Present: All the Justices 

WALTER MICKENS, JR. 

OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR. 

v. Record No. 961216 

 November 1, 1996 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Verbena M. Askew, Judge 

 In this appeal, we review a judgment sentencing Walter 

Mickens, Jr., to death following a second sentencing hearing. 

 I 

 Mickens was convicted of the capital murder of Timothy Jason 

Hall, i.e., the willful, deliberate, and premeditated killing of 

Hall in the commission of, or subsequent to, attempted forcible 

sodomy, in violation of Code § 18.2-31(5), and sentenced to 

death. We affirmed the conviction and death sentence. Mickens

v. Commonwealth, 247 Va. 395, 442 S.E.2d 678 (1994) (Mickens I). 

 The Supreme Court of the United States, however, vacated the 

judgment and remanded the case to this Court for reconsideration 

in light of Simmons v. South Carolina, 512 U.S. 154 (1994). 

Mickens v. Virginia, 513 U.S. ___, 115 S.Ct. 307 (1994). Upon 

remand, we concluded that the holding in Simmons required a 

remand of the case to the trial court for a new sentencing 

hearing. Mickens v. Commonwealth, 249 Va. 423, 457 S.E.2d 9 

(1995) (Mickens II).1

 On February 5-8, 1996, the trial court conducted the new 

 

 1In Mickens II, we ruled that the jury was entitled to be 

informed of Mickens' parole ineligibility. 249 Va. at 425, 457 

S.E.2d at 10. To this end, the trial court, upon remand, 

instructed the jury that "imprisonment for life" meant life 

imprisonment "without possibility of parole." 
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sentencing hearing, and, after hearing evidence in aggravation 

and in mitigation, the jury fixed Mickens' punishment at death, 

based upon both the "vileness" and the "future dangerousness" 

predicates. Code § 19.2-264.2. After considering a probation 

officer's report and additional evidence presented during a postsentencing hearing, the trial court sentenced Mickens in 

accordance with the jury's verdict. 

 In this appeal of right, we review Mickens' death sentence 

and consider Mickens' assignments of error to various rulings by 

the trial court during the new sentencing hearing. Code § 17-

110.1. 

 II 

 A 

 A full statement of the facts surrounding the crime is set 

forth in Mickens I, 247 Va. at 398-401, 442 S.E.2d at 681-83. At 

the new sentencing hearing, however, evidence of the crime was 

limited to the testimony of two witnesses, an Identification 

Technician with the Crime Scene Search Unit of the Newport News 

Police Department and an Assistant Chief Medical Examiner for the 

Commonwealth. 

 In the early afternoon of March 30, 1992, the police 

technician was dispatched to the crime scene on the shoreline of 

the James River, near 29th Street, in the City of Newport News. 

There she saw the body of the victim, later identified as Timothy 

Jason Hall. The body was nude from the waist down, except for 
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white athletic socks, and the victim's legs were spread apart 

approximately 12 inches. Pubic hairs were recovered from the 

victim's buttocks. Bloody "transfer" stains were apparent on the 

outsides of the victim's thighs, and a "whitish" fluid was 

evident around the victim's anus and on his inner thighs.2

 An autopsy on the victim's body, performed by the medical 

examiner, revealed 143 separate "sharp force injuries." Of 

these, 62 were paired stab wounds which were present over the 

victim's head, neck, back, and shoulders. There also were 13 

single stab wounds and three paired incised wounds. The medical 

examiner concluded that the victim had bled to death and that 25 

of the 143 wounds were fatal. The fatal wounds included a stab 

wound to the right neck that severed the carotid artery and the 

jugular vein, four paired stab wounds that punctured the right 

lung, three stab wounds that punctured the left lung, seven stab 

wounds to the skull that penetrated the brain, a stab wound to 

the forehead that also penetrated the brain, and one pair of stab 

wounds that perforated the liver. The medical examiner opined 

that the fatal wounds may not have caused instant death, and she 

estimated that the victim could have survived for as long as 30 

to 40 minutes after the last wound had been inflicted. 

 B 

 In the new sentencing hearing, as in the first trial, the 

 2Bloody "transfer" stains occur when a bloody object comes 

into contact with a surface, thereby leaving a stain on the 

surface. 
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Commonwealth proved that Mickens had been convicted of six prior 

felonies, which are summarized as follows: 

Date Offense Punishment

 March 16, 1973 Attempted larceny 3 years' 

 from the person imprisonment 

 June 3, 1974 Sodomy 3 years' 

 imprisonment 

 June 3, 1974 Robbery 6 years' 

 imprisonment 

 June 3, 1974 Grand larceny from 4 years' 

 the person imprisonment 

 February 4, 1980 Sodomy 10 years' 

 imprisonment 

 February 4, 1980 Robbery 7 years' 

 imprisonment 

 The evidence also established that Mickens had been paroled 

from prison three times. His initial parole on October 30, 1973, 

 was revoked on August 16, 1974, because he had been convicted of 

robbery, grand larceny from the person, and sodomy. Mickens' 

second parole on July 1, 1979, was revoked on April 11, 1980, 

because he had been convicted of sodomy and robbery. His third 

parole commenced on December 19, 1991, and he was on parole when 

Hall was murdered. 

 Charles Edward Siron, one of Mickens' sodomy victims, 

testified that, on February 14, 1974, when he was 18 years old, 

he and Mickens were incarcerated in the Newport News City Jail. 

While Siron was sleeping, Mickens put a razor blade to Siron's 

throat and forced him out of bed and into the shower area where 
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Mickens attempted to sodomize him. 

 Ruby Bunn, one of Mickens' robbery victims, testified that, 

on February 7, 1974, she was teaching her second grade class at 

Erwin School in the City of Newport News. Mickens appeared at 

the classroom door holding a knife and demanding her pocketbook. 

 Bunn went to get her money from her purse, and, when she looked 

up, she saw Mickens standing near a small boy and holding the 

knife a few inches from the boy's head. Bunn gave Mickens her 

money, and he left the classroom. 

 Mickens called three witnesses, Darius L. Robinson, 

Jacquelyn Carter Brown, and his mother, Catherine Mickens. 

Robinson, a correctional officer who supervises Mickens in 

prison, testified that Mickens does his assigned chores "very 

well." Also, Mickens participates in a Literacy Incentive 

Program that teaches inmates mathematics, spelling, and reading. 

 Robinson stated that Mickens has not been a problem to him while 

in prison and that he has no "personal apprehension" of Mickens. 

 Robinson further stated that, if Mickens were given a life 

sentence, he first would be "housed in an area of people of the 

same type of conviction," and, if he "progresses," he probably 

would be placed in a "less secure area," with nonviolent 

offenders. 

 Brown, a counselor with the Department of Corrections, talks 

to prisoners "about family situations, personal problems, [and] 

things of that nature." She has provided counseling services to 
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Mickens and has found him to be receptive to her counseling. 

 Mickens' mother testified that Mickens has two siblings and 

that the three children lived with her during their 

"developmental years." The children's father was not at home and 

did not provide assistance, and Mrs. Mickens worked and supported 

the family with the help of her grandfather. Mrs. Mickens 

testified that her son began to get into trouble when he was 

about 12 or 13 years old. During that time, she said, the "court 

system" did not provide any help for Mickens or services to 

assist her. She expressed hope that the jury would give her son 

a life sentence. 

 III 

 In this appeal, Mickens revisits many claims that he 

asserted, and we rejected, in Mickens I. After reconsidering 

those claims, we adhere to our previous decisions and, therefore, 

reject the following claims: 

 A 

 The death penalty is unconstitutional per se in that it 

constitutes cruel and unusual punishment in violation of the 

Eighth Amendment to the Federal Constitution, and the use of 

electrocution to carry out a death penalty also violates the 

Eighth Amendment. Both claims were rejected in Mickens I, 247 

Va. at 402, 442 S.E.2d at 683.3

 

 3On appeal, Mickens also challenges the use of lethal 

injection, the alternate method of execution provided for in Code 

§ 53.1-233, contending that it too is cruel and unusual 

punishment. This claim was not made in the trial court, and, 
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 B 

 The aggravating factors set forth in Code § 19.2-264.4(C) as 

predicates for the imposition of the death penalty are 

unconstitutionally vague and unreliable. This claim was rejected 

in Mickens I. Id. at 402-03, 442 S.E.2d at 684. 

 C 

 Virginia's death penalty statutes are unconstitutional 

because they do not require a jury to find that aggravating 

circumstances "outweigh" mitigating circumstances and because 

they do not require jury instructions defining mitigating 

evidence, specifying the burden of proof for such evidence, and 

specifying how jurors must consider such evidence. This claim 

was rejected in Mickens I. Id. at 403-04, 442 S.E.2d at 684.4

 

 D 

 Virginia fails to provide meaningful appellate review of 

death penalty cases. This claim was rejected in Mickens I. Id. 

at 405, 442 S.E.2d at 685. 

 E 

 An accused in a capital case is entitled to additional 

peremptory jury strikes. This claim was rejected in Mickens I. 

Id. at 404, 442 S.E.2d at 685. 

(..continued) 

therefore, we will not consider it for the first time on appeal. 

 Rule 5:25. 

 4On appeal, Mickens also challenges the trial court's giving 

of Instructions 1 and 3, which governed the jury's consideration 

of aggravating and mitigating circumstances. We reject this 

contention, finding that the jury was properly instructed. 
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 F 

 The trial court erred in admitting into evidence five 

photographs of the victim's body. This claim was rejected in 

Mickens I. Id. at 407-08, 442 S.E.2d at 687. 

 IV 

 Mickens contends that the trial court erred in refusing to 

remove prospective juror Frank Johnson for cause. We do not 

agree. 

 During the jury voir dire, the prospective jurors were 

examined individually. The trial court excluded prospective 

juror Robin Johnson, who is Frank Johnson's sister, because she 

told the court that one of her brothers had been murdered and 

that she would be unable to be impartial in judging Mickens. She 

stated that she would be more prone to vote for the death penalty 

than for life imprisonment. 

 The next prospective juror to be examined was Frank Johnson. 

 After a thorough examination, he unequivocally stated that his 

brother's murder would not influence his decision as a juror or 

prevent him from judging Mickens impartially. 

 The trial court retained Frank Johnson as a juror. The 

court observed that he "was emphatic about [his] being able to be 

impartial" and that it had no reason to believe otherwise. 

 An appellate court must give deference to a trial court's 

decision whether to exclude or retain a prospective juror because 

the trial court "`sees and hears the juror;'" therefore, a trial 
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court's decision in the matter will not be disturbed on appeal 

absent a showing of manifest error. Eaton v. Commonwealth, 240 

Va. 236, 246, 397 S.E.2d 385, 391 (1990), cert. denied, 502 U.S. 

824 (1991) (quoting Wainwright v. Witt, 469 U.S. 412, 426 

(1985)). Accord Sheppard v. Commonwealth, 250 Va. 379, 386-87, 

464 S.E.2d 131, 136 (1995), cert. denied, ___ U.S. ___, 116 S.Ct. 

1332 (1996); Stockton v. Commonwealth, 241 Va. 192, 200, 402 

S.E.2d 196, 200, cert. denied, 502 U.S. 902 (1991). 

Additionally, there is no rule of automatic exclusion of a 

prospective juror simply because a family member was the victim 

of a violent crime. Stockton, 241 Va. at 200, 402 S.E.2d at 200; 

Mackall v. Commonwealth, 236 Va. 240, 252, 372 S.E.2d 759, 767 

(1988), cert. denied, 492 U.S. 925 (1989). 

 In the present case, it is clear from Frank Johnson's 

answers that his brother's murder would not have prevented him 

from judging Mickens impartially or made him more inclined to 

impose the death penalty. Thus, giving the trial court the 

deference it is due, the record fully supports the trial court's 

ruling, and we cannot say that the ruling constituted manifest 

error. 

 V 

 Mickens contends that the trial court erred in denying his 

motion for a bill of particulars, seeking the Commonwealth's 

identification of all the evidence "on which it intends to rely 

in support of the aggravating factors . . . and its contention 
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that the death penalty is the appropriate punishment."5

 We 

reject this contention. 

 An accused is not entitled to a bill of particulars as a 

matter of right. Code § 19.2-230. Whether to require the 

Commonwealth to file a bill of particulars is a matter that rests 

within the sound discretion of the trial court. Goins v. 

Commonwealth, 251 Va. 442, 454, 470 S.E.2d 114, 123 (1996). It 

is not the proper function of a bill of particulars to require 

the Commonwealth to identify all the evidence it intends to 

produce in the penalty phase of a capital murder trial. 

Quesinberry v. Commonwealth, 241 Va. 364, 372, 402 S.E.2d 218, 

223, cert. denied, 502 U.S. 834 (1991). 

 In the present case, the record shows that Mickens had full 

knowledge of all evidence to be used against him. The 

Commonwealth's Attorney advised the court and Mickens that "the 

evidence . . . will be substantially the same as the evidence 

. . . produced [in the first trial]," and, except in one 

particular of which Mickens was advised, the evidence was the 

same. Clearly, therefore, the trial court did not abuse its 

discretion in denying Mickens' motion for a bill of particulars. 

 VI 

 Code § 17-110.1(C) requires us to review Mickens' death 

 

 5The Commonwealth did not intend to introduce any 

unadjudicated criminal conduct by Mickens. Therefore, Code § 

19.2-264.3:2, which requires notice of such intention and a 

description of such conduct, was not applicable. 
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sentence on the record to determine whether the sentence (1) was 

imposed under the influence of passion, prejudice, or any other 

arbitrary factor; or (2) is excessive or disproportionate to the 

penalty imposed in similar cases, considering both the crime and 

the defendant. We conduct this review even though Mickens has 

not claimed that his death sentence was the product of any 

arbitrary factor or that it is excessive or disproportionate. 

 From our independent review of the record, we have found 

nothing to suggest that the death sentence was imposed under the 

influence of passion, prejudice, or any other arbitrary factor. 

 In making the proportionality review, we must determine 

whether other sentencing bodies in this jurisdiction generally 

impose a death sentence for similar or comparable crimes, 

considering both the defendant and his crime. Goins, 251 Va. at 

469, 470 S.E.2d at 131-32. In Mickens I, we concluded that 

Mickens' death sentence was not excessive or disproportionate to 

penalties generally imposed by other sentencing bodies in the 

Commonwealth. 247 Va. at 412, 442 S.E.2d at 689. In discharging 

the same duty here, we have compiled and examined the records of 

all capital murder cases reviewed by this Court since Mickens I, 

Code § 17-110.1(E), giving particular attention to the cases in 

which the death sentence was based upon both the "vileness" and 

the "future dangerousness" predicates. From this review, we 

conclude that Mickens' death sentence is neither excessive nor 

disproportionate to penalties generally imposed by other 
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sentencing bodies in the Commonwealth for similar and comparable 

crimes. See, e.g., Barnabei v. Commonwealth, 252 Va. 161, 179, 

___ S.E.2d. ___, ___ (1996); Goins, 251 Va. at 469-70, 470 S.E.2d 

at 132; Sheppard, 250 Va. at 395, 464 S.E.2d at 141; Breard v. 

Commonwealth, 248 Va. 68, 89, 445 S.E.2d 670, 682, cert. denied, 

___ U.S. ___, 115 S.Ct. 442 (1994). 

 VII 

 Accordingly, we conclude that there is no reversible error 

in the trial court's judgment and that the sentence of death 

should be affirmed. Consequently, we will affirm the judgment. 

Affirmed.