PRESENT: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and 

Lemons, JJ., and Carrico, S.J.1

KEVIN GREEN 

v. Record No. 020757 OPINION BY JUSTICE CYNTHIA D. KINSER 

 June 6, 2003 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF BRUNSWICK COUNTY 

James A. Luke, Judge 

 This capital murder case is before the Court for the 

second time. We previously reversed Kevin Green’s 

conviction for the 1998 capital murder of Patricia L. 

Vaughan and remanded the case to the circuit court for a 

new trial. Green v. Commonwealth, 262 Va. 105, 118, 546 

S.E.2d 446, 452 (2001).2 Upon retrial, a jury again 

convicted Green of capital murder during the commission of 

robbery in violation of Code § 18.2-31(4). At the 

conclusion of the penalty phase of the bifurcated trial, 

the jury fixed Green’s punishment at death, finding “that 

there is a probability that [Green] would commit criminal 

acts of violence that would constitute a continuing serious 

 1

 Chief Justice Carrico presided and participated in 

the hearing and decision of this case prior to the 

effective date of his retirement on January 31, 2003. 

2

 Green’s convictions for robbery, the malicious 

wounding of Lawrence T. Vaughan, and three counts of the 

illegal use of a firearm were not before the Court in the 

prior appeal, Green, 262 Va. at 108, 546 S.E.2d at 447, nor 

are they at issue in the present appeal. 
threat to society” (the “future dangerousness” predicate), 

and “that his conduct in committing the offense [was] 

outrageously or wantonly vile, horrible or inhuman in that 

it involved . . . both aggravated battery to the victim and 

depravity of mind” (the “vileness” predicate). See Code 

§§ 19.2-264.2 and –264.4(D). The circuit court 

subsequently sentenced Green in accordance with the jury 

verdict. 

 We consolidated the automatic review of Green’s death 

sentence with the appeal of his capital murder conviction. 

See Code § 17.1-313(F). Upon considering the issues raised 

by Green and conducting our mandated review of the 

imposition of the death penalty, we find no error in the 

judgment of the circuit court. Thus, we will affirm that 

judgment and the sentence of death in this case. 

I. FACTS 

A. GUILT PHASE 

 The victim, Patricia L. Vaughan, and her husband, 

Lawrence T. Vaughan, owned and operated a small grocery 

store in Brunswick County. As part of their grocery store 

operation, the Vaughans regularly cashed checks for 

employees of several nearby businesses, including a lumber 

company that paid its employees on Friday of each week. 

Consequently, Mr. Vaughan routinely went to a bank on 

2
Fridays to obtain sufficient currency to cash payroll 

checks for the lumber company employees. And, he did so on 

Friday, August 21, 1998. Upon returning from the bank on 

that Friday, he placed $10,000 in a bank bag that he kept 

in a cabinet underneath the cash register, another $10,000 

elsewhere in the store, and the remaining cash in a safe. 

 On the day in question, as Mr. Vaughan was starting to 

eat lunch and to file an invoice, two men entered the 

store. Mr. Vaughan saw them and recognized the taller of 

the two men as Kevin Green, the defendant. Green had 

worked for the lumber company for approximately eight to 

ten weeks during the preceding spring, and had frequented 

the Vaughans’ grocery store at lunchtime, after work, and 

on Fridays to cash his payroll checks. 

 When the two men entered the store, Mrs. Vaughan had 

her back to the door and was standing five or six feet from 

Mr. Vaughan. Thinking that the shorter man was going over 

to the “drink box,” Mr. Vaughan turned around to finish 

his filing. As he did so, he heard his wife scream, “Oh, 

God.” At trial, Mr. Vaughan described what he then heard: 

 It was four bangs. Bang, bang and I was 

hit. I didn’t know where I was hit, but I was 

hurt. I turned a complete turn and fell on the 

floor, sit [sic] down on my right foot and broke 

my right ankle. And about [the] time I went 

down, I looked up and I realized it was a gun 

being fired. I could see him, he shot toward my 

3
wife with the fourth shot. I saw his hand with a 

pistol in it. He was holding [it] like he was 

target practicing. 

 Mr. Vaughan testified that Green, after firing the 

four shots, walked back to the door and stood there “as a 

lookout” while the other man came around behind the counter 

and tried to open the cash register. When the drawer on 

the cash register jammed, Green directed the shorter man to 

look under the counter. Upon doing so, he found the bank 

bag containing approximately $9,000 in cash and Mr. 

Vaughan’s pistol, which he then used to shoot through the 

key hole in the cash register drawer. Taking the bank bag 

and the pistol, the shorter man exited the store, but Green 

walked a few steps over to where Mrs. Vaughan was lying on 

the floor and pointed the gun at her again. According to 

Mr. Vaughan, the gun misfired, and Green ejected a live 

cartridge onto the floor. Green then fired two more shots 

in the direction of Mrs. Vaughan. Lowering his head, Mr. 

Vaughan heard the gun “snap” one more time, but he did not 

know whether Green was pointing the gun at him or his wife. 

Only then, when the gun was empty, did Green leave the 

store. 

 After Green left, Mr. Vaughan dragged himself 

approximately five feet across the floor of the store to a 

telephone and dialed the “911” emergency number, but he was 

4
too weak to reach his wife who was still lying on the 

floor. One of the first police officers to arrive at the 

scene testified that he observed “puddles of blood just 

pouring out of [Mrs. Vaughan’s] nose, her mouth, [and] her 

head.” A local volunteer medical examiner determined that 

Mrs. Vaughan had died at the scene of the shooting. 

 A subsequent autopsy of Mrs. Vaughan’s body revealed 

that she sustained four gunshot wounds. One bullet 

penetrated the left side of her head, passed through the 

temporal and frontal lobes of her brain, and lodged in the 

inner frontal sinus of her face. Another bullet entered 

the right side of her chest and went into the upper lobe of 

her right lung. A third bullet penetrated the left side of 

her back. This was the only non-lethal wound. The fourth 

bullet entered the right side of Mrs. Vaughan’s back and 

penetrated two lobes of her right lung. According to the 

forensic pathologist who performed the autopsy, Dr. Jose 

Abrenio, this wound caused hemorrhaging in her thoracic 

cavity, which led to difficulty in breathing and had the 

effect of suffocating her. Dr. Abrenio also opined that 

Mrs. Vaughan survived “seconds to minutes” after she was 

first shot. 

 Four days after the murder, a warrant was issued to 

search Green, his residence, and automobile. During the 

5
search of his home, six bullets were retrieved from the 

trunk of a tree in his yard. The bullets were found behind 

a “makeshift target” hanging on the tree. Forensic testing 

on those six bullets and the four bullets recovered from 

Mrs. Vaughan’s body during the autopsy revealed that all 

ten “caliber 25 Auto full metal jacketed bullets” had been 

fired from one weapon. About 35 to 50 feet from the tree, 

16 25-caliber empty cartridge casings were also recovered. 

 After Green was arrested, he executed a form waiving 

his Miranda rights and agreed to be questioned by law 

enforcement officers. During that interrogation, Green 

admitted that he and his cousin, David Green, robbed the 

Vaughans’ grocery store and that he selected their store 

because he knew the Vaughans kept a lot of money there. 

Green and his cousin had originally planned to wear masks 

to conceal their faces. However, they discarded the masks 

after they had to wait behind the store in their automobile 

for about an hour because other people were in the grocery 

store. Green also admitted that he shot both of the 

Vaughans, hitting Mrs. Vaughan four times. 

B. PENALTY PHASE 

 During the penalty phase of the trial, the 

Commonwealth presented testimony from several correctional 

officers who had supervised Green’s incarceration at 

6
different times and facilities. Much of their testimony 

described incidents during which Green exhibited disruptive 

behavior, refused to obey instructions, and made threats to 

the officers. For example, one officer testified that 

Green “clinched” the bars of his cell and said, “I’ll get 

you, I will get you.” Another officer stated that, when 

Green had to be placed in isolation because of his 

disruptive conduct, Green started throwing anything he 

could find, flushing the toilet, and throwing water into 

the hallway. Green then told the officer that he was going 

to make the officer’s life “a living hell.” Other 

personnel described incidents in which Green threw food, 

trash, and feces on the floor and refused to take his 

medication. 

 In addition to this testimony, the Commonwealth called 

Clement Leon Cleaton, an acquaintance of Green. Cleaton 

testified that Green had threatened to rob and kill him and 

that he had heard Green threaten to rob a man selling ice 

cream from a truck. Cleaton also related an incident in 

which Green had shot several times toward Cleaton’s “hog 

pen” while Cleaton was feeding his hogs. Cleaton had asked 

Green not to shoot in that direction. 

 As evidence of mitigating circumstances, Green 

introduced testimony from Dr. Jack Daniel, an expert in the 

7
field of forensic pathology. Dr. Daniel had reviewed Mrs. 

Vaughan’s death certificate, the medical examiner’s report, 

and Dr. Abrenio’s autopsy report. He testified that he 

found no evidence in those documents that Mrs. Vaughan had 

endured prolonged suffering before she died from the 

gunshot wounds. However, Dr. Daniel agreed that it was not 

possible to determine whether the blood found in Mrs. 

Vaughan’s chest cavity during the autopsy was the result of 

an immediate bleeding at the time of the injury or 

accumulated during the hours following her death. 

 The jury also heard evidence from Dr. Scott W. 

Sautter, an expert in neuropsychology who had tested 

Green’s I.Q. on two separate occasions using two different 

tests, the “Wechsler abbreviated intelligence scale” and 

the “Wechsler [A]dult [I]ntelligence [S]cale [R]evised.” 

Dr. Sautter testified that, while the formats of the two 

tests are similar, the “two tests are not exactly the 

same.” Dr. Sautter reported that Green had a full-scale 

I.Q. score of 74 on the Wechsler Adult Intelligence Scale 

and a score of 55 on the “abbreviated” test. With that 

level of intellectual functioning, Dr. Sautter stated that 

Green could work best in a structured environment with 

guidance and supervision, and that he would expect Green to 

have difficulties in independent living, managing a budget, 

8
and going to a job on a consistent basis. Based upon his 

evaluation of Green in a prison setting, Dr. Sautter also 

opined that, in a maximum-security situation, Green would 

not be a danger to others and his behavior would be 

appropriate. However, in a less secure environment, Dr. 

Sautter opined that Green would be susceptible to harm from 

other people because of his limited capacity for 

communication. 

 Two clinical psychologists testified for the 

Commonwealth in rebuttal to Dr. Sautter’s testimony. Dr. 

Lynda J. Hyatt reported that Green had an I.Q. score of 84 

on the “Ammons & Ammons quick test,” which placed Green in 

the category of “low average” mental functioning. Dr. 

Thomas A. Pasquale evaluated Green’s personality as well as 

his intellectual functioning. Dr. Pasquale diagnosed 

depression, alcohol dependency, drug abuse, anti-social 

personality disorder, and malingering. According to Dr. 

Pasquale, Green had a full-scale I.Q. score of 74 on the 

Weschler Adult Intelligence Scale, placing him in the 

“borderline range” of intellectual functioning. With 

regard to Green’s adaptive functioning, Dr. Pasquale noted 

that Green had worked at a pizza restaurant where he 

functioned routinely in taking orders, delivering pizzas, 

and using the cash register; and that Green paid his own 

9
rent, lived with a friend, and had a driver’s license. Dr. 

Pasquale also opined that Green is a high risk for violence 

in an “open community” but that, in a prison setting, the 

probability of such risk is low.3

II. ANALYSIS 

A. PRE-TRIAL ISSUES 

1. APPOINTMENT OF EXPERTS 

 Green assigns error to the circuit court’s refusal to 

appoint an investigator, a mitigation specialist, and a 

jury expert to assist him in his defense. Although Green 

moved the court to appoint an investigator, he never asked 

for a mitigation specialist or a jury expert. Thus, he is 

now barred from raising any claim on appeal regarding the 

court’s failure to appoint those two experts. See Rule 

5:25. 

 As to his request for an investigator, Green asserted 

in his motion before the circuit court that he needed this 

type of expert assistance because he had no available 

investigative resources, and because his counsel lacked 

both formal training in criminal investigation and the time 

to interview essential witnesses. Green claimed that an 

investigator would have “the expertise necessary to locate 

 3

 We will present additional facts and proceedings as 

necessary to address specific issues. 

10
essential witnesses and data, examine and evaluate 

testimony and documents using his or her special knowledge 

of the issues likely to be significant at a capital murder 

trial, issues beyond the comprehension of the ordinary 

layman.” On appeal, he asserts that the “imbalance” 

resulting from his lack of investigative resources as 

compared to the Commonwealth’s vast resources violated his 

equal protection and due process rights as well as his 

Sixth Amendment right to counsel. 

 As this Court has previously stated, a defendant does 

not have an absolute right to the assistance of an 

investigator, even when charged with capital murder. 

Bailey v. Commonwealth, 259 Va. 723, 737, 529 S.E.2d 570, 

578 (2000). Instead, as with any request for the 

appointment of an expert, a defendant “must show a 

particularized need” by establishing “that the services of 

an expert would materially assist him in the preparation of 

his defense and that the denial of such services would 

result in a fundamentally unfair trial.” Husske v. 

Commonwealth, 252 Va. 203, 212-13, 476 S.E.2d 920, 925-26 

(1996). The determination whether a defendant has made an 

adequate showing of particularized need for expert 

assistance lies within the sound discretion of the trial 

court. Id.; see also Lenz v. Commonwealth, 261 Va. 451, 

11
462, 544 S.E.2d 299, 305, cert. denied, 534 U.S. 1003 

(2001); Bailey, 259 Va. at 737, 529 S.E.2d at 578. 

 The reasons Green presented to the circuit court to 

justify his request for the appointment of an investigator 

are strikingly similar to those offered by the defendant in 

Bailey, 259 Va. at 737-38, 529 S.E.2d at 578. Bailey, like 

Green, claimed he needed an investigator to “locate 

essential witnesses and data, [and] examine and evaluate 

testimony and documents . . . likely to be significant at a 

capital murder trial.” Id. We concluded that Bailey’s 

assertions fell “far short of demonstrating a 

particularized need for the services of an expert.” Id.

We reach the same conclusion in the present case. A 

particularized need is more than a “[m]ere hope” that 

favorable evidence can be obtained through the services of 

an expert. Husske, 252 Va. at 212, 476 S.E.2d at 925-26. 

Thus, we hold that the circuit court did not abuse its 

discretion in denying Green’s motion for the appointment of 

an investigator.4

2. VILENESS AGGRAVATING FACTOR 

 4

 To the extent that Green also argues that the Sixth 

Amendment requires the appointment of an investigator, we 

rejected that argument in Lenz, 261 Va. at 462, 544 S.E.2d 

at 305. 

12
 Green filed a pre-trial motion asking the circuit 

court to rule that the evidence available to the 

Commonwealth would be insufficient, as a matter of law, to 

establish the “vileness” aggravating factor. Green now 

claims that the court erred in denying that motion. 

 There is no procedure in Virginia that allows a 

circuit court, in a pre-trial context, to rule on the 

sufficiency of the Commonwealth’s evidence in a criminal 

case. Instead, the court must determine the sufficiency of 

that evidence based on the record made at trial. 

Furthermore, as explained in Section (D)(2) below, there is 

sufficient evidence in this case to support the jury’s 

finding of the “vileness” predicate. Thus, the circuit 

court did not err in denying this pre-trial motion. 

3. DISCOVERY 

 Green assigns error to the circuit court’s order 

limiting discovery to the materials and information allowed 

by Rule 3A:11. However, Green does not identify any 

specific evidence or information that he sought in 

discovery but which the Commonwealth refused to disclose. 

Thus, we find no merit in his argument that he was entitled 

to expanded discovery rights. Additionally, the record 

reflects that he received all the discovery to which he was 

13
entitled under Rule 3A:11. See Bailey, 259 Va. at 736, 529 

S.E.2d at 577. 

B. JURY SELECTION ISSUES 

1. CHANGE OF VENUE 

 Prior to trial, Green moved for a change of venue or, 

in the alternative, for a venire from another county or 

city not bordering Brunswick County. In support of his 

motion, Green submitted copies of 37 newspaper articles 

concerning this case, affidavits from six people, and the 

results of an informal survey conducted by Green’s counsel. 

Although Green initially stated that he would like to have 

the issue resolved quickly, the circuit court, after 

hearing argument, took the motion under advisement. Green 

did not object to the court’s decision to do so. 

 At the conclusion of the penalty phase of the trial, 

the court remarked from the bench that the defense had 

moved for a change of venue “way back” and that “[i]t was 

taken under advisement.” In order for the record to 

reflect a ruling on the motion, the court then stated that 

it considered the motion denied at the time the jury was 

empanelled. The court memorialized its decision in an 

order entered nunc pro tunc October 29, 2001. 

Green now assigns error to the court’s ruling. 

However, the Commonwealth asserts that Green is barred 

14
under Rule 5:25 from arguing that the circuit court should 

have granted a change of venue or that the voir dire 

process was “unreliable and not above suspicion.” The 

Commonwealth premises its argument on the fact that Green 

failed to renew his motion for a change of venue either 

after voir dire was completed or before the jury was 

empanelled and sworn. 

The record reflects that, after 24 jurors had been 

qualified and immediately before the parties made their 

peremptory strikes, the court asked if there were “[a]ny 

preliminary matters before we bring the jury in?” Green’s 

counsel stated, “No, sir.” When those 24 jurors returned 

to the courtroom, the court directed the parties to begin 

exercising their strikes. At that point, Green’s counsel 

stated, “Defense is ready.” When the parties completed 

their peremptory strikes, the court asked, “[I]s that your 

jury?” Defense counsel answered, “Yes, sir.” At no time 

did Green’s counsel ask the court to rule on the motion for 

a change of venue previously taken under advisement or 

renew that motion. 

Nevertheless, Green disputes any waiver of this issue. 

He argues that the court obviously knew that the motion for 

a change of venue was still pending since the court 

announced its ruling on the motion at the end of the trial. 

15
Green also asserts that he reminded the court of the 

outstanding motion when, just prior to commencement of voir 

dire, he introduced into evidence the newspaper articles 

and affidavits that he had previously attached to his 

memorandum in support of the motion. 

We do not agree with Green’s position. The posture of 

the change of venue motion in this case is analogous to the 

situation presented in Hoke v. Commonwealth, 237 Va. 303, 

377 S.E.2d 595 (1989). There, the defendant moved for a 

change of venue but requested that the motion be continued 

in order to determine whether a jury could be empanelled. 

Id. at 306, 377 S.E.2d at 597. The defendant agreed that 

he could renew the motion if, as a result of jury voir 

dire, there was a problem. Id. Because the defendant 

never renewed the motion, we refused to consider his 

contention on appeal that the trial court had abused its 

discretion by failing to grant a change of venue. Id.

Although Green did not agree to continue his change of 

venue motion as did the defendant in Hoke, Green, however, 

did not object to the circuit court’s decision to take the 

motion under advisement pending the outcome of voir dire. 

Consequently, it was incumbent upon Green to renew the 

motion before the jury was empanelled and sworn, or at 

least remind the court that it was still pending and that 

16
he wanted the court to rule on it. Cf. Lenz, 261 Va. at 

462-63, 544 S.E.2d at 305-06 (pretrial motion waived when 

defendant failed to request a ruling from the trial court). 

Indeed, that was precisely the procedure followed by the 

defendant in Thomas v. Commonwealth, 263 Va. 216, 559 

S.E.2d 652 (2002), a case in which this Court reversed a 

trial court’s refusal to grant a change of venue. Thomas 

filed a pre-trial motion for a change of venue, which the 

trial court took under advisement, but Thomas, unlike 

Green, renewed the motion following voir dire. Id. at 230, 

559 S.E.2d at 659. 

Not only did Green fail to renew his motion for a 

change of venue once the court took it under advisement, he 

also implicitly consented to the seating of the jury in 

this case. Cf. Commonwealth v. Washington, 263 Va. 298, 

304, 559 S.E.2d 636, 639 (2002) (holding defendant 

implicitly consented to trial court’s declaration of a 

mistrial); but cf. King v. Commonwealth, 264 Va. 576, 577-

78, 570 S.E.2d 863, 863-64 (2002) (holding defendant did 

not expressly or implicitly waive objection raised in 

motion to strike the evidence when defendant later did not 

object to a jury instruction covering the same issue). 

After voir dire was completed but before the parties 

exercised their peremptory strikes, the court specifically 

17
asked whether the parties had any matters to bring before 

the court. Similarly, when the parties completed their 

peremptory strikes, the court asked, “[I]s that your jury?” 

Instead of reminding the court about his pending change of 

venue motion at that point, Green’s responses to the 

court’s questions actually indicated that he had no 

remaining issues to raise with regard to jury selection or 

any objections to empanelling that jury. In short, he gave 

the circuit court no reason to believe that he was still 

pursuing a change of venue. Cf. Breard v. Commonwealth, 

248 Va. 68, 80, 445 S.E.2d 670, 677 (1994) (trial court 

reasonably could have assumed defendant acquiesced in 

seating a juror when defendant failed to renew motion to 

strike the juror after the court said it would rehear the 

motion upon completion of voir dire). Green’s responses 

were tantamount to a waiver of his prior motion. Thus, we 

will not address Green’s claim that the circuit court erred 

by refusing to grant his motion for a change of venue.5 See

Rule 5:25. 

2. JUROR QUESTIONNAIRE 

 5

 Green also asserts on brief that the voir dire 

process was unreliable and that the prospective jurors’ 

responses during voir dire were not forthcoming and 

credible. Green presents this argument for the first time 

on appeal. Thus, we will not consider it. Rule 5:25. 

18
 Green claims that the circuit court erred by denying 

his request to submit a questionnaire to prospective 

jurors. At a pre-trial hearing, Green advised the court 

that he intended to file a written motion on this matter 

along with a sample questionnaire. Our review of the 

record discloses that Green never filed either the motion 

or the sample questionnaire. Nor does the record contain 

any argument, oral or written, in support of such a motion. 

Instead, we find only the court’s order denying a motion 

for a jury questionnaire. Thus, Green is now barred from 

presenting argument for the first time on appeal with 

regard to this issue. Rule 5:25. 

 Moreover, we have previously held that the use of a 

juror questionnaire outside the courtroom would undermine 

the value derived from a trial court’s opportunity to 

observe and evaluate prospective jurors first hand. 

Strickler v. Commonwealth, 241 Va. 482, 492-93, 404 S.E.2d 

227, 234 (1991). Accordingly, we find no abuse of 

discretion by the circuit court on this issue. 

3. VOIR DIRE QUESTIONS 

 Green submitted a list of 79 proposed voir dire 

questions, which he later shortened to 52 questions. On 

appeal, he claims that the circuit court erred by 

19
specifically disallowing seven of those questions. Those 

seven questions as enumerated on the longer list are: 

No. 59. You understand there are twelve people on 

the jury. Why do you think there are twelve people on 

the jury? 

 No. 60. If there is a unanimous verdict, 

what does this mean about your discussion about 

the case? 

No. 61. What do you think about the death 

penalty? 

No. 67. What is the first thing that comes 

into your mind when you look at the defendant? 

What else do you see in him? 

No. 68. What kinds of adjectives or 

descriptive words would you use to describe this 

defendant to a spouse or friend? 

No. 69. What are your assumptions or 

opinions about him just because he is sitting 

here on trial? 

No. 71. How do you feel about life in prison 

without parole as punishment? 

 These seven questions were “an invitation to a 

rambling discourse on a broad range of emotions.” Buchanan 

v. Commonwealth, 238 Va. 389, 402, 384 S.E.2d 757, 765 

(1989). A defendant does not have a right to propound any 

question he wishes, Bell v. Commonwealth, 264 Va. 172, 196, 

563 S.E.2d 695, 711 (2002), and “trial courts are not 

required to allow counsel to ask questions which are so 

ambiguous as to render the answer meaningless,” Buchanan, 

238 Va. at 401, 384 S.E.2d at 764. Instead, voir dire 

20
questions must relate to the four statutory factors of 

relationship, interest, opinion, or prejudice. See Code 

§ 8.01-358 (“counsel for either party shall have the right 

to examine under oath any person who is called as a juror 

. . . to ascertain whether he 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”). 

 We conclude that the circuit court provided Green with 

“a full and fair opportunity,” LeVasseur v. Commonwealth, 

225 Va. 564, 581, 304 S.E.2d 644, 653 (1983), to determine 

whether each prospective juror could “stand indifferent in 

the cause,” Code § 8.01-358. When, as here, a 

 trial court affords ample opportunity to counsel 

to ask relevant questions and where the questions 

actually propounded by the trial court were 

sufficient to preserve a defendant’s right to 

trial by a fair and impartial jury, we will 

generally not reverse a trial court’s decision to 

limit or disallow certain questions from defense 

counsel. 

Buchanan, 238 Va. at 401, 384 S.E.2d at 764. Furthermore, 

the circuit court stated that its voir dire of prospective 

jurors would cover the issues concerning the death penalty 

and life in prison without parole addressed in question 

Nos. 61 and 71 and that, depending on a juror’s responses, 

the court would allow follow-up questions by counsel. 

21
Thus, the court did not abuse its discretion in refusing to 

allow Green to ask these seven questions. 

 Green also complains that the bifurcated procedure for 

felony trials prevented him from asking prospective jurors 

at the guilt phase about evidence of other crimes that the 

Commonwealth intended to use at the penalty phase to prove 

future dangerousness. However, Green does not assert that 

he attempted to ask any specific questions about other 

crimes. Nor did he argue to the circuit court that the 

bifurcated procedure prejudiced his ability to conduct voir 

dire of potential jurors. Thus, we will not consider this 

issue on appeal. Rule 5:25. We note, however, that the 

court allowed Green to ask prospective jurors whether they 

could consider his lack of a violent criminal record prior 

to this incident as a reason for not imposing the death 

penalty. 

 Green’s last assignment of error regarding voir dire 

deals with the following questions proposed by the 

Commonwealth: 

 No. 16. What contact did you have with the 

police in connection with that incident? Were 

you satisfied with the work of the police in 

connection with that incident[?] Were you 

satisfied with the work of the Courts[?] 

 No. 23. Have you, or a family member, 

friend, or acquaintance ever been prosecuted for 

22
a criminal offense? Do you feel that person was 

treated fairly by our system of justice? 

 We cannot find, nor does Green identify, any instance 

where the Commonwealth asked question No. 16. Thus, the 

issue whether the circuit court abused its discretion by 

allowing that question is moot. We also find no abuse of 

discretion by the court in allowing the Commonwealth to 

pose question No. 23 to prospective jurors. That question 

was designed to discover a potential juror’s possible 

prejudice against the Commonwealth, which is a proper 

subject for inquiry under Code § 8.01-358. 

4. JUROR WILLIAMS 

 Green contends that the circuit court erred by 

excusing prospective juror Williams for cause. The court 

granted the Commonwealth’s motion to strike this juror 

because of the juror’s equivocal answers about whether he 

could render a guilty verdict in a case involving the death 

penalty. We find no manifest error in the court’s 

decision. Yeatts v. Commonwealth, 242 Va. 121, 134, 410 

S.E.2d 254, 262 (1991) (trial court’s exclusion of 

prospective juror will not be disturbed on appeal absent 

manifest error). 

 During voir dire, the circuit court asked prospective 

juror Williams if he could sentence someone in a case in 

23
which one of the possible punishments is the death penalty. 

The juror responded that he did not know whether he could. 

Questioning by the Commonwealth revealed that this juror 

had a cousin who had been convicted of murder and sentenced 

to a term of imprisonment. When asked again whether he 

could listen to aggravating and mitigating evidence during 

the penalty phase of the trial and then decide whether to 

vote for life imprisonment or the death penalty based on 

that evidence, prospective juror Williams repeated that he 

did not know if he could. He acknowledged that the 

situation with his cousin could affect his ability to make 

a decision in this case. 

During subsequent questioning by Green’s counsel, this 

juror could not say whether there could ever be a case so 

heinous that he could impose the death penalty. Green’s 

counsel then asked the following questions: 

 Q. In this particular case, are you 

willing–if called as a juror–to listen to all of 

the evidence at the trial and then at the 

sentencing, and then come up with a decision as 

to whether to vote death or life imprisonment? 

Are you willing to do that as your duty, your 

civic duty as a juror? 

 A. I don’t want to, but I’ll do it. 

 Q. But you will? 

 A. Yeah. 

 Q. And you can come up with a decision? 

24
 A. I think I can. 

 The voir dire of prospective juror Williams concluded 

with the following exchange between him and the 

Commonwealth: 

 Q. Mr. Williams, I want you to look at 

Mr. Green there. 

 (The prospective juror complied) 

All right. With what you have told us, 

could you under any circumstances vote to 

give him the death penalty? I know it puts 

you on the spot and I apologize for it, but 

under any circumstances, could you vote to 

give him the death penalty? 

 A. Right now? I mean, right now, no. 

Q. I understand that. Can you imagine any–

is there any amount of evidence that I could 

put before you, would anything–with the way 

you feel now, would anything change your 

mind? 

 A. No. 

A prospective juror is properly excused for cause when 

that person’s views concerning the death penalty would 

substantially impair or preclude the performance of his or 

her duty in accordance with the court’s instructions and 

the juror’s oath. Schmitt v. Commonwealth, 262 Va. 127, 

139, 547 S.E.2d 186, 195 (2001), cert. denied, 534 U.S. 

1094 (2002); Barnabei v. Commonwealth, 252 Va. 161, 173, 

477 S.E.2d 270, 277 (1996). In applying this principle on 

25
appeal, we recognize that a trial court is in a better 

position to determine whether a particular juror would be 

impaired or prevented in performing the duties of a juror 

because that court has seen and heard the juror’s responses 

to relevant questions. Lovitt v. Commonwealth, 260 Va. 

497, 510, 537 S.E.2d 866, 875 (2000), cert. denied, 534 

U.S. 815 (2001). Thus, we accord deference to a trial 

court’s decision to retain or excuse a juror. Id.; 

Schmitt, 262 Va. at 139, 547 S.E.2d at 195. 

 Based on prospective juror Williams’ responses during 

voir dire, the circuit court correctly excused this juror 

for cause. The juror’s ability to follow the court’s 

instructions and to perform his duties in accordance with 

his oath was obviously impaired. In short, prospective 

juror Williams never indicated that he could listen to the 

evidence and actually reach a decision about whether to 

impose the death penalty or a term of imprisonment for 

life. See LeVasseur, 225 Va. at 583, 304 S.E.2d at 654 

(juror who stated, “I don’t know if I could be party to 

[the death penalty] or not[, t]here is some doubt in my 

mind[,]” was properly excused for cause). 

5. JUROR YOUNG 

 The Commonwealth asked the following question during 

the voir dire of prospective juror Young: 

26
 Q. You may hear evidence in the case of one or 

more crimes committed by this defendant on 

August 21st, 1998, other than the capital murder 

for which he is convicted--I mean for which he’s 

on trial. The [c]ourt will instruct you as to 

the purpose for which you can consider those 

other crimes. Would you be able to follow the 

Judge’s instructions in how you view that other 

evidence? 

Because of the Commonwealth’s misstatement “other than the 

capital murder for which he is convicted,” Green claims 

that the circuit court should have excused this juror for 

cause on the court’s own motion pursuant to Rule 3A:14(b). 

However, when the voir dire of juror Young was completed, 

the court asked both parties if they had any motions 

regarding this juror. Counsel for Green responded, “No, 

sir.” After each side exercised its peremptory strikes and 

juror Young was selected to serve in the case, the court 

asked counsel for both parties, “[I]s that your jury?” 

Green’s counsel stated, “Yes, sir.” The court then 

directed the clerk to administer the oath to the jury. 

Because Green failed to raise any objection either during 

the voir dire of prospective juror Young or before she was 

empanelled and sworn as a juror to hear the case, he has 

waived the argument that he now presents on appeal. Rule 

5:25; see also Beavers v. Commonwealth, 245 Va. 268, 278, 

427 S.E.2d 411, 418-19 (1993); Spencer v. Commonwealth, 238 

Va. 295, 306-07, 384 S.E.2d 785, 793 (1989). The fact that 

27
Rule 3A:14(b) authorizes a trial court to excuse a juror 

for cause on its own motion does not relieve a defendant 

from complying with the requirements of Rule 5:25. 

C. GUILT-PHASE ISSUES 

1. TESTIMONY OF FORENSIC PATHOLOGIST 

 Green asserts that the circuit court erred in 

overruling his motion for a mistrial that he made after the 

forensic pathologist, Dr. Abrenio, referred to his 

testimony “in the previous case.” The statement at issue 

is found in the following exchange between the Commonwealth 

and Dr. Abrenio: 

Q. When you say bleeding into the thoracic 

cavity, what are you referring to? 

A. I’m referring to the lethal wound to the 

lungs and blood flow into the chest cavity. 

Q. All right. Is that actually into the 

lung or into the space around the lung? 

A. Into the space around the lung. And 

this was lethal. The reason for this, as I 

testified in the previous case–shall I 

repeat? 

Q. The reason for this was what? You said 

That the blood– 

 In response to Green’s motion for a mistrial, the 

Commonwealth suggested that the court give a cautionary 

instruction to the jury, but Green rejected that 

suggestion. The circuit court then noted that the jurors 

28
knew that there had been a previous trial because they were 

being told that Green had been convicted of robbery.6 The 

court described Dr. Abrenio’s comment as “quick” and 

questioned whether the jury had paid any attention to it. 

 The court subsequently overruled the motion for a 

mistrial. In doing so, the court explained that great care 

had been exercised in selecting the jury in order to insure 

the jurors’ lack of knowledge regarding Green’s prior 

capital murder trial. The court then stated: 

This comment coming from a medical examiner 

testifying about the cause of death was a lead 

into what he was actually talking about, to his 

actual point. The [c]ourt would have to assume 

that the jurors know much more than voir dire 

indicated for this unsolicited phrase to have any 

effect, therefore, the motion for a mistrial is 

denied. 

 We agree with the circuit court’s conclusions. 

Contrary to Green’s assertion, Dr. Abrenio’s reference to 

his prior testimony did not signal the jury that Green had 

been previously convicted for the capital murder of Mrs. 

Vaughan. Thus, Green’s reliance on our decision in Barker 

v. Commonwealth, 230 Va. 370, 375, 337 S.E.2d 729, 733 

 6

 During opening statements, Green’s counsel advised 

the jury that Green had already been found guilty of 

robbery. Just before the Commonwealth rested its case, a 

stipulation was admitted into evidence, stating that, on 

June 22, 2000, in the Brunswick County Circuit Court, Green 

had been convicted of the August 21, 1998 robbery of the 

Vaughans’ grocery store. 

29
(1985) (holding that a venire person who knew of the 

defendant’s prior conviction of the same offense for which 

he was being retried could not sit as a juror), is 

misplaced. Although Dr. Abrenio did not elaborate on the 

context in which he had previously testified, the jury 

already knew, based on defense counsel’s opening statement, 

that Green had been convicted of the robbery of the 

Vaughans’ grocery store. With that information, the jury 

could have reasonably inferred that Dr. Abrenio was 

referring to his testimony in that trial, irrespective of 

whether such testimony would have been relevant. 

 The decision whether to grant a motion for mistrial 

lies within a trial court’s exercise of discretion. Burns 

v. Commonwealth, 261 Va. 307, 341, 541 S.E.2d 872, 895, 

cert. denied, 534 U.S. 1043 (2001); Beavers, 245 Va. at 

280, 427 S.E.2d at 420. “When a motion for mistrial is 

made, based upon an allegedly prejudicial event, the trial 

court must make an initial factual determination, in the 

light of all the circumstances of the case, whether the 

defendant’s rights are so ‘indelibly prejudiced’ as to 

necessitate a new trial.” Spencer v. Commonwealth, 240 Va. 

78, 95, 393 S.E.2d 609, 619 (1990) (quoting LeVasseur, 225 

Va. at 589, 304 S.E.2d at 657). Unless we can say that the 

30
trial court’s determination was wrong as a matter of law, 

we will not disturb its judgment on appeal. Id.

Considering Dr. Abrenio’s brief reference to his prior 

testimony in the context in which it occurred in this case, 

we cannot say that the circuit court’s refusal to grant a 

mistrial was wrong as a matter of law. Green’s rights were 

not “indelibly prejudiced.” Id. Thus, we will not disturb 

the court’s decision. 

2. ADMISSION OF EVIDENCE SEIZED DURING 

EXECUTION OF SEARCH WARRANT 

 At trial, Green objected to the admission of evidence 

seized during the search of his home, specifically the 

“makeshift target,” the empty cartridge casings, and the 

bullets found in the tree trunk. He argued that there was 

no connection between that evidence and the evidence that 

was recovered from the crime scene and from Mrs. Vaughan’s 

body during the autopsy. Thus, according to Green, the 

evidence found at his residence was irrelevant, and its 

probative value was substantially outweighed by its 

tendency to cause unfair prejudice. He now assigns error 

to the circuit court’s ruling allowing the admission of 

that evidence and makes the same argument on appeal. 

 One of the issues at trial was whether Green intended 

to shoot Mrs. Vaughan or whether the “pistol went off,” as 

31
Green stated to a police investigator. The issue of 

premeditation was a focal point in his counsel’s opening 

and closing remarks. The fact that the bullets found in 

the tree trunk and those recovered from Mrs. Vaughan’s body 

were fired from one weapon established not only a nexus 

between the evidence but also the fact that Green had 

previously fired the weapon he later used to shoot Mrs. 

Vaughan.7 That fact, along with the “makeshift target” and 

the empty cartridge casings, suggests that Green knew how 

to shoot that particular firearm and was thus pertinent to 

the issue whether the “pistol went off.” “Evidence is 

relevant if it tends to prove or disprove, or is pertinent 

to, matters in issue.” Clay v. Commonwealth, 262 Va. 253, 

257, 546 S.E.2d 728, 730 (2001). Thus, we conclude that 

the evidence seized during the search of Green’s house was 

relevant to the issue of premeditation and that the circuit 

court, therefore, did not abuse its discretion in admitting 

the evidence. 

 7

 Green had purchased a Lorcin L-25 semi-automatic 

pistol on July 13, 1998. Forensic testing on six empty 

cartridge casings found on the floor of the Vaughans’ 

grocery store indicated that four of those cartridge cases 

were sufficiently marked to conclude that “[f]irearms that 

produce class characteristics like those present on these 

cartridges cases include, but are not limited to, pistols 

with the brand names of Bryco and Lorcin chambered to fire 

caliber 25 Auto cartridges.” As a result of forensic 

32
4. SUFFICIENCY OF EVIDENCE REGARDING CAPITAL MURDER 

 At the close of the Commonwealth’s evidence, Green 

moved to strike the evidence regarding capital murder on 

the basis that the Commonwealth had failed to prove that 

the killing of Mrs. Vaughan was willful, deliberate, and 

premeditated. In support of his motion, Green relied 

primarily on his statement to a police investigator in 

which he had maintained that he only intended to commit a 

robbery and never meant to kill anyone. The circuit court 

denied Green’s motion, finding that the evidence 

established that Green entered the grocery store and “said 

nothing before shooting; that he killed, wounded and then 

robbed; and that he did not bother to wear a mask which he 

had prepared.” Green assigns error to the court’s ruling 

and makes the same argument here as he made before the 

circuit court. 

 Premeditation is an intent to kill that needs to exist 

only for a moment. Peterson v. Commonwealth, 225 Va. 289, 

295, 302 S.E.2d 520, 524 (1983). It is generally a factual 

issue. Schmitt, 262 Va. at 143, 547 S.E.2d at 197; Clozza 

v. Commonwealth, 228 Va. 124, 134, 321 S.E.2d 273, 279 

(1984). When reviewing the sufficiency of evidence on a 

___________________ 

testing, the same conclusion was reached regarding eight of 

the empty cartridge casings found in Green’s yard. 

33
question of fact, we consider the evidence in the light 

most favorable to the prevailing party below, in this case 

the Commonwealth, and accord that party’s evidence all 

reasonable inferences. Beavers, 245 Va. at 281, 427 S.E.2d 

at 421. 

 Here, the evidence showed that Green entered the 

Vaughans’ grocery store and shot Mrs. Vaughan without any 

warning. After his cousin seized the bank bag containing 

the cash and exited the store, Green walked over to where 

Mrs. Vaughan was lying on the floor and fired two more 

shots in her direction. Green did not leave the store 

until his gun was empty. These facts clearly establish 

premeditation. See Remington v. Commonwealth, 262 Va. 333, 

353, 551 S.E.2d 620, 632 (2001) (stabbing victim eight to 

ten times established premeditation), cert. denied, 535 

U.S. 1062 (2002). Thus, we find no error in the circuit 

court’s refusal to strike the Commonwealth’s evidence 

regarding capital murder. 

D. PENALTY-PHASE ISSUES 

1. TESTIMONY OF DEPUTY WESSON 

 During Deputy Kevin Wesson’s penalty phase testimony, 

he stated that, when he worked for a store selling 

electronic devices, Mrs. Vaughan inquired about having a 

security system installed at the Vaughans’ grocery store. 

34
According to Deputy Wesson, Mrs. Vaughan was concerned 

because of a robbery and murder that had occurred at a 

store in a neighboring county and was fearful that the same 

kind of crime could happen at the Vaughans’ store. 

 Green claims that this testimony violated his rights 

under the Fifth, Sixth, Eighth, and Fourteenth Amendments 

to the Constitution of the United States and the equivalent 

provisions of the Constitution of Virginia. However, Green 

did not object to Deputy Wesson’s testimony at trial. 

Thus, he is barred from raising this claim for the first 

time on appeal. Rule 5:25. 

2. SUFFICIENCY OF EVIDENCE OF VILENESS 

 AND FUTURE DANGEROUSNESS 

 Green asserts that the circuit court erred in 

overruling his motion to strike the Commonwealth’s evidence 

regarding both the “vileness” and “future dangerousness” 

predicates and also in overruling his motion to set aside 

the jury verdict fixing the death penalty. As to the 

“vileness” factor, Green argues that, since three of the 

four gunshot wounds sustained by Mrs. Vaughan were lethal, 

she died almost instantaneously without any other battery 

to her. He also relies on the forensic pathologist’s 

testimony that Mrs. Vaughan died within “seconds to 

minutes” after she was first shot. Thus, in Green’s view, 

35
the Commonwealth failed to prove either an aggravated 

battery to the victim or depravity of mind of the 

defendant. 

 He also contends that the Commonwealth failed to 

establish beyond a reasonable doubt that Green would 

probably commit criminal acts of violence in the future 

that would constitute a continuing serious threat to 

society. According to Green, the testimony of Dr. Sautter 

and Dr. Pasquale established that Green would not be a 

future danger if confined to prison. Green points to Dr. 

Sautter’s opinion that Green’s behavior would be 

appropriate in a maximum-security situation and to Dr. 

Pasquale’s statement that, in a prison setting, the risk of 

misbehavior by Green would be low. In asserting that the 

Commonwealth failed to establish the “future dangerousness” 

predicate, Green also relies on the fact that he had no 

record of convictions for criminal offenses that pre-dated 

the present offenses involving the Vaughans. Finally, he 

characterizes the Commonwealth’s evidence of unadjudicated 

prior bad acts as “‘benign’ run-ins with friends, family 

and employers.” 

 With regard to the “vileness” predicate, the term 

“aggravated battery” means “a battery which, qualitatively 

and quantitatively, is more culpable than the minimum 

36
necessary to accomplish an act of murder.” Smith v. 

Commonwealth, 219 Va. 455, 478, 248 S.E.2d 135, 149 (1978). 

Contrary to Green’s assumption that Mrs. Vaughan died 

instantly, the forensic pathologist stated that he could 

not determine in what sequence Green had fired the four 

gunshots at Mrs. Vaughan. He did opine, however, that the 

bullet that penetrated two lobes of her right lung caused 

hemorrhaging in the thoracic cavity, the effect of which he 

likened to suffocation. “A killing inflicted by multiple 

gunshot wounds . . . when there is an appreciable lapse of 

time between the first shot and the last, and when death 

does not result instantaneously from the first” constitutes 

an “aggravated battery.” Sheppard v. Commonwealth, 250 Va. 

379, 392, 464 S.E.2d 131, 139 (1995). Likewise, multiple 

gunshot wounds, any one of which could have been fatal, 

constitute an “aggravated battery.” Walker v. 

Commonwealth, 258 Va. 54, 71, 515 S.E.2d 565, 575 (1999). 

 We have construed the term “depravity of mind” to mean 

“a degree of moral turpitude and psychical debasement 

surpassing that inherent in the definition of ordinary 

legal malice and premeditation.” Smith, 219 Va. at 478, 

248 S.E.2d at 149. Green’s conduct established “depravity 

of mind” when he repeatedly shot Mrs. Vaughan in front of 

her husband and left them both to die merely so he could 

37
rob them. The killing of Mrs. Vaughan was unprovoked and 

Green showed no mercy for her when he walked back over to 

where she was lying on the floor and emptied his gun at 

her. See Walker, 258 Va. at 72, 515 S.E.2d at 575-76. 

Thus, we conclude that the circuit court did not err in 

refusing to strike the Commonwealth’s evidence or to set 

aside the jury verdict finding the aggravating “vileness” 

factor. 

 As to the “future dangerousness” predicate, we reach 

the same conclusion. The circumstances surrounding the 

murder of Mrs. Vaughan, including the shooting of Mr. 

Vaughan, are alone sufficient to establish Green’s future 

dangerousness. See Code § 19.2-264.4(C) (future 

dangerousness can be based on “the circumstances 

surrounding the commission of the offense”); Kasi v. 

Commonwealth, 256 Va. 407, 423, 508 S.E.2d 57, 66 (1998). 

In addition, Cleaton, an acquaintance of Green, testified 

that Green had threatened to rob and kill him and had shot 

in Cleaton’s direction on one occasion even though Cleaton 

had specifically asked Green not to do so. Cleaton also 

stated that he had heard Green threaten to rob a man 

selling ice cream. Finally, several correctional officers 

who had supervised Green’s incarceration testified about 

38
Green’s disruptive behavior and his threats to the 

officers. 

E. ISSUES ALREADY DECIDED 

 Several of Green’s assignments of error concern issues 

that this Court has already decided adversely to the 

position he now advances. Green has offered no reason why 

we should depart from our precedents. Thus, we affirm our 

prior holdings and find no merit in the following 

assignments of error: 

 1. The trial court erred in overruling the defendant’s 

motion to declare Virginia’s death penalty statutes 

unconstitutional. Green makes only a generalized argument 

on this issue. We have rejected numerous specific 

challenges to the constitutionality of Virginia’s death 

penalty statutes in Beck v. Commonwealth, 253 Va. 373, 387, 

484 S.E.2d 898, 907 (1997); Breard, 248 Va. at 74-75, 445 

S.E.2d at 675; Mickens v. Commonwealth, 247 Va. 395, 403, 

442 S.E.2d 678, 684 (1994); Satcher v. Commonwealth, 244 

Va. 220, 227-28, 421 S.E.2d 821, 826 (1992); Watkins v. 

Commonwealth, 238 Va. 341, 352, 385 S.E.2d 50, 56 (1989); 

Spencer, 238 Va. at 280-81, 384 S.E.2d at 777-78; and 

Smith, 219 Va. at 471-79, 248 S.E.2d at 145-49. 

 2. The trial court erred in overruling the defendant’s 

motion for a bill of particulars. Initially, we note that 

39
the circuit court granted Green’s motion in part. To the 

extent that he now argues that he was entitled to a bill of 

particulars providing a “narrowing” construction of the 

“vileness” predicate and listing all the evidence that the 

Commonwealth intended to rely upon at sentencing, we have 

rejected such arguments in Goins v. Commonwealth, 251 Va. 

442, 454, 470 S.E.2d 114, 123 (1996); and Strickler, 241 

Va. at 490, 404 S.E.2d at 233, respectively. 

 3. The trial court erred in overruling the defendant’s 

motion to preclude the Commonwealth from using evidence of 

unadjudicated acts at sentencing. Although the circuit 

court denied Green’s motion, the court stated in its order 

that it would review each unadjudicated act for its 

relevance to the issue of future dangerousness and its 

probative value versus its prejudicial effect. This Court 

has rejected Green’s arguments in Walker, 258 Va. at 64-67, 

515 S.E.2d at 571-73; Williams v. Commonwealth, 248 Va. 

528, 536, 450 S.E.2d 365, 371 (1994); and Stockton v. 

Commonwealth, 241 Va. 192, 209, 402 S.E.2d 196, 206 (1991). 

 4. The trial court erred in denying the defendant’s 

motion for additional peremptory challenges. We have 

rejected this claim in Spencer, 240 Va. at 84, 393 S.E.2d 

at 613; Buchanan, 238 Va. at 405, 384 S.E.2d at 767; and 

40
O’Dell v. Commonwealth, 234 Va. 672, 690, 364 S.E.2d 491, 

501 (1988). 

 5. The trial court erred in denying the defendant’s 

motion for that court to conduct a proportionality review. 

As we have already ruled, nothing in Code § 17.1-313(E) 

requires a trial court to conduct such a review, Bailey, 

259 Va. at 742, 529 S.E.2d at 581, and the circuit court in 

this case did not abuse its discretion in refusing to do 

so. See id.

 6. The trial court erred by overruling the defendant’s 

motion to introduce evidence regarding conditions of 

imprisonment for life in rebuttal to the Commonwealth’s 

evidence of the defendant’s future dangerousness. We have 

rejected all Green’s arguments on this issue in Bell, 264 

Va. at 199, 563 S.E.2d at 713; Burns, 261 Va. at 338-40, 

541 S.E.2d at 892-93; Lovitt, 260 Va. at 517, 537 S.E.2d at 

879; and Cherrix v. Commonwealth, 257 Va. 292, 309-10, 513 

S.E.2d 642, 653-54 (1999). We further note that the 

circuit court denied Green’s motion only “to the extent 

that it exceeds evidence of [Green’s] previous adjustment 

to incarceration.” 

F. STATUTORY REVIEW 

 As with every case involving the imposition of the 

death penalty, we must determine whether the death sentence 

41
in this case was imposed under the influence of passion, 

prejudice, or other arbitrary factors. Code § 17.1-

313(C)(1). Green does not claim that any specific passion 

or prejudice affected the sentencing decision. Upon 

reviewing the record, we find no evidence that any such 

factor was present in this case or influenced either the 

jury’s or the circuit court’s sentencing decision. 

 We are also required by the provisions of Code § 17.1-

313(C)(2) to determine whether Green’s sentence of death is 

“excessive or disproportionate to the penalty imposed in 

similar cases, considering both the crime and the 

defendant.” Because of the statutory directive that we 

compare this case with “similar cases,” we have focused on 

cases in which an individual was murdered during the 

commission of robbery and the death penalty was imposed 

upon a finding of both aggravating factors. Our 

proportionality review includes all capital murder cases 

presented to this Court for review and is not limited to 

selected cases. See Burns, 261 Va. at 345, 541 S.E.2d at 

896-97. Based on that review, we conclude that Green’s 

sentence of death is not excessive or disproportionate to 

sentences generally imposed in this Commonwealth for 

capital murders comparable to Green’s murder of Mrs. 

Vaughan, and we cite the following cases as examples: 

42
Akers v. Commonwealth, 260 Va. 358, 535 S.E.2d 674 (2000), 

cert. denied, 531 U.S. 1205 (2001); Stout v. Commonwealth, 

237 Va. 126, 376 S.E.2d 288 (1989); Poyner v. Commonwealth, 

229 Va. 401, 329 S.E.2d 815 (1985); and Edmonds v. 

Commonwealth, 229 Va. 303, 329 S.E.2d 807 (1985). 

 In reaching this conclusion, we have considered 

Green’s argument that the death penalty in this case is 

disproportionate because the Commonwealth failed to show 

that Mrs. Vaughan endured prolonged suffering before she 

died and because Green had no criminal convictions prior to 

this offense. He thus claims that this case involved “less 

aggravation” than many other cases in this Commonwealth in 

which death sentences have been imposed. We do not agree 

and reiterate that the purpose of our proportionality 

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). We do not “insure complete symmetry.” Id.

III. CONCLUSION 

 For the reasons stated, we find no error in the 

judgment of the circuit court or in the imposition of the 

death penalty. We also perceive no reason warranting 

commutation of the death penalty in this case. Thus, we 

will affirm the judgment of the circuit court. 

43
Affirmed. 

44