Payne, we concluded that the rape and object sexual penetration 

of the same victim are separate and distinct gradation offenses 

32
and, therefore, support two capital murder convictions 

consistent with double jeopardy protections. Id. While Payne

is instructive insofar as it establishes that separate and 

distinct gradation offenses are enumerated in Code § 18.2-31(5), 

it does not resolve Powell’s case. 

Powell’s contention that he was charged with the same crime 

rather than with two separate crimes under the amended 

indictment and the 2001 indictment is principally premised upon 

the fact that the former failed to identify the victim of the 

rape or attempted rape. Because the amended indictment in his 

first trial, while identifying Stacey as the victim of the 

murder, did not specify a victim of the gradation offenses of 

rape or attempted rape, Powell contends that proof of the 

identity of the victim was not an element of those offenses. 

Thus, he argues that he was placed in jeopardy regardless of 

whether Stacey or Kristie were proven to be the victim of the 

gradation offenses of rape or attempted rape, and the subsequent 

indictment that expressly identified Stacey as the victim of 

attempted rape violated his constitutional guarantee against 

double jeopardy. 

We agree with Powell that when an indictment does not 

specify the identity of the victim of a gradation offense to the 

crime of capital murder, the identity of the victim of the 

gradation offense is not an element of the crime. Powell, 

33
however, has again overlooked the significance of the bill of 

particulars provided by the Commonwealth in his first trial. As 

we have already explained, the Commonwealth expressly identified 

Kristie as the victim of the gradation offenses for the capital 

murder of Stacey under Code § 18.2-31(5). The bill of 

particulars was filed well in advance of the trial and before 

jeopardy had attached. See Commonwealth v. Washington, 263 Va. 

298, 307, 559 S.E.2d 636, 641 (2002) (“The right not to be 

subjected to double jeopardy attaches in a criminal case when 

the jury is impaneled and sworn”). 

During oral argument of this appeal, Powell contended that 

the bill of particulars only limits the Commonwealth’s ability 

to argue a specific theory of the crime, does not amend the 

indictment, and jeopardy attaches as to the indictment as worded 

regardless of whether a bill of particulars has been filed. We 

disagree. 

As noted above, while “[i]t is true the bill of particulars 

is not for the purpose of charging the offense . . . the bill of 

particulars and the indictment must be read together.” 

Livingston, 184 Va. at 837, 36 S.E.2d at 565. Thus, we hold 

that where, prior to the attachment of jeopardy, the 

Commonwealth limits the prosecution of a capital murder, 

undifferentiated in the indictment by the identity of the victim 

of the gradation offense, by naming a specific victim of the 

34
gradation offense in a bill of particulars, jeopardy will attach 

only to the capital murder charge as made specific by the bill 

of particulars. 

For these reasons, we further hold that the trial court did 

not err in refusing to dismiss the indictment for capital murder 

as violative of Powell’s double jeopardy protection. 

B. Constitutionality of Virginia’s Capital Murder Statutes

In his third and eleventh assignments of error, Powell 

attacks the trial court’s order overruling his motions to have 

the Virginia capital murder statutes declared unconstitutional. 

With respect to the motion filed April 25, 2002 and overruled by 

the trial court on May 6, 2002, Powell has restated, in summary 

fashion, five of his arguments advanced in the trial court, 

without citation to authority.8 The failure to adequately brief 

an assignment of error constitutes a waiver of the argument. 

See, e.g., Burns v. Commonwealth, 261 Va. 307, 318, 541 S.E.2d 

872, 880, cert. denied, 534 U.S. 1043 (2001) (assignments of 

 

8

 At trial, Powell further contended that the expedited 

review of death sentence cases required by Code § 17.1-313 

violated a defendant’s constitutional right to equal protection. 

Powell contended that by eliminating an intermediate review by 

the Court of Appeals, a defendant is denied the opportunity to 

perfect the issues and arguments he wishes to make on appeal. 

He further contended that expediting death sentence appeals on 

our docket “disadvantaged death-sentence defendants by providing 

them with substantially less time than other criminal defendants 

to protect their legal rights.” Powell does not reassert these 

issues on appeal. 

35
error not briefed are waived even where trial record contains 

written argument addressing same issue). 

Moreover, the arguments raised by Powell have been 

previously considered and rejected by this Court. The arguments 

raised by Powell and recent decisions rejecting those arguments 

are: 

That the statutes fail to provide meaningful guidance with 

respect to the vileness and future dangerousness aggravating 

factors and that the jury is not provided adequate guidance with 

respect to the application of aggravating and mitigating 

factors. Rejected in Morrisette v. Commonwealth, 264 Va. 386, 

397, 569 S.E.2d 47, 55 (2002), cert. denied, ___ U.S. ___, ___ 

S.Ct. ___, 72 U.S.L.W. 3392 (2003). 

That permitting evidence of unadjudicated criminal conduct 

to be used to establish the defendant’s future dangerousness 

fails to meet the “heightened reliability requirement” of the 

8th and 14th Amendments. Rejected in Bell v. Commonwealth, 264 

Va. 172, 203, 563 S.E.2d 695, 716 (2002), cert. denied, 537 U.S. 

1123 (2003). 

That the trial court is improperly vested with discretion 

whether to set aside the death sentence for good cause shown and 

is permitted to consider hearsay evidence in the pre-sentence 

report. Rejected in Lenz v. Commonwealth, 261 Va. 451, 459, 544 

S.E.2d 299, 303-04, cert. denied, 534 U.S. 1003 (2001). 

36
That the mandatory proportionality review procedures 

employed by this Court fail to meet constitutional standards. 

Rejected in Lovitt v. Commonwealth, 260 Va. 497, 509, 537 S.E.2d 

866, 874 (2000), cert. denied, 534 U.S. 815 (2001); Bailey, 259 

Va. at 740-42, 529 S.E.2d at 580-81, cert. denied, 531 U.S. 995 

(2000). 

With respect to the December 11, 2002 motion, overruled by 

the trial court on December 23, 2002, Powell asserts, as he did 

in the trial court, that the United States Supreme Court’s 

decision in Ring v. Arizona, 536 U.S. 584 (2002), requires that 

“many of the procedural safeguards that heretofore have only 

been required during the guilt/innocence phase of trial must now 

be extended to the sentencing phase.” Powell reasons that 

because Ring held that it was impermissible in a jury trial to 

allow the trial judge to determine whether there were 

aggravating factors sufficient to warrant the imposition of the 

death penalty, id. at 609, the aggravating factors required to 

be found by Code § 19.2-264.4(B) before a sentence of death may 

be imposed are “to be treated as elements of the offense of a 

death-eligible capital murder.” Powell contends that the 

standards of proof and rules of evidence applicable to the 

determination of guilt must also be applied to the determination 

of sentence, and that, contrary to decisions of this Court made 

prior to Ring, this precludes the Commonwealth from presenting 

37
under a “relaxed evidentiary standard” evidence of unadjudicated 

criminal conduct or hearsay evidence when the declarant is not 

available for cross-examination as required by the confrontation 

clause. 

The Commonwealth responds that Ring does not alter the 

analysis of the constitutionality of the procedures applied 

during the penalty determination phase of a capital murder trial 

in Virginia. Rather, the Commonwealth contends that the 

procedures for the admission of relevant evidence during the 

penalty determination phase under Code § 19.2-264.4(B) continue 

to be fully in accord with the Sixth Amendment due process 

concerns underpinning the decision in Ring. We agree with the 

Commonwealth. 

First, we note that Powell’s expansive reading of Ring is 

unwarranted for the obvious reason that the statutory scheme at 

issue in that case, which permitted the judge in a capital 

murder jury trial to assume the role of the jury in determining 

whether aggravating factors permitting the imposition of the 

death penalty were present, is markedly different from that of 

Virginia’s death penalty sentencing statute. See Ring, 536 U.S. 

at 588. Moreover, nothing in the United States Supreme Court’s 

opinion in Ring suggests that the Court intended to revisit 

broader issues of due process protections afforded in the 

penalty determination phase of all capital murder trials. 

38
We further reject Powell’s contention that there is a 

“relaxed evidentiary standard” applicable to the penalty 

determination phase of a capital murder trial in Virginia. To 

the contrary, Code § 19.2-264.4(B) expressly provides, and we 

have consistently held, that the Commonwealth must prove the 

existence of one or both aggravating factors beyond a reasonable 

doubt. See, e.g., Clark v. Commonwealth, 220 Va. 201, 212, 257 

S.E.2d 784, 791 (1979), cert. denied, 444 U.S. 1049 (1980). 

Powell’s contention that the introduction of evidence of 

unadjudicated criminal acts is not admissible because Ring

somehow refines the need for “heightened reliability” in capital 

sentencing is, as the Commonwealth notes, nothing more than a 

reassertion of the same argument raised in his prior motion and 

consistently rejected by this Court. Jackson, Jerry v. 

Commonwealth, 267 Va. 178, 189, ___ S.E.2d ___, ___ (2004) 

(today decided). Powell’s assertion that Code § 19.2-264.4(B) 

permits the introduction of hearsay evidence not otherwise 

subject to an exception is simply wrong.9 See, e.g., Lovitt v. 

 

9

 On brief, the Commonwealth suggests that Powell has 

confused the evidentiary standard applicable to the penalty 

determination phase with that applicable to the trial court’s 

consideration of the presentence report. Powell did not respond 

to this assertion in his reply brief and does not otherwise 

assert that Ring has any implication to the post-verdict 

sentencing procedure. Accordingly, we express no opinion on 

that issue. 

39
Warden, 266 Va. 216, 259, 585 S.E.2d 801, 826 (2003); Jackson, 

267 Va. at ___, ___ S.E.2d at ___. For these reasons, we hold 

that the trial court did not err in overruling Powell’s motion 

to have the Virginia capital murder statutes declared 

unconstitutional. 

C. Failure to Disqualify the Commonwealth’s Attorney

In his tenth assignment of error, Powell contends that the 

trial court erred in failing to grant his motion to disqualify 

the Commonwealth’s Attorney and his office from prosecuting 

Powell on the new indictment. Powell asserts the “grossly 

offensive personal attacks” on the Commonwealth’s Attorney in 

Powell’s October 21, 2001 letter, created a direct conflict of 

interest because the Commonwealth’s Attorney “had a personal 

stake in the outcome of this case.” This is so, Powell 

contends, because the personal attacks in his letter 

“undoubtedly led [the Commonwealth’s Attorney] to have feelings 

of animosity towards Powell.” The Commonwealth responds that 

the Commonwealth’s Attorney represented to the trial court that 

he could impartially prosecute the case and that it was a matter 

within the trial court’s discretion to determine whether to 

disqualify him. We agree with the Commonwealth. 

The due process rights of a criminal defendant under both 

the Virginia and United States Constitutions are violated when a 

Commonwealth’s Attorney who has a conflict of interest relevant 

40
to the defendant’s case prosecutes the defendant. See Cantrell 

v. Commonwealth, 229 Va. 387, 394, 329 S.E.2d 22, 26-27 (1985); 

Ganger v. Peyton, 379 F.2d 709, 714 (4th Cir. 1967). However, 

the question whether there is a conflict of interest is 

dependent upon the circumstances of the individual case, and the 

burden is on the party seeking disqualification of the 

prosecutor to present evidence establishing the existence of 

disqualifying bias or prejudice. The determination whether the 

evidence supports a finding of a conflict of interest is a 

matter committed to the sound discretion of the trial court. 

See Lux v. Commonwealth, 24 Va. App. 561, 569, 484 S.E.2d 145, 

149 (1997). 

The issue may arise where the prosecutor has had an 

attorney-client relationship with the parties involved whereby 

he obtained privileged information that may be adverse to the 

defendant’s interest in regard to the pending criminal charges. 

See, e.g., Commonwealth v. Kilgore, 15 Va. App. 684, 694, 426 

S.E.2d 837, 842 (1993). A second situation is where the 

prosecutor has some direct personal interest arising from a 

financial interest, kinship, or close friendship such that his 

objectivity and impartiality are called into question. See, 

e.g., Cantrell, 229 Va. at 391-94, 329 S.E.2d at 24-27. Neither 

of these circumstances applies to the present case. 

41
Beyond these categories of clear and direct conflicts of 

interest and ethical bars to a particular attorney prosecuting a 

particular defendant, there is the broader consideration of 

whether, on the facts of a particular case, the adversarial 

nature of the judicial process has resulted in such enmity 

toward the defendant on the part of the prosecutor that it will 

overbear his professional judgment in seeking fairly and 

impartially to see justice done. See Lux, 24 Va. App. at 569, 

484 S.E.2d at 149. As the United States Supreme Court has 

observed in a related context, “ ‘[i]mpartiality is not 

gullibility. Disinterestedness does not mean child-like 

innocence.’ ” Liteky v. United States, 510 U.S. 540, 551 (1994) 

(quoting In re J. P. Linahan, Inc., 138 F.2d 650, 654 (2nd Cir. 

1943). We are of opinion that the same can be said of the 

prosecutor’s role. 

The adversarial nature of criminal prosecutions 

unsurprisingly tends to engender some level of friction between 

the prosecutor and the defendant in difficult cases, especially 

where, as here, the defendant seems intent on showing his 

contempt and disrespect for the prosecutor. However, merely 

demonstrating a history of one-sided acrimony between the 

defendant and the prosecutor is insufficient to establish a 

conflict of interest or prosecutorial misconduct with respect to 

an otherwise proper prosecution. See, e.g., Phelps v. Hamilton, 

42
59 F.3d 1058, 1067 (10th Cir. 1995). If such were not the case, 

a defendant would have an incentive to deliberately incite such 

enmity. The evidence must reflect that the prosecutor is acting 

not within the dictates of the law, but has strayed outside 

those parameters in furtherance of a personal animus against the 

defendant. 

Powell’s October 21, 2001 letter undoubtedly was intended 

to insult, if not incense, the Commonwealth’s Attorney. But, 

the trial court was within its discretion to accept the 

Commonwealth’s Attorney’s assurance that it had not had an 

effect on his professional judgment in seeking fairly and 

impartially to see justice done. Moreover, nothing in the 

Commonwealth’s Attorney’s conduct of the trial evinces any lack 

of such professional judgment on his part. Accordingly, we hold 

that the trial court did not abuse its discretion in overruling 

Powell’s motion to disqualify the Commonwealth’s Attorney. 

D. Failure to Exclude Testimony of Kristie Reed

In his ninth assignment of error, Powell contends that the 

trial court erred in permitting the Commonwealth to call Kristie 

as a witness and to give testimony concerning Powell’s rape and 

attempted murder of her during the guilt determination phase of 

43
his trial.10 He asserts that evidence of the events following 

the murder of Stacey was not relevant to prove his culpability 

for that crime and that such evidence was, in any case, unduly 

prejudicial.11

The Commonwealth responds that evidence of the rape and 

attempted murder of Kristie, including her testimony and its 

supporting exhibits, was admissible because those acts were 

interrelated parts of a common criminal plan and, thus, were 

relevant to prove Powell’s identity, motive, and intent as the 

perpetrator of all the crimes committed in the course of 

carrying out that plan. In addition, the Commonwealth contends 

that evidence of the subsequent attack on Kristie was probative 

of Powell’s state of mind during the entire criminal enterprise 

and, thus, admissible to show premeditation in the killing of 

Stacey to rebut Powell’s claim that the killing was accidental. 

We agree with the Commonwealth. 

 

10 In his pre-trial motion, Powell sought to exclude all 

evidence of his rape and attempted murder of Kristie. On 

appeal, he has limited his argument to the exclusion of her 

testimony and the exhibits introduced in its course. 

11 Powell also asserts that Kristie’s testimony was 

unnecessary because it was cumulative of other evidence and 

should more properly have been received as “victim impact 

testimony” during sentencing. These arguments were not made at 

trial and, thus, are barred from consideration in this appeal. 

Rule 5:25. 

44
Generally, evidence of other offenses is inadmissible in a 

criminal prosecution, but it is a well-established exception 

that such evidence is admissible to show a common criminal 

scheme when the various acts are naturally explained as the 

constituent parts of the defendant’s general plan. See Satcher 

v. Commonwealth, 244 Va. 220, 230, 421 S.E.2d 821, 828 (1992), 

cert. denied, 507 U.S. 933 (1993); Kirkpatrick v. Commonwealth, 

211 Va. 269, 272, 176 S.E.2d 802, 805 (1970); McWhorter v. 

Commonwealth, 191 Va. 857, 870-71, 63 S.E.2d 20, 26 (1951). In 

Kirkpatrick we explained that: 

[e]vidence of other offenses is admitted if it shows 

the conduct and feeling of the accused toward his 

victim . . . or if it tends to prove any relevant 

element of the offense charged. Such evidence is 

permissible in cases where the motive, intent or 

knowledge of the accused is involved, or where the 

evidence is connected with . . . the offense for which 

the accused is on trial. 

211 Va. at 272, 176 S.E.2d at 805; see also Satcher, 244 Va. at 

230, 421 S.E.2d at 828. 

There can be no question that it was the Commonwealth’s 

theory in this trial, and taking the evidence in the light 

favorable to the Commonwealth it is an unassailable fact, that 

Powell went to the Reed home with the intention of raping and 

killing both Stacey and Kristie. As such, the evidence of 

Powell’s rape and attempted murder of Kristie was directly 

probative of his motive and intent in the attempted rape and 

45
murder of Stacey. Moreover, Kristie’s eyewitness testimony 

placing Powell in the home when she arrived and identifying him 

as her assailant was critical to establishing Powell’s identity 

as the perpetrator of the crimes that preceded the criminal acts 

committed against her. 

Powell’s contention that the graphic and emotional 

testimony of the victim of a brutal rape and attempted murder 

should have been excluded because its probative value was 

outweighed by the prejudice it would cause in the minds of the 

jury is equally without merit. All evidence tending to prove 

guilt is prejudicial to an accused, but the mere fact that such 

evidence is powerful because it accurately depicts the gravity 

and atrociousness of the crime or the callous nature of the 

defendant does not thereby render it inadmissible. Moreover, 

direct evidence, such as eyewitness testimony, is rarely subject 

to exclusion on the ground that it would be unduly prejudicial. 

In any case, determination of the issue is committed to the 

sound discretion of the trial court. Spencer v. Commonwealth, 

240 Va. 78, 90, 393 S.E.2d 609, 617, cert. denied, 498 U.S. 908, 

(1990). Accordingly, we hold that the trial court did not err 

in failing to grant Powell’s pre-trial motion to exclude the 

testimony of Kristie Reed from the guilt determination phase of 

the trial. 

46
E. Failure to Suppress Powell’s Statements to Police

In his twelfth assignment of error, Powell contends that 

“[t]he trial court erred in not suppressing Powell’s statements 

to police.” Although he uses the plural term “statements” in 

the assignment of error and makes references to the ability of 

an accused to revoke a prior waiver of his right to remain 

silent, Powell does not expressly restate the contention made in 

the trial court that statements made during the initial 

investigation prior to his first trial should have been 

suppressed because at the conclusion of his first interview he 

stated that he had nothing more to say. Because Powell has not 

expressly raised this issue on brief or during oral argument, it 

has been waived and we will not address it. Burns, 261 Va. at 

318, 541 S.E.2d at 880. 

Powell does assert that the trial court erred in not 

suppressing the statement concerning Powell’s October 21, 2001 

letter that he made on November 2, 2001 while in prison to an 

investigator. Powell contends that because he was still 

represented by counsel from his first trial, the investigator 

should not have questioned him without his counsel being 

present. 

The Commonwealth responds that the Sixth Amendment right to 

counsel had not attached with respect to the crime for which the 

investigator was gathering evidence and for which Powell would 

47
be indicted as a result of the evidence in his October 21, 2001 

letter. Moreover, as Powell executed a waiver of his Fifth 

Amendment rights immediately prior to giving the November 2, 

2001 statement, the Commonwealth contends that the statement was 

properly admitted. We agree with the Commonwealth. 

The Sixth Amendment right to counsel “arises from the fact 

that the suspect has been formally charged with a particular 

crime and thus is facing a state apparatus that has been geared 

up to prosecute him.” Arizona v. Roberson, 486 U.S. 675, 685 

(1988); see also Alston v. Commonwealth, 264 Va. 433, 437, 570 

S.E.2d 801, 803 (2002). We have already determined that the 

crime for which Powell was tried and convicted in the present 

case was a separate offense from those for which he had been 

previously convicted. Powell had not been formally charged with 

that offense when he was interviewed on November 2, 2001 and, 

thus, he was not entitled to have his counsel from his prior 

trial present during that interview. Eaton v. Commonwealth, 240 

Va. 236, 252, 397 S.E.2d 385, 394 (1990), cert. denied, 502 U.S. 

824 (1991). As Powell does not dispute that he freely and 

knowingly waived his Fifth Amendment right to counsel at the 

time of the interview, we hold that the trial court did not err 

in failing to suppress Powell’s statement. 

48
F. Limiting Voir Dire and Failure to Strike Jury Panel

In his fourth assignment of error, Powell contends that the 

trial court erred in not permitting him to question prospective 

jurors about whether knowledge of Powell’s prior conviction for 

capital murder and its subsequent reversal on appeal would 

influence their opinion as to his guilt. Powell concedes that a 

prospective juror with knowledge of a defendant’s prior 

conviction is subject to disqualification on that ground. 

Barker, 230 Va. at 375, 337 S.E.2d at 733. But see Patton v. 

Yount, 467 U.S. 1025, 1035 (1984) (refusing to grant a new trial 

where several jurors had pretrial knowledge of the defendant’s 

prior conviction for the same crime). Powell contends, however, 

that in his case the jury would ultimately learn of his prior 

conviction during the trial and, thus, asserts that he should 

have been able to question jurors on the effect this evidence 

would have on them. 

The purpose of voir dire is “to ascertain whether [a 

prospective juror] is related to either party, or has any 

interest in the cause, or has expressed or formed any opinion, 

or is sensible of any bias or prejudice therein.” Code § 8.01-

358. To that end, prospective jurors may be asked any question 

relevant to determine whether they may be subject to being 

removed from the venire for cause. 

49
The test of relevancy is whether the questions relate 

to any of the four criteria set forth in the statute. 

If an answer to the question would necessarily 

disclose, or clearly lead to the disclosure of the 

statutory factors of relationship, interest, opinion, 

or prejudice, it must be permitted. 

LeVasseur v. Commonwealth, 225 Va. 564, 581, 304 S.E.2d 644, 653 

(1983), cert. denied, 464 U.S. 1063 (1984) 

The question that Powell attempted to ask the first panel 

of the venire was not one that “would necessarily disclose, or 

clearly lead to the disclosure of the statutory factors of 

relationship, interest, opinion, or prejudice” of the 

prospective jurors. The panel had already indicated that they 

had no prior knowledge of the case and had not formed an opinion 

as to Powell’s guilt or innocence. Powell’s question would not 

have revealed any preexisting opinion or bias with respect to 

his case, but would instead have served to test the jurors’ 

potential response to the evidence that he expected the 

Commonwealth to present. 

Whether to permit a party to ask a question that goes 

beyond what is permissible under Code § 8.01-358 is a matter 

entirely within the trial court’s discretion. Id. We hold that 

the trial court did not err in refusing to permit Powell to test 

the potential response of the jurors to the evidence that would 

be adduced at trial concerning his prior conviction. 

50
In his eighth assignment of error, Powell contends that, 

having denied him the opportunity to question the potential 

jurors on this point, the trial court should have disqualified 

for cause the five members of the first panel because his 

attempt to question them provided them with knowledge that he 

had been previously convicted for the capital murder of Stacey 

Reed. Thus, he contends that these jurors were subject to 

automatic exclusion under Barker. 

Even if we were to agree that Powell’s curtailed question 

provided the five prospective jurors with sufficient information 

to raise the concern for potential prejudice that the jurors’ 

full knowledge of the defendant’s prior conviction raised in 

Barker, that circumstance arose here through Powell’s own 

conduct during the voir dire. The record demonstrates that 

Powell’s counsel was fully aware that advising the prospective 

jurors that Powell had been previously convicted of capital 

murder carried with it the potential for creating bias against 

his client, but apparently deemed this risk acceptable in order 

to seek the strategic advantage of being able to test the 

jurors’ potential response to the evidence concerning that 

conviction during the trial. Counsel further recognized the 

risk that the trial court would not permit him to pursue that 

line of questioning, and, as we have just determined, was within 

its discretion to do so. 

51
Under the “invited error” doctrine Powell may not benefit 

from his counsel’s voluntary, strategic choice to place Powell 

at a potential disadvantage in the hope, unproductive though it 

was, of gaining some advantage. See, e.g., Moore v. Hinkle, 259 

Va. 479, 491, 527 S.E.2d 419, 426 (2000); Saunders v. 

Commonwealth, 211 Va. 399, 400, 177 S.E.2d 637, 638 (1970); 

Clark v. Commonwealth, 202 Va. 787, 791, 120 S.E.2d 270, 273 

(1961). “No litigant, even a defendant in a criminal case, will 

be permitted to approbate and reprobate – to invite error . . . 

and then to take advantage of the situation created by his own 

wrong.” Fisher v. Commonwealth, 236 Va. 403, 417, 374 S.E.2d 

46, 54 (1988), cert. denied, 490 U.S. 1028 (1989). Accordingly, 

we hold that the trial court did not err in refusing to strike 

the members of the first voir dire panel for cause under the 

particular circumstances created by Powell in this case. 

G. Failure to Strike the Evidence

In his fifth assignment of error, Powell contends that the 

trial court erred in failing to strike the evidence as to 

capital murder on the ground that the Commonwealth had not 

adequately corroborated his confession in the October 21, 2001 

letter of having attempted to rape Stacey. Thus, Powell 

contends that the evidence at best would have supported a 

conviction for first degree murder. We disagree. 

52
Although the Commonwealth may not establish an essential 

element of a crime by the uncorroborated confession of the 

accused alone, “‘only slight corroborative evidence’” is 

necessary to show the veracity of the confession. Williams v. 

Commonwealth, 234 Va. 168, 175, 360 S.E.2d 361, 366 (1987) 

(quoting Clozza v. Commonwealth, 228 Va. 124, 133, 321 S.E.2d 

273, 279 (1984), cert. denied, 469 U.S. 1230 (1985)), cert.

denied, 484 U.S. 1020 (1988). What is more, if “[t]his 

corroborating evidence is consistent with a reasonable 

inference” that the accused committed the crime to which he has 

confessed, the Commonwealth need not establish through direct 

evidence those elements of the crime that are proven by the 

confession. See Jackson v. Commonwealth, 255 Va. 625, 646, 499 

S.E.2d 538, 551 (1998), cert. denied, 525 U.S. 1067 (1999). 

Contrary to Powell’s contention that there is not even 

“slight” corroborative evidence to support the reliability of 

his confession, the forensic evidence and direct testimony are 

consistent with and substantiate Powell’s version of “the rest 

of what happened” in every relevant respect. Powell’s going to 

the home armed when he knew Stacey would be there alone, 

Stacey’s defensive wounds, the evidence that her pants’ zipper 

was slightly undone, the subsequent rape of Kristie, and 

Powell’s later concession that he raped Kristie because he 

“didn’t get any with Stacey” all corroborate his confession to 

53
the attempted rape of Stacey in the October 21, 2001 letter. 

Accordingly, we hold that the trial court did not err in 

overruling Powell’s motion to strike the evidence as to capital 

murder premised on the attempted rape of Stacey. 

H. Mandatory Sentence Review

In his first and second assignments of error, Powell 

contends that the jury imposed the sentence of death under the 

influence of passion, prejudice, or some other arbitrary factor 

and that the sentence of death is disproportionate to the 

penalty imposed in other cases considering both the crime and 

the defendant. As noted above, these two assignments of error 

parallel the mandatory review of every death sentence this Court 

conducts pursuant to Code § 17.1-313(C). Accordingly, we will 

combine the mandatory review of Powell’s death sentence with our 

discussion of the issues raised by Powell in his assignments of 

error. 

Powell contends that “[t]he sensational nature of [Kristie 

Reed’s] testimony virtually assured [Powell] would receive a 

sentence of death.” This is so, he asserts, because “the 

graphic and irrelevant evidence about the attack on Kristie” 

would have enraged the jury and rendered it unable to reach an 

impartial verdict. 

We have already determined that evidence of the rape and 

attempted murder of Kristie was relevant and admissible during 

54
the guilt determination phase of the trial. Similarly, Powell’s 

rape and attempted murder of Kristie was relevant for the jury’s 

consideration of his future dangerousness during the penalty 

determination phase of the trial. Accordingly, Powell’s 

assertion that the jury was influenced by “irrelevant” evidence 

is without merit. However, while graphic evidence of a violent 

crime is admissible in the guilt determination phase of a 

capital murder trial, we will also consider the potential impact 

such evidence may have had on the jury’s decision to impose the 

death sentence during the penalty determination phase. 

The brutal rape and attempted murder of a thirteen-year-old 

child are undoubtedly among the most abhorrent crimes that can 

be placed in evidence before a jury contemplating whether to 

impose a sentence of death upon a defendant. Nonetheless, the 

mere fact that the jury is presented with such evidence does not 

raise a presumption that the jury will be unable to set aside 

its natural emotions and fairly consider all the evidence. See

Bailey, 259 Va. at 751, 529 S.E.2d at 586 (evidence of 

infanticide and uxoricide, though abhorrent crimes, did not 

preclude jury from making a rational sentencing determination in 

a capital murder trial). 

Powell further contends that the trial court erred in 

submitting to the jury a verdict form that permitted it to 

impose a sentence of life imprisonment and a fine but which did 

55
not expressly parallel the trial court’s sentencing instructions 

by stating that this form was to be used if the jury found that 

neither aggravating factor had been proven beyond a reasonable 

doubt. He asserts that this alleged error requires that this 

Court set aside the death sentence. Powell concedes that he did 

not raise this issue at trial, but nonetheless contends that it 

is proper for this Court to consider his argument as part of the 

mandatory review of his sentence, apparently contending that an 

erroneous verdict form would constitute an “arbitrary factor” 

that would influence the jury’s sentencing decision. 

Our review of the record in this case does not disclose 

that the jury failed to give fair consideration to all the 

evidence both in favor and in mitigation of the death sentence. 

Moreover, the jury was properly instructed upon the sentences 

available and the basis for imposing them and the record 

supports the jury’s determination to impose a sentence of death 

upon a finding that both aggravating factors were proven beyond 

a reasonable doubt. We find nothing to suggest that the jury, 

or the trial court in reviewing the verdict, imposed the death 

sentence under the influence of passion, prejudice, or other 

arbitrary factors. Accordingly, we hold that the sentence of 

death was not imposed under passion, prejudice, or any arbitrary 

factor. 

56
In a separate section of his brief, ostensibly related to 

the assignment of error paralleling the passion, prejudice and 

arbitrary factor aspect of our mandatory review, Powell asserts 

that the alleged error in the wording of the life sentence 

verdict form should result in the reversal of his death sentence 

and a remand for a new sentencing proceeding. While we consider 

the entire record of a capital murder trial to determine whether 

the sentence of death should be set aside because of improper 

influence on the jury, we have previously rejected the 

contention that the “arbitrary factor” language of Code § 17.1-

313(C)(1) permits a defendant to raise as a separate issue on 

appeal an issue barred by the failure to make a proper objection 

in the trial court by contending that the error influenced the 

jury’s sentencing decision. See Quintana v. Commonwealth, 224 

Va. 127, 148 n.6, 152 n.7, 295 S.E.2d 643, 653 n.6, 656 n.7 

(1982) (rejecting assertion in dissenting opinion that mandatory 

review permitted challenge to form of jury verdict to be raised 

for the first time on appeal). Accordingly, while Powell is not 

precluded from arguing that the alleged error in the life 

sentence verdict form improperly influenced the jury’s 

sentencing decision as a basis for commuting the death sentence, 

we will not consider his separate argument under the same 

57
assignment of error as a basis for reversing that sentence and 

ordering a new sentencing proceeding.12

Powell contends that the death sentenced imposed upon him 

is excessive or disproportionate when compared to similar cases 

considering both the crime and the defendant. Powell’s sole 

contention is that his history of mental health problems and his 

failure to receive adequate treatment when in state custody as a 

juvenile militates against the appropriateness of the death 

penalty in his case. We disagree. 

Code § 19.2-264.4(B) lists as a mitigating factor the fact 

that “the capacity of the defendant to appreciate the 

criminality of his conduct or to conform his conduct to the 

requirements of law was significantly impaired.” The 

psychologist called by Powell did not offer a specific diagnosis 

of Powell’s mental health problems, merely classifying them 

generally as suggesting an anti-social personality disorder and 

“a mood disorder, primarily depressive in nature . . . 

 

12 Powell also contends that the “ends of justice” exception 

of Rule 5:25 would permit us to consider the alleged error in 

the life sentence verdict form as a basis for reversing his 

death sentence and ordering a new sentencing proceeding. 

However, as Powell cannot argue for reversal of his death 

sentence under the assignment of error paralleling the mandatory 

review of that sentence and failed to make this issue the 

subject of a separate assignment of error, the issue is not 

properly before us. Rule 5:17. Accordingly, we will not 

address this issue as a basis for reversing the sentence of 

death and remanding for a new sentencing proceeding. 

58
characterized by irritability, short temper and so forth.” The 

psychologist did not testify that Powell lacked the ability to 

appreciate the criminality of his conduct or that his condition 

significantly impaired his ability to conform his conduct to the 

requirements of the law. 

The jury heard this testimony concerning Powell’s mental 

health problems, and we must assume that the jury followed the 

trial court’s instruction to consider evidence presented in 

mitigation. The jury clearly concluded that Powell’s history of 

mental health problems did not mitigate his offense. See Swann 

v. Commonwealth, 247 Va. 222, 238-39, 441 S.E.2d 195, 206-07, 

cert. denied, 513 U.S. 889 (1994) (death sentence imposed 

despite “history of mental health hospitalization and 

treatment”); Hoke v. Commonwealth, 237 Va. 303, 313, 377 S.E.2d 

595, 601, cert. denied, 491 U.S. 910 (1989) (death sentence 

imposed despite evidence of defendant’s prior confinement in 

nine or ten mental hospitals); Giarratano v. Commonwealth, 220 

Va. 1064, 1076-79, 266 S.E.2d 94, 101-103 (1980) (death sentence 

imposed despite mitigating evidence of defendant’s “schizoid 

personality disturbance” and “extreme mental and emotional 

disturbance”). 

 

59
Apart from Powell’s contention that his history of mental 

health problems should preclude the imposition of a death 

sentence in his case, we are required by Code § 17.1-313(C)(2) 

to conduct a comparative review of the death sentence imposed in 

this case with other capital murder cases, including those where 

a life sentence was imposed. “The purpose of our comparative 

review is to reach a reasoned judgment regarding what cases 

justify the imposition of the death penalty.” Orbe v. 

Commonwealth, 258 Va. 390, 405, 519 S.E.2d 808, 817 (1999), 

cert. denied, 529 U.S. 1113 (2000). In conducting this 

statutorily mandated review in this case, we have focused on 

cases in which the victim was murdered during the commission of 

rape or attempted rape, and in which the sentence of death was 

imposed based on findings of both future dangerousness and 

vileness. See, e.g., Patterson v. Commonwealth, 262 Va. 301, 

551 S.E.2d 332 (2001); Swisher v. Commonwealth, 256 Va. 471, 506 

S.E.2d 763 (1998), cert. denied, 528 U.S. 812 (1999); Pruett v. 

Commonwealth, 232 Va. 266, 351 S.E.2d 1 (1986), cert. denied, 

482 U.S. 931 (1987); Coleman v. Commonwealth, 226 Va. 31, 307 

S.E.2d 864 (1983), cert. denied, 465 U.S. 1109 (1984); Mason v. 

Commonwealth, 219 Va. 1091, 254 S.E.2d 116, cert. denied, 444 

U.S. 919 (1979); Smith v. Commonwealth, 219 Va. 455, 248 S.E.2d 

135 (1978), cert. denied, 441 U.S. 967 (1979). We have also 

considered cases in which defendants received life sentences, 

60
rather than the death penalty, for capital murder during the 

commission of rape or attempted rape. See, e.g., Horne v. 

Commonwealth, 230 Va. 512, 339 S.E.2d 186 (1986); Keil v. 

Commonwealth, 222 Va. 99, 278 S.E.2d 826 (1981). Considering 

all the factors revealed by the record, both those favoring 

imposition of the death sentence and those in mitigation against 

it, we hold that the sentence is neither excessive nor 

disproportionate to the penalties imposed by other sentencing 

bodies in the Commonwealth for comparable crimes. 

III. CONCLUSION 

Having found no error below and perceiving no other reason 

to commute or set aside the sentence of death, we will affirm 

the judgment of the trial court. 

Affirmed. 

61