Satcher v. Commonwealth

Michael Charles Virginia

Commonwealth Record Nos. 920247 and 920248 18, 1992

September Present: All the Justices McCue for Richard J. Youngs; appellant. John C. Toone, Sue (Mary Terry, Assistant General Attorney

Katherine B. General, brief), on for Attorney appellee. of the Court. CARRICO delivered opinion

CHIEF JUSTICE trial conducted to Code In the first of a bifurcated pursuant phase -264.4, Michael Charles Satcher and a convicted jury 19.2-264.3 §§ and of Deborah battery, attempted rape assault and robbery, murder of Ann Elizabeth Abel and the and robbery, capital rape, fixed at The Satcher’s Borghesani.1 jury punishment imprisonment ten months for the offenses against for life twelve plus years of life for the Ms. Abel and at two terms imprisonment noncapital trial, offenses Ms. In the second Borghesani. phase against fixed for the of Ann killing Satcher’s jury punishment death, at based both Borghesani statutory upon predicates “future and “vileness.” dangerousness”

After a considering postsentence report prepared by probation officer, 19.2-264.5, Code the trial court the sentences imposed § fixed Satcher is here for automatic review of his death jury. sentence, and we have consolidated that review with his appeal his murder conviction. Code 17-110.1. We also certi- have capital § fied from the Court of for the Satcher’s convictions Appeals offenses Abel and the Ms. Ms. offenses against noncapital against Code We have the entire matter Borghesani. given 17-116.06. pri- § on our Code ority docket. 17-110.2. §

FACTS The incidents Abel and Ms. Ms. both involving Borghesani 31, 1990, occurred on March on a that runs bicycle path alongside Lee the Air Force in the Ros- Highway, Association past building, slyn section of at this location is Arlington County. bicycle path hidden from the view of motorists and along pedestrians proceeding Lee a “sound barrier wall” some fifteen feet Highway by twenty in height. before 7:00 on March Ms. Abel was her riding

Shortly p.m. and had the Air Force Association bicycle along just path passed son in the attempted Under Code forcible commission § 18.2-31(5), sodomy” of, constitutes subsequent “willful, capital to, deliberate, rape murder. or attempted rape premeditated or forcible killing sodomy any per or when she a man saw toward her. As

building walking they passed another, knew, one eye “made contact.” The next she thing she bicycle, off her on her stomach into a ditch pulled dragged that ran alongside bicycle path, “jumped from behind.” time Ms. Abel turned her her

Every head assailant plead him, or to look at he get would hit her the head and face. She told him there was her and money him to purse begged “go get her, that” not “hit and he anymore.” As continued to beat he [her] to her managed get down.” “pants part way Suddenly, Ms. Abel’s assailant what he was It “stopped doing.” Polemani, turned out another Mark cyclist, to happened pedal the scene and saw a mountain “off past bike the bike He trail.” also a observed man down kneeling off the and “right when he path,” saw the man “throw a to the he and punch ground,” off stopped got Polemani, his When the man bicycle. saw he Ms. up Abel’s picked him, and ran. purse Polemani but he pursued escaped. and,

Polemani returned to the scene to his retrieve for the bicycle time, first saw Ms. Abel. Her her face and were sweatshirt covered with blood her and her were down at “pants panties her ankles.” He walked her to an and knocked apartment complex called, on a door. The were police and Ms. Abel was to transported later, a Several her hospital. was found at a days purse nearby park- lot. It contained ing her but personal belongings, no money. At 8:00 on the same p.m. Ann was to be the evening, Borghesani of honor at a guest belated for birthday given her a friend party by who lived area Crystal City Arlington Ms. County. lived in Borghesani an at From apartment Rosslyn. her it apartment, a was about five minute walk the Air along bicycle past path, station, Force Association to a Metro where building, Ms. could have taken a train Borghesani to Crystal City. Borghesani Ms. was last seen her alive about 7:10 room- p.m. mate, Susan Cohen. Ms. Cohen As left the to dinner apartment go fiance, with her Ms. Borghesani was some ironing clothes. Borghesani Ms. appeared never at the When she birthday party. search, and, failed to her friends appear, instigated when they her, could find called the police.

Ms. Borghesani’s was found the next at the bottom body morning of a stairwell the Air Force Association She was nude building. down,” “from her midsection been she had and her raped, body wounds, bore inflicted with a multiple many having weapon blade. “she rings missing, earrings Her were was sharp-tipped from her ears.” One had been wearing night ripped before] [the her on the Later that bicycle day, purse her shoes was found path. Abel’s at the lot where Deborah purse was found same parking Abel’s, and, it contained no money. found like Ms. 18, 1990, months after the four and one-half

On August murder, on another bicycle path Satcher was observed Borghesani He was arrested for offenses he had committed in Arlington County. Borghesani was said to him day. Nothing concerning rape murder, but, he being headquarters, as was transported police ‘ to frame for a he told an officer that the were ‘trying police [him] murder or or a something rape something.” car, an awl.2

In the of Satcher’s found glove police compartment the murder. In the Satcher admitted he owned the awl on the date of medical examiner’s the awl was “consistent with opinion, [Ann wounds.” Scientific tests matched semen removed Borghesani’s] from Ms. with blood taken from Satcher. Borghesani’s body

ISSUES PREVIOUSLY RESOLVED below, In a motion filed sought “prohibit impo Vir sition of the death him on the that the penalty against grounds Sixth, death statutes and Four ginia penalty Eighth [violate] teenth Amendments of the United States Constitution and Sections Nine and Eleven of the Constitution of The trial Eight, Virginia.” motion, court denied the and Satcher the denial as error. assigns All the Satcher makes on arguments appeal support motion have been answered decisions of this Court. He by previous has not advanced sufficient reason to from the justify departure views and we can of none. Accord- previously expressed, perceive we will reaffirm our earlier decisions and Satcher’s ingly, reject Satcher makes and the decisions answer- arguments. arguments them are as follows: ing

A. “vileness” for of the death Virginia’s predicate imposition is as and the “future dan vague penalty unconstitutionally applied is gerousness” jury’s unreliable because predicate vague not limited M. by discretion is Answered guided any way. Commonwealth, 455, 476-78, 135, Smith v. 219 Va. 248 S.E.2d denied, (1978), (1979). 148-49 cert. 441 U.S. 967 ^[2] An awl is a pointed tool used to make holes in wood, leather, or other material.

228

B. Due is violated process the use of evidence of by unadjudi cated acts of misconduct to “future prove dangerousness” without an instruction of such acts requiring proof a reasonable beyond Commonwealth, 192, 210, doubt. Answered Stockton v. by 241 Va. 196, 206, denied, _, 402 S.E.2d cert. 502 U.S. 112 S.Ct. 280 (1991).3

C. The death is penalty imposed arbitrarily discriminatorily where, case, as in this the victim is white and the defendant is black. Commonwealth, 307, 335, Answered by Townes v. 362 650, denied, S.E.2d (1987), 666 cert. (1988). 485 U.S. 971 D. The death is excessive and penalty repugnant society’s and, hence, standards of evolving is violative decency of the Eighth Amendment’s cruel and prohibition against unusual punishment. Smith, Answered M. Va. by 219 at 248 S.E.2d at 148. E. The manner in which the receives evidence and instruc jury tions on the is subject mitigation constitutionally improper. Commonwealth, Answered 490-91, Watkins v. by Va. 331 denied, S.E.2d (1985), cert. (1986). 475 U.S. 1099 F. The death statutes are penalty unconstitutional as applied because a defendant cannot secure either a meaningful appellate review of the of “vileness” and predicates “future dangerousness” or an objective determination whether his sentence product or is passion prejudice to the disproportionate penalty imposed in similar cases. Answered R. Smith v. Va. 243, 253, 871, 876, denied, 389 S.E.2d cert. (1990).4 498 U.S. 882

PRETRIAL MATTERS Motion Trials Separate for motion, Satcher By pretrial trials of the offenses sought separate Deborah Abel and those Ann involving After involving Borghesani. beyond which would have told the were At the jury proved beyond a was told it was the Commonwealth’s reasonable sentencing doubt, a reasonable phase, jury and this was sufficient. the trial disregard doubt. court refused to The evidence of other criminal offenses unless they refusal was not error. In another burden to grant Satcher’s prove “future proffered dangerousness” Instruction instruction, E, 5:26. We refused to allow him to submit a brief in Satcher also contends he was denied reject this contention as meritless. excess of meaningful appellate fifty-page review limitation fixed because this Court Rule assigns motion. Satcher denied the the trial court argument, error. denial as here, that all offenses 10(b) 3A: Rule provides As pertinent ‘ does time ‘if justice be tried at one an accused may against

pending offenses meet the require trials and . . . the separate require offenses is 3A:6(b), 3A:6(b).” joinder Under Rule ments of Rule transaction, or on the same act or if “are based on permissible constitute that are connected or acts or transactions two or more or of a common scheme plan.” parts tri- of justice required separate that the “interests argues

Satcher in both cases” and consolida- was the issue key als because identity evidence to take weak identity “allowed the Commonwealth tion there was no an effort to identify although from two cases in [him] women.” Further- attacked both evidence that the same assailant of a more, not connected or part “the offenses were Satcher says, concludes, Hence, the denial of Satcher scheme or common plan.” a violation of Rules for trials constituted his motion separate 10(b) 3A:6(b). 3A: the evidence and the reason

We with Satcher. From disagree therefrom, it clear that the two or be drawn able inferences to a constituted common involved in this case parts more acts time, connected in place, and were closely scheme plan commission, the use of a trial. single all of which means of supports hour and about one-half occurred within a few yards The two crimes removed from the forcibly bicycle of each other. Both victims were In barrier wall.” concealed behind the “sound at a location path instance, disrobed. the victim beaten and brutally partially each was — and robbery the assailant to commit rape The criminal intent of — of each victim was the same in both situations. purse stolen, the same found in approximately and the two were purses location, from both. money missing with only

Hence, 3A:6(b) Rule trial under for single requirements And, argument to Satcher’s contrary are satisfied in this case. identity to take weak “allowed the Commonwealth consolidation [him],” the evi in an effort to identify evidence from two cases as the dence, Satcher demonstrate established infra, as we will Therefore, degree certainty. in both cases with high assailant does not 10(b) argument “interests of justice” Rule 3A: Satcher’s balance, Indeed, favored trying the interests of justice stand up. in a trial. single against all the offenses 230

Furthermore, is argument solely Satcher’s based separate-trial the trial alleged court’s error in the of Rules upon application However, 3A:10(b) 3A:6(b). and error ... in the application “[a]n Rule or of a of Court not constitute interpretation will reversible error unless the substantive of a have been affected.” rights party Commonwealth, 323, 313, 688, Foster v. 6 Va. 369 S.E.2d 694 App. Hence, (1988) 3A:2(a)).5 Rule of Rules (citing misapplication 10(b) 3A:6(b) 3A: would not constitute reversible error unless And, affected Satcher’s substantive we misapplication rights. as decide infra, Satcher’s substantive would not have been rights because, murder, affected in a trial separate of Ann Borgehsani’s evidence of the offenses Deborah Abel would have involving been admissible. evidence of other is a

Generally, offenses inadmissible in criminal but there are prosecution, well-established exceptions. “[Ejvidence of similar acts is to show a admissible common scheme, or where there a design, is‘such concurrence of com plan mon features that the various acts are naturally be as explained caused a of which by general are individual manifesta plan Commonwealth, 857, 870-71, tions.’” McWhorter v. Va. 63 191 20, (1951) (citations omitted). S.E.2d 26 Evidence of other offenses is admitted it if shows conduct of the accused feeling toward his victim ... or if it tends to element relevant of the prove any offense Such evi- charged. motive, dence is in cases where the permissible intent or involved, of the is knowledge accused or where the evidence is connected with for or leads the offense which the accused up Also, is on trial. of other testimony crimes admissible where the other general crimes constitute scheme of part which the crime is a charged part. 269, Commonwealth, 272, 802,

Kirkpatrick 176 S.E.2d (1970). 805

“Evidence when of other crimes is admissible it tends establish a common design, embracing scheme series plan, crimes, crime to each so related other that including charged, affect substantive ^[5] Rule 3A:2(a) reads as rights shall follows: constitute reversible error. “Errors, defects, irregularities or variances that do not

231 Torcía, Whar- Charles E. the other.” tends to prove of one proof However, 1985). for such (14th ed. Evidence ton’s Criminal § admissible, must its outweigh value its probative to be evidence Va. Coe v. effect. prejudicial (1986). S.E.2d McWhorter, Kirkpatrick, set forth the standards

Guided Wharton, Abel offenses would the evidence of the think that we murder been, Ann Borghesani’s in a trial of have admissible separate Coe, evidence that, value of such the probative and compatible Hence, sub effect. Satcher’s its would have outweighed prejudicial of the trial court’s were not affected by application stantive rights trials, 3A:6(b) in its decision to 10(b) deny separate Rules 3A: and resulted from that decision. and no reversible error be tried “[wjhether different offenses should In the final analysis, of a trial that rests the sound discretion is a matter within separately 26, 33, 599, Commonwealth, S.E.2d 240 Va. 393 court.” v. Cheng its discretion (1990). hold that the trial court did not abuse We Satcher’s motion for trials.6 denying separate Motion Bill Particulars for of ten items a motion for a bill of listing Satcher filed particulars, the offenses concerning which information desired upon that the Satcher asserted in motion Deborah Abel. involving the cause him did not “inform indictments returned against [him] the offenses with which he charged.” and nature of [was] a bill of filing voluntarily by par- The Commonwealth responded information was five of the items which ticulars covering upon to the five denied the motion with respect The trial court requested. court erred. items. Satcher contends the trial remaining it is sufficient if We with Satcher. An indictment disagree character of the offense “notice of the nature and the accused gives Commonwealth, v. so he can make his defense.” Wilder charged Where, here, 147, 411, 145, an (1976). as 217 Va. 225 S.E.2d standard, a is not required. indictment meets that bill particulars 293, Commonwealth, 564, 569, 205 Va. 138 S.E.2d 296-97 Ward v. inapposite. apart S.E.2d at 522. 6Godwin v. and “no evidence linked or connected There, Commonwealth, two robberies in issue occurred five 6 Va. App. 118, one robbery 367 S.E.2d days Id. at with the other.” and three (1988), cited and one-half miles Satcher, 122, 367 (1964); 1019, 1024, Tasker v. 121 S.E.2d Strickler, (1961). 462-63 241 Va. at 404 S.E.2d at 233.

Motion Discovery for Satcher also filed a motion for discovery the offenses concerning involving motion, Deborah Abel. In 13 of the Paragraph Satcher information, sought certain to the “pursuant rulings Brady Maryland[, 373 (1963)].” U.S. 83 The trial court denied the motion (d), (e), to items respect (f) Paragraph these three items are of an subjects of error. assignment

In (d), item Satcher requested “descriptions provided by any witness from the [differing] physical characteristics of the Defen below, dant.” During that, argument prosecutor represented pur suant to an file “open his discovery” policy office was observing case, he had furnished Satcher “all that were descriptions given of the defendant.” Upon strength this representation, the trial court (d). denied item We find no error in this action of the trial court. (e)

In items (f), statement or requested “any action by witness ... that such indicating witness was unable to identify was uncertain about his or her [or identification of] Defendant as the of these perpetrator offenses.” with the Agreeing prosecutor that the information requested (e) (f) items and would be if the exculpatory “only witness it [thought] was somebody than Satcher offenses],” who committed [other the the trial court denied (e) (f). items and We find no error in this action of the trial

court and no violation with Brady of the information respect any (d), Satcher in sought by (e), (f). items GUILT PHASE Selection Jury Voir Dire Examination Satcher contends that the trial court erred in to ask refusing pro- spective jurors following question: we have a situation in which a woman is young raped, [I]f robbed a armed with person stabbed deadly weapon,

233 murdered,... of situ- times, in that type beaten twenty-one of the death believe that imposition do you ation sentence? be the most appropriate would penalty 657, 653, Commonwealth, 222 Va. 283 v. In Patterson 212, (1981), asking prospec defense counsel proposed 214 S.E.2d ordina “that the death believed they penalty tive whether jurors And in murder.” for the crime capital rily proper punishment 757, Commonwealth, S.E.2d 238 Va. 384 Buchanan v. denied, (1990), the pro U.S. 1063 (1989), question cert. “that a death sen believed jurors was whether prospective posed murder.” We for capital tence is the only appropriate punishment proposed of both rejection questions. question approved identical, See Mueller and we its rejection.7 here is nearly approve 386, 400, (1992). 422 S.E.2d v. DNA Bias erred in to strike for refusing contends the trial court Satcher concern- “who had opinions cause prospective jurors preconceived to strike these of DNA evidence.” The refusal ing reliability to the shifted the burden of proof jurors, says, prospective defense. examination, he thought Earl Barbee stated that

On voir dire be accu- DNA “sort of like a “would pretty fingerprint” con- and Bruce Walch said that were rate.” Robert Goldman have to form identification and would vinced is a reliable DNA “is William stated that DNA be convinced of its unreliability. Gay it have to be convinced and that he would same as fingerprint” was not a reliable means of identification. the trial court erred in to strike refusing

We do not think that dur- observed for cause. As jurors prosecutor these prospective Bar- juror motion to strike prospective on Satcher’s ing argument They with blank minds. bee: do not come into juries totally “People must come in with some knowledge.”

Court whether, penalty, from In a recent the one at issue in held that it is error in a no if they matter what the facts case, find Morgan the accused Morgan. capital Illinois,_U.S._, may guilty, Hence, be. case they Morgan to refuse to ask question would is automatically inapposite. proposed by 112 S.Ct. 2222 prospective vote to Satcher is (1992), voir dire jurors on impose quite the death Supreme different As be in will demonstrated the of section this opinion infra Evidence,

entitled DNA Admissibility both this Court and the of of Assembly General have considered the whether Virginia question is a DNA reliable means of identification and both have settled the of In question reliability. stating favor that considered DNA reliable, evidence the knowl prospective jurors merely displayed of a conclusion that is of the law of Com edge part established this Hence, monwealth. their such of did not dis possession knowledge them on from service the qualify jury. Penalty to Death

Predisposition were examined voir of Prospective jurors on dire four. groups Defense counsel asked the members of each the same group general viz., question, whether a who found person guilty type offense with which Satcher was charged should receive the death that penalty. Satcher contends the trial court erred in refusing to Barbee, Sulak, strike for cause five Earl jurors, prospective Agnes Goldman, Lawson, Robert Angela and Ronald Tuttle.8 Satcher says all that five indicated a toward predisposition imposition death penalty. circumstances,” said

Prospective Barbee “it on the juror depends whether, for example, the had committed murder more than accused once, that, circumstances, and he indicated under such the defense would have to convince him that the death should not be penalty exist, course, Such did imposed. circumstances not in Satcher’s case. Barbee also said that Commonwealth would have to prove to him that “the crime sowas that it gruesome would require death penalty.” stated she

Prospective Sulak that with another juror agreed pro- Satcher, one not spective juror, who said that she was challenged by necessarily” toward the death disposed imposing penalty. “[n]ot qualified same render a verdict based on the Although court’s refusal penalty whether he could about it.” The trial [his] Satcher also age based on the evidence decision-making him. Tuttle as the two victims in to exclude Tuttle on challenged initially “render judge indicated that process,” indicated his [his] Ronald Tuttle on the evidence decision as to this [was] he and on the gave belief case, this ground presented similarity an he that Tuttle could “set aside guilt unequivocal could ground instructions.” We innocence or [him] similarity that, ages stand indifferent “yes” response no matter how because would have “some influence find [his] decision his he daughter’s no error in had a [his] [he] to the daughter feelings might as to the question age cause. trial feel dis When defense to she predis- counsel whether pressed by say Sulak that posed, replied would depend.” “[i]t that, juror Goldman stated the facts in Prospective considering counsel, Satcher’s case as detailed defense he would to be by have “some other given factors to convince that death penalty [him] the should be not But Goldman indicated he did believe imposed.” that “every who has been convicted of should person murder receive the death And when asked whether he would be penalty.” the towards the death under facts “predisposed imposing penalty” case, of Satcher’s he said on the facts.” depends “[i]t Tuttle said the juror instructions that Prospective depends “[i]t the would what the were in the law.” He Judge give, guidelines deserved, stated further that “if death penalty yes[, [the is] he] [it],” would but his was not so that he would impose opinion strong “a carry in front of the And he it sign” courthouse. said was picket ‘ not his belief that the death was ‘the penalty only appropriate pun- ishment.”

Prospective juror Lawson said on the situation.” depends “[i]t whether, Satcher’s, When asked defense counsel in like cases she would be towards the death “predisposed imposing she penalty,” in the replied affirmative. But she indicated she would immediately have no in that difficulty deciding life was the imprisonment appro- in priate “any of murder.” punishment type Indeed, commitment, in this latter Lawson making joined other four jurors in also indicated that prospective who question, have they would no in that life difficulty deciding imprisonment was an all of murder. And five appropriate punishment type indicated that could consider prospective jurors they evidence is, mitigation, evidence used to convince them that death is not punishment. appropriate addition, In all five indicated that their views prospective jurors the death would not affect their to render concerning penalty ability an verdict on the issue or indi- impartial guilt innocence. All five that, cated if the found jury could follow the guilty, they court’s instructions concerning for Commonwealth necessity prove aggravating factors “future dangerousness” “vileness” before the death All could be five penalty imposed. indicated at were unaware of all” would which “anything affect their ability render fair and verdict on the issue impartial of guilt or innocence.

Furthermore, views about all five their imposition prefaced “it with the expression, depends.” death penalty cautionary And, five, to all the trial confidence expressed court respect instructions, to stand indifferent to their follow the court’s ability cause, to render a fair verdict. court, trial an we must deference to the give As appellate retain or venire court’s decision whether to exclude individual trial men because the court “sees and hears Wain juror.” Witt, (1985); v. accord wright Spencer U.S. 850, 563, 572, Commonwealth, (1989), 238 Va. 385 S.E.2d 855 denied, [1093], (1990) U.S. 110 (Spencer cert. 493 S.Ct. 1171 693, Commonwealth, 672, III); 364 S.E.2d O’Dell v. reason, 491, 503, denied, (1988). For cert. 488 U.S. 871 that not be on the trial court’s decision in that will disturbed regard IV, 240 Spencer absent a of “manifest error.” showing appeal 94, Va. at S.E.2d at 393 619. be court in determining to trial standard applied his retain a venireman on the is whether

whether to jury panel to court voir examination indicate answers dire during or substantially impair that “would something per prevent with instruc formance of his duties as a accordance his juror 38, Texas, (1980); tions oath.” v. 448 U.S. 45 and his Adams 543, Commonwealth, 549, Va. 364 accord Turner v. 234 O’Dell, 486, denied, 483, (1988); 486 1017 S.E.2d cert. U.S. 695, 234 364 S.E.2d at 504. Va. at 385, 391 Va. 397 S.E.2d Eaton denied, U.S._, (1991). (1990), 112 S.Ct. 88 cert. court to that the trial We in the record indicate nothing discern the five this standard in that deciding prospective failed observe toward death penalty; were not jurors predisposed imposing indeed, reaching indication that record gives every [before “[t]he attention trial close and conscientious judge gave decision] IV, 240 Va. at the veniremen.” Spencer the demeanor of therefore, error that there is manifest at We cannot S.E.2d 618. say, veniremen. decision to retain the five in the trial court’s Prospective Middle Juror Herbert dire his an Middle stated voir that son-in-law was was other County friendly he with Arlington policeman police officers. Middle admitted county Initially, possibil- “[i]t’s that his officers cause ity” “might relationship police [him] more to their than to some- give testimony give weight might [he] know,” one that did and he asked to be excused from ser- [he not] vice on the jury. indicated, however, he

Middle had not discussed Satcher’s case with not his son-in-law had reached an opinion Satcher’s or concerning innocence. Middle said he “would guilt have to weigh testimony for police [the officers] [himself] find out the accurate He also said he giving testimony].” [who sides,” would “weigh facts both and he affirma responded to the trial he tively judge’s question whether would “make [his] evidence]; based on decision not because may [the may [he] know He somebody.” also to the responded “[r]ight” judge’s ques tion whether could he “stand indifferent to this cause.” Under these circumstances, we say cannot there is manifest error in the trial court’s refusal to strike Middle for cause.

Prospective Oppenheimer Juror The trial court dismissed Michelle as a Oppenheimer pro juror because she stated on voir spective dire that she “could not take honestly oath a if ... it would juror] to require [the] [as [her] the death Satcher support penalty.” contends the court’s action “constituted a violation of to a fair and right impartial jury.” [his]

We with Satcher. disagree Ms. indicated Oppenheimer clearly that her “views‘would the substantially prevent impair perform- ance of duties as a in accordance with instructions juror [her] [her] O’Dell, and oath.’” 234 atVa. 364 S.E.2d at 504 (quot- [her] Texas, (1980)). Adams v. 448 U.S. trial ing the Accordingly, court did not err Ms. dismissing Oppenheimer.

Alternate Jurors Before selection the trial and counsel jury began, court agreed that would be from which each side twenty-four persons empaneled, five, would strike and the the that fourteen would hear all remaining rested, had two further that when both sides agreed evidence. It was excused, The trial be twelve deliberate. would leaving jurors at excused would be selected that the two to be jurors court ruled random. sworn, trial, before the were one of the first of day jurors

On the ruled that the ill and was excused. trial court fourteen became that, the was concluded but and when evidence trial should proceed random, at one to be selected before deliberations began, juror, then to strike the entire would excused. Satcher moved panel be motion, denied the finding a new one. The trial court to select unreasonable and unnecessary.” further at this “any delay point chal the defense exercised its peremptory Satcher asserts that He of a of fourteen. in reliance the lenges participation panel upon excused, that, trial ill ‘the court abused when the argues juror . . . the defense either add another allowing its discretion . . . the voir dire . . . or dismiss juror through separate procedure con the to choose another fourteen.” Satcher and allow jury parties of cludes the trial “violated the Swain spirit court’s action Alabama, (1965) that the U.S. 202 ‘which cautions right shall not be one’s challenges impaired.’” peremptory trial He does not the question We with Satcher. disagree And, as he acknowledges, court’s action ill excusing juror. under circumstances was matter for of proceeding manner cannot perceive of the trial court’s discretion. We exercise from the trial court’s have suffered any may prejudice action, on the we are unable to find abuse of discretion Hence, argument subject. we Satcher’s reject court’s part.

DNA Evidence Reliability Ann a sample removed Borghesani Semen from body an to DNA DNA is analysis. blood subjected of Satcher’s were acid. deoxyribonucleic for the term abbreviation DNA, carries coded genes, the active substance animals, living in every thing: plants, messages heredity humans, bacteria, the code-carry- In microorganisms. and other nucleus, have including all cells that a DNA occurs in ing cells, roots, and cells white blood cells hair surrounding sperm, in saliva. chromosomes, are in long

Human carried genes pairs threadlike or rodlike structures that are a archive of person’s of a heredity. Those the total pairs genetic makeup [are] .... person Council,

National Research DNA in Forensic Science Technology (1992). S-l twins, for identical DNA of a is for

Except person practi- cal is That because one chromosome of each purposes unique. comes from father and one from the mother .... pair Id. at S-2. adduced

Testimony below showed that chromosomes are com- in posed of DNA molecules. In part DNA “printing” “typing,” DNA molecules are chemically extracted from biological specimens such as semen or blood. The are molecules to a subjected procedure “restriction “cut using enzymes,” which the DNA” and produce ‘ ‘hundreds hundreds of that are . .. all differ- fragments [DNA] ent sizes.”

The next is as known which step electrophoresis, employs medium similar to “very Jello and which nature” separates arranges different sized to their A fragments lengths. according nylon membrane is then over the Jello-like medium and the placed membrane, DNA fragments migrate” into after which “actually chemicals transform “the . double-stranded DNA molecule . . into a single-stranded molecule.”

Next, a DNA “a “probe,” which is short single- section of it, stranded DNA” with radioactive material attached to is applied to the fragments. The across all the of dif- probe hundreds “look[s] ferent .. . and fragments itself to particular] frag- attach[es] [a film, ment.” The membrane is contact put x-ray resulting a band or bands where representing off spot light given when the attached itself to the probe fragment. Any excess probe off, autorad, washed and an autoradiogram, or is produced. examined, autorads are then comparison is made aof fluid at a scene banding patterns found crime sample body Four dif- extracted from suspect. with the patterns specimen determine, whether a semen are for example, ferent used probes matches the blood of on the of a victim clothing rape found sample the bands of the two A match occurs when a particular suspect. are in the same specimens position. found, the next is to determine “how often is

If a match is step how in the Caucasian this seen pattern population particular This determination is made often is it seen in the black population.” that are and then “an overall for each of the four probes performed, of the exercise is to is calculated. purpose profile frequency” are until all the probes eliminate large parts population ‘ is it to exhausted and a determination can be made of ‘how likely with a that matches this [speci- see someone pattern particular men].” Guerrieri, the Com-

Richard A. a forensic serologist employed by Norfolk, Crime in Laboratory monwealth at the Tidewater Regional the semen removed from the conducted DNA analysis sample and the blood taken from Satcher. Guer- of Ann body Borghesani from the semen rieri testified at trial that the DNA obtained profiles blood. Guerrieri tes- matched the DNA of Satcher’s profiles sample the four tests matched the semen tified further that each of probe Satcher, in and that the four tests resulted with the blood of sample of the black the overall elimination of 99.999998% population. “the of randomly selecting Guerrieri also stated that probability the black with the DNA an unrelated individual from population Mr. is one in mil- forty Satcher’s matching approximately profile conclusion, are fifteen mil- lion.” In Guerrieri estimated there about States, and he lion black males in the United expressed opinion all but Satcher as the that the tests he would eliminate performed removed from the of Ann body who donated the semen person Borghesani.9 DNA test contentions raise the whether

Satcher’s question However, as we indicated a reliable technique. scientific ing It was first Virginia. has been settled supra, already question Court, one decided this all involving settled in a series of cases of the trial witness was not areas.” about 133 S.E.2d ^[9] Satcher contends that the trial court should not have “statistics, However, 547, 550 court, qualified.” population whether whose (1963). judgment a witness is Ames & We find no abuse of genetics will not be reversed unless it Webb, qualified probabilities Inc. v. Commercial as an discretion in Satcher’s case. expert when he had no permitted. “lies Laundry, clearly appears largely in the discretion Dr. Guerrieri ^[204] expertise Va. - 616, that the testify these 621,

241 Commonwealth, Wilson v. Va. 238 Timothy Spencer: Spencer denied, (1989), (1990) 384 S.E.2d 775 cert. 493 1036 (Spencer U.S. I); (1989), v. Va. 238 S.E.2d 785 Spencer denied, (1990) II); cert. (Spencer 493 U.S. 1093 Com Spencer monwealth, denied, (1989), cert. S.E.2d (1990) III).10 U.S. 1093 (Spencer credence, gives Spencer decisions no them dismissing curt with the statement that “the those produced [in cases] defense

no evidence to controvert Commonwealth’s claim reliability, a fact that was central to the finding Court’s admissibility.” However, (Emphasis original.) cases cannot be dismissed so III, In Spencer we said: lightly. case,

In the the present evidence undisputed established the DNA test print identification conducted. properly contends, however, that the trial Spencer court erred in admit- into evidence the ting results of the DNA identification print test “because the Commonwealth failed to establish its relia- and its in the bility general scientific acceptance community.” the Spencer contended same in I and II. Spencer In Spencer cases, those in which the issue was one of first we impression, held that DNA is testing a reliable 238 Va. technique. scientific 290, 783; 315, at 384 at S.E.2d Va. at 238 384 S.E.2d at 797. We adhere to those holdings. 573,

238 Va. at 385 S.E.2d at added) (footnotes 855-56 (emphasis omitted). We our reiterate adherence to the rule that DNA Spencer ais reliable testing scientific technique. question scientific of DNA concerning reliability has also been the

testing of action subject the General Assembly. decisions, our Following Spencer General enacted Assembly Code 19.2-270.5 at its 1990 session. The section as fol § provides lows:

In criminal any acid) DNA test- proceeding, (deoxyribonucleic be shall deemed to be a ing reliable scientific and the technique evidence of a DNA be admitted to profile comparison may 498 U.S. analysis by was used. ^[10] In a ^[908] fourth the usual DNA (1990) case, (Spencer Spencer methodology IV), v. Commonwealth, DNA samples a process 240 Va. were too known 78, ^[393] degraded as PCR S.E.2d DNA 609, quality amplification cert. denied, permit 242 shall of This section disprove identity any person.

prove relevant evidence any not otherwise limit introduction at The court issue before court. bearing upon any question shall, the results the DNA if con- analysis, any, regardless such other relevant evidence of the of the accused identity sider be as shall admissible evidence.

Facial of Code 19.2-270.5 Unconstitutionality § contends that Code is unconstitutional its 19.2-270.5 § ‘ face because it creates an ‘evidentiary presumption impermis- shifts burden of We with Satcher. The sibly proof.” disagree “deem” more than one meaning, meaning word has is “[i]ts the circumstances in connection with which it often dependent upon 649, Commonwealth, used.” Miller v. S.E. 2d (1939). Here, the “deemed” must be read the context of the word may of a DNA Code 19.2-270.5 that evidence language profile § be admitted and that the Code shall not otherwise limit the section introduction of relevant evidence at bearing upon any question read, “con When so “deemed” becomes synonymous issue. if,” (6th Dictionary sidered” or “treated as Black’s Law ed. 1990), treated as testing that DNA shall be considered or meaning this Code given meaning, reliable scientific When technique. nor burden of 19.2-270.5 neither creates shifts the presumption § “It a rule of not determine creates evidence does merely proof. Va. accused.” guilt Dooley (1956). 92 S.E.2d of Code 19.2-270.5 Vagueness §

Unconstitutional that “unconstitu Satcher contends 19.2-270.5 is also Code § “it discretion to in judges because allows excessive tionally vague” however, section, all the As noted in the its application.” preceding evidence, to a rule has done is establish of General Assembly of without are in rules evidence administering well-versed judges Furthermore, the administra from the guidance legislature. explicit — the this rule should be relatively problem-free tion of particular the will require of at issue before court” resolution “any question aided to the by judge jury, the law facts the of application of witnesses. testimony, the expert

As-Applied Unconstitutionality § of Code 19.2-270.5 Satcher contends further that Code 19.2-270.5 is unconstitu- § tional as him to to because it “allowed the Commonwealth applied of violate his due confrontation and fair rights process, trial.” Here, Satcher the trial court admitted the DNA test results argues “in the face of evidence that were unreliable” undisputed [they] and, hence, the DNA evidence was more than probative. prejudicial witnesses, cites the of one of his Dr. testimony expert Acton, Ronald T. an in camera given during hearing conducted by the trial court to determine whether the DNA evidence was admissi- ble. Dr. Acton testified the that DNA in use methodology currently errors, can result in mixed and laboratory that samples two different results, laboratories come with two may different and that the up data base used to calculate the of a random match failed probability to reflect accurately “the the in the frequency genes relevant Satcher also the population.” cites another his testimony Mueller, Dr. Lawrence Dochet said that experts, who the data base used in case Satcher’s was unreliable because it did not take into account the existence of subpopulations.11 testified, however,

Dr. Acton also that he found no evidence that errors or mixing of had occurred samples testing Satcher’s DNA. And both of Satcher’s testified that other experts in the field with their views experts disagreed about the to necessity recognize the data to subpopulations base used calculate the of a random match. probability Dr. Mueller testified further that rule,” used to calculate the of a “product random match probability case, in Satcher’s is the same rule the forensic community follows ‘ that ‘has community decided to assume that are subgroups issue.” At the conclusion of the in camera the trial hearing, judge observed as follows: “The Court can without reservation say value of all of the probative in this case with to experts respect DNA evidence should ... go and its effect Jury outweighs 11 Satcher contends the trial court Drs. permitted improperly prosecutor question Acton Mueller on cross-examination their about whether had conducted own tests to eliminate the that Satcher’s blood had been mixed with else’s in the someone possibility jury suggested DNA made in this case. Satcher to the “[t]his analysis impermissibly says disagree. that the defendant was own We his innocence.” We think required prove Furthermore, constituted fair cross-examination. the trial court prosecutor’s questions clearly jury guilt. instructed the burden was the Commonwealth to Satcher’s prove upon 244 think the effect it have the We may Jury.”

any prejudicial correct that the DNA evidence should trial was both judge ruling more to the and that the evidence was than preju- go jury probative dicial. determine, to

Wide must be vested in the trial court discretion offered, evidence is whether the evi- when unfamiliar scientific dence so unreliable that a must be inherently lay jury it, it shielded from or whether is of such character the jury be left determine the for itself. credibility to may safely 98, 621, Commonwealth, v. 240 S.E.2d Va. 393 Spencer denied, (1990) IV). U.S. cert. 498 908 (Spencer

Rulings Witnesses Concerning Expert court the Satcher that the trial Common- complains permitted to in violation a “DISCOVERY testimony wealth introduce Attor- AGREEMENT” entered into between Commonwealth’s that the agreement provided defense counsel. ney prosecu- names, addresses, tele- tion and the defense would “exchange and curricula vitae of witnesses any expert engaged numbers phone to DNA and/or as the use or investigate testify interpretation to analyses.” that, trial agreement,

Satcher first contends violation to testimony court allowed the introduce the prosecution expert Ferrara, Division of Forensic Virginia Dr. Paul B. Director Science, Commonwealth had not furnished the witness’s when however, think, trial to defense. that the curriculum vitae We Ferrara factual not subject court treated Dr. as a witness correctly the curriculum-vitae provision. witness, maintains,

But, then if was factual Satcher Ferrara all court’s rule that in violation of trial he allowed testify should excluded from courtroom. witnesses be except experts action in per that we cannot reverse the trial court’s agrees that Satcher was unless it testify appears Ferrara mitting Va. 236 such action. See Bennett prejudiced denied, U.S. 448, 465-66, (1988), S.E.2d cert. 490 that “no harm court found (1989). The trial specifically ... in Hav- resulted from presence [Ferrara’s] [the] courtroom].” record, examined the hold that the trial court did not abuse ing we its discretion in to the witness permitting testify. McElfresh, Satcher’s next Dr. Keven an complaint involves ‘ of LifeCodes which ‘the on-line

employee Corporation, reproduced database to calculate the in probability of random [used match] witness, this case.” Satcher summoned Dr. as a McElfresh him put defense, on the stand the case for the during asked him merely whether he of was custodian the data base. When the prosecutor asked McElfresh on cross-examination whether he was familiar database,” with “the of that nature defense counsel objected on ground that the went question beyond of the direct exami- scope nation.

When the stated that he prosecutor would make McElfresh his witness, defense counsel on the objected ground that the prosecution had not furnished the defense with the witness’s curriculum vitae. to furnish the prosecutor agreed curriculum vitae forthwith announced that he would recall Dr. McElfresh the Common- during later,, wealth’s in case rebuttal. days Two witness returned to the stand, and the trial court allowed him to on testify behalf of the Commonwealth as a DNA expert. that,

Satcher argues because “Dr. McElfresh’s curriculum vitae were to the given defense two before only he was called days rebuttal,” as the Commonwealth’s his expert testimony violated discovery agreement denied Satcher due of law. We process In the disagree. first we do place, not think has who party himself summoned a witness is in to any position his require oppo nent to furnish him with a of the witness’s copy curriculum vitae. Be that as it Satcher has may, not demonstrated that he was manner prejudiced any because he was furnished the information two before “only days” McElfresh testified. that,

Satcher also Dr. when McElfresh testified on complains rebuttal, redirect examination the Commonwealth’s during the trial ‘ court allowed him ‘bolster own with improperly credibility [his] hearsay Mr. testimony, Satcher due denying process law.” Satcher that the trial argues court Dr. permitted McEl- erroneously fresh name other who it with his view that is experts agreed to include in the unnecessary data base used to cal- subpopulations culate a random match in DNA probability samples analy- sis. to our the trial court’s action was contrary argues Williams, (1991). 409 S.E.2d Todd

holding case, Todd, held it was to allow In a medical we error malpractice that he had to two national author- an witness state spoken expert with his view that a procedure ities and that they agreed particular case there on trial. unnecessary type however, Todd, the situation in the present inapposite; in a even resemble Todd. At one remotely point vigor case does not McElfresh, counsel asked: ous of Dr. defense cross-examination who is studies advocating involving “So that anybody population At defense with them?” another point, subgroups, you disagree ‘ who anyone sug T assume that you disagree counsel asked: until these have been subgroups that we not use data gests that a In both these defense counsel questions, implied assessed?” Dr. McElfresh about the use of disagree of would with experts body the for McEl or and door clearly opened subpopulations subgroups other who agreed fresh to name on redirect examination experts with his views.12 for similar redi counsel the door even wider opened

Defense Risch, Neil another DNA the Com expert rect examination Dr. its While Risch was under called case rebuttal. during monwealth cross-examination, “Well, gone said to him: we’ve defense counsel Cohen, some that —Doctor disagree you through [experts] Greene, Lander, Doc Doctor Doctor Doctor Doctor Taylor, Lynch, “Would like tor Hurdle.” Risch then asked defense counsel: you the The trial remarked me name the ones on other side?” judge to to other that ask” about going experts, prosecutor] “[the ask, it, “Let I’ll as he does to compare defense counsel said: him. Lander, —.” Hurdle them in to preeminence be “start naming Dr. Risch said he to happy” peo- When “would stature,” named two . . . defense counsel equal greater ple trial judge to out.” When the and told Risch “leave persons [them] were, he defense counsel said was asked who the two persons prejudice conceded another receive Dr. told that he trial. [the Commonwealth] may Satcher also contends that expert that resulted from his that Spence’s was called being prosecutor curriculum called call as an expert had advised the defense vitae until the the having a Dr. trial Spence,” received the curriculum court erred in at trial until that time.” day to before and Satcher has testify “a allowing Dr. John Edward couple because trial vitae However, began, months “[t]he not demonstrated only [before defense did not defense counsel one [was] day trial] not even Spence, before that to this.” The court overruled the “going object objection, Risch named think six We that was persons. objection properly overruled; defense counsel was “cat and mouse” play attempting court, with the and the action thwarting court’s attempt justified.13 fully Satcher contends that the trial

Finally, court improperly allowed cross-examine T. a hair prosecutor Myron Scholberg, defense, called by the about whether a hair analysis expert pubic found on Ann Borghesani’s body could have been “transferred from the to the ground victim” or “whether could been a have [it] hair from a sexual had previous partner Scholberg [Satcher].” testified on direct examination a negroid that hair removed from the victim’s differed its body characteristics from hairs microscopic hence, and, removed from Satcher “could not have originated” from him. examination, however, also

Scholberg testified on direct are not a means of positive identification” and “[h]airs that he could “never that. . say . hairs from originated a certain individual to the exclusion of all other in his or her race people Given group.” direct, nature ambivalent of Scholberg’s we testimony think the prosecutor’s constituted fair questions cross-examination.

Admissibility Deborah Abel’s Identification Deborah Abel was the first witness for the Commonwealth at trial. She was asked whether the who attacked her was in the person courtroom. She replied affirmatively, and to Satcher. pointed When she stated she had observed Satcher in the courtroom during selection, two of days jury Satcher to objected “any con- testimony cerning ... an in-court of one show-up Satcher that person.” argued the identification inwas violation of “the in discovery agreement this case” and was “overly The trial court overruled suggestive.” and Satcher objection, error to the assigns ruling.

On Satcher that the appeal, argues discovery agreement was violated because his counsel “did not receive any notice that Ms. Abel had identified the Defendant as her assailant.” does Satcher 13 Satcher contends that Dr. Risch should not have been to all at because permitted testify began” he refused to return hence, defense counsel’s calls before the trial “consistently and, was not available “for to defense Satcher does not tell us what he discovery purposes.” was entitled to Risch, discover from Dr. but, event, no claim is made that Risch’s any agents. of resulted from action the Commonwealth or its unavailability he contends agreement of the discovery out the point provision violated, unable to find one requiring and we have been

was that had defense counsel notice someone give Commonwealth to set we have found one identified Satcher. closest provision forth, in a consent order. The agreement, not in the but discovery that requires provision that be written notice to the Commonwealth identity may

upon Commonwealth the defendant permit trial issue the shall and/or copy photograph: inspect,

(c) the defendant For each who at trial will identify witness the wit- arrays

as the all shown perpetrator, photographic of line-ups ness and and all photographs descriptions identified!)] defendant in which the was show-ups relative to notice added.) If there is some other provision (Emphasis discover, will afford the trial court a we have been unable to we Satcher’s of in its decision overrule correctness presumption And, if no other provision based objection provision. upon exists, is faulty. we must assume defense counsel’s memory Ms. Satcher Abel’s argues

On the subject suggestiveness, “came to because she highly suggestive in-court identification was that he the man court and the Defendant was knowing observed he was her and she knew who charged against offenses the courtroom.” he black man in that part because only is clearly that the of this identification says unreliability the five factors listed it is examined light established when (1972), for evaluating 199-200 Neil v. 409 U.S. Biggers, factors, mlsidentification. well as Satcher’s The five as likelihood of thereto, are as follows: with respect and our discussion arguments of the witness to the opportunity The first two factors involve degree the crime and the witness’s at the time of view the criminal but little that Ms. Abel had says opportunity attention. Satcher gave only slight of the attack and her at the time view assailant to his attention appearance. who

However, that she first saw person Ms. Abel testified and 50 feet between 30 be when he was turned out to her assailant “a few looked at him that she her on the away bicycle path, from times,” and that she made contact” with him “eye when another, close,” one at which time they “very were passed “even . . . two feet” she conceded her apart. Although eyeglasses came off when she knocked from her she bicycle, she said was on,” “able to see him when they were And, that, she testified before she importantly, identified Satcher courtroom, walked, she observed “the he he way way bench,” his shoulders when he would come back shrugged from the ‘‘it . and would . . remind of . .. that .. . . . him night. [her] [a]nd down the coming ... the same he path exactly would walk way back to his chair this [courtroom.”

The third factor relates to the accuracy witness’s prior of the accused. Satcher description maintains that Ms. Abel’s prior of her descriptions assailant were not accurate in her statements build, hair, scars, his concerning height, weight, facial and dif- age fered from his actual and physical characteristics because sketch assailant prepared by police artist from department Ms. Abel’s “did not resemble description in any way.” [Satcher] unusual, however,

It would have been had Ms. Abel’s description her assailant matched Satcher’s characteristics in physical every detail; event, in any the differences between her description Satcher’s actual went to the appearance not the weight, admissibil- of her identification evidence. ity, And the statement the artist’s sketch “did not resemble any way” [Satcher] unsupported by Indeed, the record. Ms. Abel testified that Satcher “looked close ... extremely to the she “had picture” helped artist draw.”

The fourth factor concerns the level of demonstrated certainty the witness at the confrontation. Satcher asserts that Ms. Abel’s because, level of was low certainty two approximately weeks before trial, she viewed Satcher and five other in a persons lineup selected “a other than the person Defendant as the man who attacked her.” however,

What Ms. Abel did after actually viewing lineup, was to ask “number two and number four to out come again stand and turn around a few times for When asked at trial [her].” whether she was “able positively individuals identify any “Well, four, in that she line-up,” number I had replied: decided in mind, my looked close ... to the . extremely that I had . . picture the artist She helped draw.” that No. 2 explained looked “very unthreatening” and she felt that the man who her “that passed night 4,No. who

. But she said that unthreatening.” happened . . looked Satcher, “looked . . . almost identical to picture.” to be Furthermore, and he viewed the lineup Mark Polemani separately, 4 as the he had seen on the night selected No. man also probably to was not He was not asked positive. identify but he question, at trial. Satcher Ms. level of most on the Abel’s significance subject

Of the however, is the fact that her in-court identification of certainty, It is that Ms. also positive. important Satcher was unequivocally own; her there is not the slightest Abel the identification on made of the Commonwealth had do agent anything indication that any a scenario the designed produce other staging “show-up” identification. with the of time between the crime

The final factor deals length that a considerable the confrontation. Satcher states accurately — fifteen months between —elapsed of time approximately length crime time Abel made her in- the occurred and the Ms. the time is sufficient to the of time alone court identification. But lapse of law. identification unreliable as a matter render an Rather, on the an identification is reliable “depends whether Denno, U.S. the circumstances.” Stovall totality of case, in this of the circumstances (1967). Considering totality that Ms. Abel’s in-court identifica have no difficulty saying we tion of Satcher was reliable. Concerning

Admissibility Rings Evidence “all the rings Ann wore two Borghesani Evidence showed that it her when was discov- were from missing body time.” rings after the murder. ered the morning Tufts University, was a class from missing ring

One of the rings testimony mater. The defense put Ann alma Borghesani’s in Fairfax shop who Kruger, consignment Kurt William operated murder, that, after the two white He said about a month County. bear- ring to sell him a class attempted in their mid-twenties females rebuttal, the Commonwealth intro- initials. In Borghesani’s Ann ing duced, mother, for the ring, of an order form Ann’s through copy had mother’s which Ann had filled out her presence which a ring The form called for records. among family’s retained been “Ann,” “E,” initial and the last the middle the first name bearing “Borghesani.” name that the order form constituted inadmissible hear- argues He does not under the business records

say. it says qualify excep- rule, tion to the and he claims its admission was hearsay prejudicial because it evidence that with no “contradicted defense someone connection had been to sell taken attempting to him from jewelry Ann Borghesani.” assume,

We without that the form deciding, will order was not However, admissible under rule. we hearsay exception form, error, think that if the admission was harmless error. The defense claim of the valid upon prejudice dependent ity “someone with no connection” to Satcher premise however, to sell That is based attempted ring. premise, upon rather than fact. All record shows is two white assumption females in their to sell mid-twenties To attempted ring. say they had no connection to be Satcher would No pure speculation. prejudice can result from the admission of evidence which is claimed a to contradict fact that has not been in established the first place. Satcher

Cross-Examination of Satcher took the in witness stand his own defense. On direct examination, D.C., he testified that in he lived on the Washington, murder, date of the that he did not remember what he was on doing occurred, the the murder the evening awl the found in his police vehicle, car was used to the that he did repair not attack Deborah Abel, and that he did not attack and murder Ann Borghesani. cross-examination,

On the without asked objection, prosecutor, Satcher several his on the questions concerning whereabouts day murder, the he whether worked on and whether he was day, But, familiar with the location crimes where the occurred. when the asked Satcher whether he was the prosecutor familiar with bicycle in paths and whether he before he Arlington County knew cases, arrested that he was a the Abel in suspect Borghesani defense counsel on the exceeded objected ground questions of the direct examination. The trial court scope overruled objec- tion, and Satcher as error. assigns ruling

On that the trial court in appeal, argues erred permitting cross-examine him on exceeded prosecutor matters that of the scope direct examination. He also that the error was argues 252 of rebuttal evidence issues concerning admission by

compounded the Commonwealth. first raised his cross-examination during When he took the witness stand We with Satcher. disagree trial, on he and denied in the offenses then opened complicity court, for on cross-éxamination that the trial door any questions discretion, to the issue of the exercise of its find relevant might guilt Commonwealth, 423, 438, 225 Va. 304 or innocence. See Bunch v. 271, 279-80, denied, (1983). cert. U.S. S.E.2d 977

Furthermore, denial of on the Satcher’s witness complicity stand also the door for rebuttal evidence contradictory opened denial, in the thereof and whether order proper scope presented to the exercise of the trial court’s discretion. See being subject 127, 142, Quintana 224 Va. S.E.2d denied, (1982), (1983); cert. 460 U.S. v. Common Hargraves wealth, 604, 608, (1978). Finding 248 S.E.2d 816-17 in either the cross- no abuse of discretion on the trial court’s part rebuttal, examination of Satcher or the admission of evidence we on the subject. Satcher’s reject argument Ann Bern’s Admissibility Joyce Identification Ann Bern lived in a condominium facing bicycle path Joyce section of located some distance from the scene Arlington County 18, 1990, of Ann murder. On about four and Borghesani’s August murder, out the one-half months after the Ms. Bern was cleaning man trunk of her car when she was “about knocked ... down” aby time, and ran off the bike trail.” It was at the mid-day who “right seconds. She also Ms. Bern observed the man’s face for two to five noted that he was red an off-white shirt wearing jogging pants, it, faded red and a “black belt.” writing fanny down, running After almost Bern the man on “just kept knocking where can cut across “you . . . to the back of the up apartments” two, a Mile Run.” In a minute or . . . and ... over to Four go and eve- “came off the bike trail” with “skinned knees woman up Overholt, woman, later identified as Regina The who was rything.” the bike trail” and asked to said “she had been attacked down on call the use Ms. Bern’s police. telephone arrived, drove Ms. Bern “down off officers When police Drive,” Mason a distance equivalent Four Mile Run and George There, a black man home. she saw lone ten minute walk from her He was surrounded a number by in the of Michael Satcher. person uniform. most of whom were not in police people, car, far from Satcher as the Ms. Bern remained in the as police to “the back wall of the court- distance from the witness stand since room.” fifteen to minutes had Ms. Only twenty elapsed the man at the trunk of her car. Bern’s encounter with the admissibility an in camera held to determine During hearing that, identification, she arrived at of Ms. Bern’s she testified when her, location, “is this the Four Mile Run asked police man?” because “he had taken his shirt She said she was not sure off,” and she asked the “to the shirt back on him.” police put on, said, like his shirt and Ms. Bern that looks put “[y]es, that, certain, the man.” She also said while she “was not ... it sure a coincidence for man to be the same wearing [would be] [another] that, him,” clothes.” And she indicated “after the shirt on they put there no was mind” that Satcher was the “question person [her] she saw “running by [her].”

Over Satcher’s the trial court Ms. Bern to objection, permitted the Commonwealth’s rebuttal in the testify during guilt phase. There, she identified Satcher as the she run- positively saw person from the ning 1990. bicycle path August In the Ms. Bern sentencing about phase, permitted testify the whole events which she was involved with sequence counsel, Satcher on 18. On cross-examination defense August by she indicated some about her identification of Satcher. uncertainty She testified that she could not Satcher was the say “positively” ‘ man who ran her ‘but it would to be have one out of a hundred past And, that are to dress the same people] going way.” impor- [two she ma’am” when asked on redirect exami- tantly, replied, “[y]es, nation whether had she identified Satcher at his preliminary hearing “as the one ran who by morning.” [her]

Satcher contends the trial court erred in Ms. Bern to permitting He that the in which Ms. Bern testify. argues “showup procedure identified Mr. Satcher was unreli- unduly suggestive totally ’ — seconds, able’ him for her she saw few attention was not only him, identification, focused on she was uncertain of her and she identified the clothes rather than the person.

We with Satcher. We think this case is controlled our disagree decision Martin v. 173 S.E.2d 794 case, (1970). In two men in an victim was beaten by about one assailants 2:00 a.m. two attempted robbery morning. fled the occurred, scene. Fifteen or minutes after the twenty offense took the victim to a police location six blocks approximately There, from the crime scene. another officer had police two stopped who matched the subjects the officer had received description over the radio. The cruiser, victim remained seated in the some 60 police defendant, Martin, feet from where the was The defendant standing. was directed to and, into the beam of the step cruiser’s headlights, did, when he the victim identified him as one of the assailants. “[tjhere This Court said that was ‘so nothing unnecessarily sug- about gestive’ identification of the defendant [the that the victim’s] latter 692, was denied due of law.” Id. at process 173 S.E.2d at that, We 798-99. also said the victim although had indicated uncer- while on the tainty witness stand about his in-court as well as his identification, the pretrial of a testimony officer that police the vic- tim, on the of the night had made a robbery, positive identification defendant, of the was sufficient ‘‘to support jury’s finding the defendant was one of the who persons to rob the attempted [vic- 692, Id. at 173 S.E.2d at 799. tim].” Hence, the identification Martin was neither suggestive nor unreliable. We think the same statement can be made concern Indeed, Ms. ing facts, Bern’s identification here. on the the present case is indistinguishable from Martin. in mind that Bearing ‘‘[s]uggestive confrontations are disapproved because increase misidentification,” likelihood of Biggers, 409 U.S. at we can in all say fairness that there was nothing about the suggestive conduct police involved in the identification procedure by which Ms. Bern identified Satcher. On the subject Ms. Bern reliability, in her positive identification of Satcher when she testified in And guilt she phase. have uncertainty may while expressed in the testifying sentencing was removed her phase unequivocal affirmative to the whether response question she identified Satcher at his as preliminary hearing ‘‘the one who ran by [her the] morning August we hold [of that the trial Accordingly, 1990].” court did not err in Ms. Bern’s admitting testimony.

Sufficiency Evidence to Convict Satcher’s to the challenge sufficiency evidence is limited to In question this identity. resolving we view the evi- question, dence and the reasonable inferences drawn therefrom in the fairly I, 238 Va. at Spencer to the Commonwealth. most favorable light at 384 S.E.2d 779. both offenses to linking that the evidence only Satcher argues of the two victims were was the fact that purses same assailant He also notes that the awl found found in the same general vicinity. no traces of blood and car tested and found to contain in his was that, the awl consistent the medical examiner said was although wounds, the murder could not it was say with Ann she Borghesani’s However, all relevant circumstances surround- these were weapon. Satcher was were charged; they prop- the offenses with which ing as were entitled to such weight submitted to jury; erly them. the jury might assign of a serologist also contends the forensic testimony

Satcher that, conducted, elimi- in the tests she' Satcher could not be showed Ann nated as a donor of a semen stain found on Borghesani’s pants. were This witness said that seven percent population possible and, of eleven blood taken from contributors to stain samples “WL,” as two Satcher and someone designated suspects, persons, results, These Satcher main- could have contributed to stain. tains, than one was involved in the murder indicate that more person he, Satcher, Ann and that was not the “triggerman.” Borghesani submits, the fact that a

This Satcher is theory, supported on Ann coat could not be semen stain found Borghesani’s typed hence, and, “could because of in amount the stain insufficiency man.” The additional gains have come from any theory support, the defense Satcher from the says, testimony Myron Scholberg, in Ann hair who said that hair found foreign expert, area could not have from Satcher. originated Borghesani’s pubic However, eliminated con- “WL” as a additional tests possible the sole donor. tributor to the stain on the Satcher as leaving pants, the coat that the the stain found on And to say inability type in the murder would means that more than one was involved person Furthermore, con- what said Myron Scholberg be pure speculation. hair an inconclusive admittedly opinion, was cerning pubic insufficient, alone, it even standing support possibility was mur- than involved in Ann Borghesani’s that more one was person der. Abel, Deborah to the charges involving

Finally, respect was her in-court identification reiterates his arguments Satcher between her that there gross discrepancies were highly suggestive, and that her lineup him and his actual appearance, description identification was inaccurate. completely Concerning charges Ann involving Borghesani, his repeats that DNA argument testing unreliable. We have these rejected arguments in earlier of this portions with the resultant opinion, that all the holding evi- dence to which the arguments relate was submitted to properly for jury its consideration and attendant assessment of weight.

From our consideration of the an sufficiency over question, observation riding While other emerges. evidence all the supports case, convictions in this Deborah Abel’s in-court identification of Satcher was sufficient alone to establish him as her assailant and the DNA typing adequate by itself he show was Ann Borghesani’s murderer.

Instructions Satcher contends the trial court erred in refusing his Instruction J, which would have limited the consideration jury’s of Satcher’s pretrial statement to its “I-am-being-framed-for-murder-or-rape” However, on bearing his credibility. this limitation is applicable to “a only witness who is not a case on trial.” party Pugh to.the Commonwealth, 369, 374, 591, 233 Va. 355 S.E.2d (1987). 594-95

Satcher contends next that because his of the case theory was that “any identifications of him were wrong,” “eyewitness tes and DNA test timony results were central to the identification issue.” He that he elicited says that testimony “both identifications ’ were erred, unreliable’ and therefore, that the trial court in refusing his Q, Instructions L and which he describes as instruc “specific on how the should have jury tion^] considered [the identification] Commonwealth, issues.” 258, But in Poole v. 211 Va. 176 S.E.2d (1970), where, here, 821 we said that as “the instructed jury fully on doubt, of innocence and presumption reasonable a separate instruction 261, is not identity Id. at required.” 176 S.E.2d at 824.

The trial court R, refused Satcher’s Instruction proffered which would have permitted to find him jury first or guilty murder, murder, second rather than degree capital granted 17, Instruction which limited the effectively jury’s options capital error, and first murder. Satcher degree this was but find says we no evidence in the record which would have an instruction supported on second murder. degree it was not error to refuse Accordingly,

257 Buchanan, Va. at See 238 Instruction 17. R and to grant Instruction 409, at 769. 384 S.E.2d B, dealt reasonable which offered Instruction

Satcher C, of inno doubt, dealt with which presumption and Instruction C, B but refused doubt. The trial court granted cence and reasonable 255, Eaton, Va. at not error. of C. This was as duplicative at S.E.2d 398. Instruction the trial court granted objection,

Over Satcher’s murder, the 15, in establishing informed the jury capital which willful, “the was killing Commonwealth was required prove did that the indictment Satcher says deliberate premeditated.” “willful, it did not contain the not murder because charge capital and that Instruction 15 was language deliberate and premeditated” However, indictment. because based a defective improper upon form, and it informed fully indictment in the short statutory and cause of the accusation him.” against Satcher “of the nature Hence, to include the words Code it was unnecessary 19.2-221. § in the indictment. See deliberately “willfully, premeditatedly” 115, 134, Commonwealth, 109, 221 Va. 267 S.E.2d Simpson v. (1980). told the that it “may

Instruction which was granted, jury Satcher infer malice from the deliberate use of deadly weapon.” the burden of the instruction says “impermissibly proof shift[ed] the defendant.” But in Warlitner v. denied, (1977), this (1976),

228 S.E.2d cert. 430 U.S. 957 Court held that such an instruction did “impose upon at 700. accused burden of Id. at 228 S.E.2d persuasion.” PHASE SENTENCING Denial Recess mur- returned its verdict finding guilty capital jury the afternoon of the of trial. When eighth day der about 4:30 on the sentencing its intention to trial court indicated proceed afternoon, for an recess. overnight the same Satcher moved phase sentencing to commence the that the wish Stating jury’s expressed consideration,” the trial that afternoon was an “important phase denied the motion. judge a denial of that the trial court’s action was

Satcher contends Fifth, Sixth, and Fourteenth Amend under the Eighth his “rights and 8 and 9 Constitution ments to the United States section[s] .258

Article I of the Constitution of We a Virginia.” disagree. Whether recess should have been was a matter granted for exercise of discretion, trial find court’s and we no abuse of discretion in the denial of Satcher’s motion. Review

Sentence case, In a this Court is to consider and capital required determine whether “the sentence of death was under the influence imposed passion, other factor.” Code 17- prejudice arbitrary § 110.1(C)(1). areWe also whether determine “the sen- required tence of death excessive or to the disproportionate penalty cases, in similar both the imposed considering crime the defen- dant.” 17-110.1(C)(2). Code §

The bulk Commonwealth’s at the evidence sentencing 18, 1990, consisted of phase Satcher’s criminal activities on August he arrested after day was his encounter with Bern. About Joyce date, 9:30 a.m. on that Joanna Chusid was a walking along bicycle path vicinity Bern’s home when she was Joyce grabbed from behind and forced into the woods man black by displaying Swiss knife. The attack ended army when Ms. Chusid urinated her assailant involuntarily departed.

About a.m. the day, 11:30 same Overholt was Regina walking the same when she was from along bicycle path behind and grabbed forced off the a man a knife with a path by displaying four-inch blade. The attack was broken when off Patricia Schmidt and Joel on the Rogers arrived scene in to Ms. response Overholt’s screams. rescuers, her Ms. Overholt the bike Accompanied walked “up Bern, . . . at the found path Joyce who assisted her top” [a]nd Overholt, Schmidt, Bern, all calling Rogers said that police. T-shirt, the assailant’s of red clothing consisted sweat white pants, and a black “fanny pack.”

About on the same Alice noon was on the day, Rooney jogging when she saw a man on a bicycle path sitting bridge. Becoming foot she increased her and the man started apprehensive, pace, running after her. When she observed “a officer motorcycle coming [her] took said off.” She that the man who chased her way just [she] wore red sweat and carried a white in his pants T-shirt hand.

The officer James Lee and he Page, was riding along to be to a call on the lookout for a black bicycle path response T-shirt, male red sweat white and “a black waist wearing pants, man him with a toward coming a woman jogger wallet.” saw Page man, he ascertained He behind her. stopped to two feet” “[o]ne Satcher, “a back up.” and called for was Michael arrived, Satcher twice and he asked Brian Cammarata Officer Cammarata no Receiving response, he had in his hand. what item, to be It turned out and it fell to the ground. at” the “grabbed T-shirt, under knife. Satcher was placed around a Satcher’s wrapped scene, arrest, and she identified to the Bern was brought Joyce time earlier. had encountered a short Satcher as the she person from testimony family Satcher submitted At the sentencing phase, who had never he individual members and friends that was quiet He was described as a caring demonstrated violent propensities. any others. He was con- and father and as a who loving person helped mildest, meekest, as “the quietest, sidered counselor by jail that ever seen self-effacing jail.” person [most] [he had] and Prejudice Passion Satcher contends his death sentence was the product passion because he tried an all-white for the prejudice by jury rape and murder of a white woman. He also the situation was young says offenses exacerbated the admission of evidence by concerning three women and from the mother other white against by testimony and close friends of the murder victim. in the

We with Satcher. In the first disagree place, nothing But, record his that his was all white. aside statement supports jury that, from neither is there in the record to his claim anything support sort of racial bias entered into the trial of this case or pro no indica duced or him. And we find against any passion prejudice tion of undue on the for the victim’s fam jury sympathy part or friends. ily were created

Satcher also argues passion prejudice offenses the consolidation for trial of the Abel and by Borghesani voir dire that were who stated on by presence jurors However, in this toward the death earlier opin predisposed penalty. ion, that no error in the trial court’s con rulings we found existed these matters. We now find that no or passion prejudice cerning actions, resulted from the court’s whether the actions are considered singly collectively.

Excessiveness and Disproportionality that the argues “excessiveness and disproportionality the sentence is demonstrated the fact that had no history [he] violence and his criminal prior consisted of two history misde- Furthermore, meanor offenses.” drug he there was “a says, signifi- cant amount of evidence.” mitigating

It true convictions, that Satcher had two only one previous for of PCP and the attempted possession other for distribution of mari- But he violated the juana. terms of his probation by continuing use and drugs was incarcerated for a of 180 And period days. to say that he has no of violence history is to ignore fact that he was a veritable one-man-crime wave on the bicycle paths Arlington on March 31 and County 18 of August 1990.

Furthermore, the violence of his attack Ann upon Borghesani is almost unparalleled our cases. He stabbed her a death-penalty fatal, total of times. Three twenty-one wounds were the first pene- the heart and trating three and extending one-half inches into the chest, the second inches, the left piercing to a of three lung depth and the third severing vein on the jugular side of the neck. right There were six abdomen, other stab wounds to the chest and three to back, the right lower and nine to the neck. The victim was also face, beaten about the causing bruises and lacerations to her eyes, nose, cheeks, forehead, knees, feet, and jaw, chin. Her lips, and toes also bore bruises and abrasions. Abel, Chusid, Overholt,

That Deborah Joanna Regina Alice did not suffer Rooney similar fates at Satcher’s hands can be ascribed only And it fortuity. is no wonder that the after jury, evidence, all the considering should decide that the evi mitigating dence submitted by was not sufficient to a sentence justify less than death. found in the murder of jury Ann both Borghesani viz.,

“future “there dangerousness,” is a probability [Satcher] would commit criminal acts of violence that would constitute a con “vileness,” viz., serious threat to tinuing society,” Satcher’s “conduct in the offense . . . committing was or wan outrageously vile, torture, horrible or tonly inhuman in that it involved depravity of mind or an aggravated to the victim.” Code battery 19.2-264.2. § Satcher does not challenge evidence with sufficiency

261 However, our inde- statutory to either of these predicates. respect that the jury’s findings the evidence satisfies us review of pendent were correct. or dispro a sentence of death is excessive

In whether determining cases of all murder previ we consider the records capital portionate, was based in which the death sentence reviewed this Court ously cases where life both including imprisonment upon predicates, excessiveness or disproportional The test for determining imposed. in this generally other bodies sentencing jurisdiction is whether ity conduct, both the considering the death sentence for similar impose 17-110.1(C)(2); v. Com Stamper crime and the defendant. Code § monwealth, 260, 283-84, (1979), cert. Va. 257 S.E.2d denied, (1980). 445 U.S. 972 in which the death sentence was

Previous cases imposed “future and “vileness” are dangerousness” of both finding upon 319-20, II, collected in 238 Va. at 384 S.E.2d at Spencer 264, 284-85, supplemented George denied, _, (1991), cert. 503 U.S. 112 S.Ct. 411 S.E.2d (1992), itself a case of both involving finding which was cases, From a consideration of our we statutory predicates. previous find that Satcher’s death sentence is not excessive or disproportion bodies ate to the other generally sentencing punishment imposed in this for similar conduct. jurisdiction trial court and no no error in

Finding any rulings perceiving death, the con- other reason to disturb the sentence of we will affirm victions and sentences involved this appeal.

Affirmed. HASSELL, with whom WHITING dis- joins, JUSTICE JUSTICE senting.

I I that the trial court committed revers- dissent because believe ible error Satcher of a fair trial. which deprived motion for sepa-

The trial court erred in Satcher’s failing grant rate trials. was indicted and tried for crimes two against sep- offenses following relating arate victims. He was found guilty and robbery. assault and battery, to Deborah Abel: attempted rape, offenses following relating He also tried and convicted of was murder. Ann Borghesani: rape capital involving The offenses Deborah Abel occurred on March 7:15 at The record does not establish the approximately p.m. Ann time that was and murdered. Borghesani Ms. raped Borghesani 31, 1990, was seen alive on March at in her last 7:10 p.m. apart- ment. Her time after a.m. body discovered some 6:45 on the 1, 1990. following morning, April 10(b)

Rule of the Rules of 3A: this Court states: An Accused With Than More One Charged Offense. court direct that an tried at may accused be one time for all him, then offenses if pending against justice does not require (i) trials and the offenses meet the separate requirements 3A:6(b) (ii) Rule or accused and Commonwealth’s attorney consent thereto. 3A:6(b)

Rule states: — offenses, Joinder Two or more of which of Offenses. misdemeanor, abe or be may felony may charged separate of an or if counts indictment are information offenses based transaction, same act or or on two or more or acts trans- that are actions connected or constitute of a common parts scheme or plan.

There is no evidence in the record which reveals that the offenses against committed Deborah Abel and Ann “are Borghesani based transaction, on the act or same or on two or more acts or transac- are or tions that connected constitute of a scheme common parts plan.” Id. assertions contained in the Contrary majority’s there no evidence from which a opinion, inference can be proper drawn that the acts are connected. We have heretofore discussed under what circumstances

‘ ’ ‘two or more acts or transactions ... are connected’ in the context However, 3A:6(b). of Rule we have discussed which requisites must be before a crime can to be be deemed “connected” to present In (1 another crime. Walker Leigh) 574 (1829), we stated: however,

It that as the evidence of cir- frequently happens, cumstances must be to for the resorted of purpose proving commission of the offence charged, particular proof acts, other either circumstances involves proof those cases, it that In such is proper, innocent. criminal apparently more links unbroken. If one or evidence should be the chain of circumstances, tend to which prove that chain consist of than that charged, of other crimes has been guilty prisoner exclude those circum- reason the court should why this is no connected and blended with are so intimately stances. They evidence, be cannot departed main facts adduced the criminality there no reason why from with propriety; circumstances, should exclude such intimate and connected of them, other facts innocent. more than apparently In at in original). Kirkpatrick Id. 576 (emphasis rule articu- (1970), we 176 S.E.2d 802 repeated

lated in Walker. crimes is admissible where the other of other

[Testimony of which the crimes constitute a scheme general part it is give crime is a charged part. Frequently impossible inci- the crime without showing charged connected statement and similar crimes dental reference to such contemporaneous disclosure of other and where there is such incidental only offenses. Furthermore, while

Id. at 176 S.E.2d at 805. approving aby criminal conduct committed admission evidence prior defendant, we stated: are connected and blended intimately “so

They [the crimes] evidence, cannot be adduced in that they with the main facts no reason why and there is from with departed propriety; circumstances, connected of such intimate and criminality them, other facts exclude more than any apparently should innocent.” Walker, (1Va. Leigh)

Id. at 176 S.E.2d at 807-08 (quoting 576). at courts, Rule 8 of the Federal

Numerous which have considered Procedure,* to Rule similar substantially Rules of which is Criminal ^[*] Rule 8(a) of the Federal Rules of Criminal Procedure states: 264

3A:6(b), have the rule when deter essentially applied Kirkpatrick if mining offenses can be tried over the defendant’s together objec Montes-Cardenas, tion. For the court United States v. example, (11th 1984) 746 F.2d 771 Cir. stated: Offenses be if may joined are based on “two or more they acts or transactions connected or of a together constituting part or 8(a). common scheme Fed.R.Crim.P. are plan.” Two crimes “connected” if the together one crime constitutes a proof See, substantial of the of the portion proof United e.g. other. 114, denied, States v. Sweig, 44l (2nd Cir.) F.2d 118-19 cert. 932, 2256, 403 U.S. 91 (1971); S.Ct. 29 L.Ed.2d 711 United Weber, 327, v. (3rd States 437 F.2d 1970), 331 Cir. cert. denied, 932, 1524, (1971); 402 U.S. S.Ct. 91 28 L.Ed.2d 867 422, (2nd see also United Halper, States v. 590 F.2d 492 Cir. 1978) when (joinder commission of one crime did not improper lead to commission of the other and of one did con proof other). stitute of the proof

Id. at 776. The Ninth Circuit Court of held that Appeals recently crimes are the together connected if of one crime con- proof “[t]wo a stitutes substantial of another.” portion United States proof (9th v. Terry, 1990) 911 F.2d 276 Cir. (quoting Montes-Carde- nas, 776). 746 F.2d at circumstances,

Joint trials are in certain permissible, to avoid witnesses, accused, inconvenience to unnecessary the the govern- ment, and the As court. we observed in the Kirkpatrick, facts giving “ rise the offenses ‘so charged against the defendant be inti- may “ and mately connected blended’” that cannot be ‘departed from with Va. at 176 S.E.2d at propriety.’” 807 (quoting Walker, (1 576). 28 Va. Leigh) at Neither the nor Com- majority monwealth has shown that facts to the relating acts perpetrated Ms. are against Abel connected or blended” “intimately acts against committed Ms. neither the Borghesani. Additionally, charged of Offenses. Two or more offenses be in the same indictment may Joinder charged, or information in a for each if count offense the offenses whether separate

felonies or misdemeanors or are of the or both, same similar character or are based on together the same act or or or transaction or on two more acts transactions connected or constituting a common or scheme parts plan.14 14This rule differs from Rule 3A:6 because it includes the “are of the same phrase ’’ similar character. necessary has shown that evidence nor the Commonwealth majority offenses Ms. Abel constitutes substan- Satcher’s prove against against offenses involving perpetrated tial portion proof as Borghesani, by Kirkpatrick. Ms. required (1955), Va. 86 S.E.2d Day In not discussed by to this case which is case similar remarkably which the Common- the same majority, rejected argument we In today. Day, majority approves wealth advances for robbery, sodomy defendant was indicted attempted rape, victim, Della The indictments were tried Claytor. together a single and the was of each offense and the fixed jury defendant convicted at death. his punishment Day,

In evidence was admitted of an attack on by Day attempted witness, Stanford, a Mrs. which occurred at 7:10 on p.m. February 1, 910, at 24-25. Day 1954. 86 S.E.2d at attacked Day, victim, that and to a Della his second later took her Claytor, evening 908, He vacant lot. Id. at 86 S.E.2d at 23. to her but attempted rape 908, unable Id. at 23-24. then was to do so. at 86 S.E.2d Day 908, at 24. sodomized and beat Id. at 86 S.E.2d took Claytor. Day to her and her two daughter daughter’s her home where Claytor 908-09, at small children were Id. at 86 S.E.2d 24. Soon present. thereafter, after a two of arrived and brief con- Claytor’s neighbors versation, 909, 24. left the Id. at 86 S.E.2d at Day. house home, Later that returned to broke the lock evening, Day Claytor’s door, the on and abducted Id. The found and Claytor. Day police five from Id. blocks her home. Claytor approximately While the the exact time of Day Day’s record does disclose she the attack on testified that called Claytor, Claytor’s daughter after abducted her mother from the house. Id. A Day police police he a from someone at officer testified that received complaint Id. facts February home at 7:46 on 1954. These Claytor’s p.m. indicate committed occurred Claytor that crimes Day’s against Thus, and 7:46 it between 7:10 sometime well before p.m. p.m. min- to the occurred within Claytor infer that first attack proper utes of his attack Mrs. Stanford. on attempted was Day testimony

The Commonwealth Stanford’s argued him by placing admissible because it tended to the accused identify “to the time the was assaulted and at victim vicinity woman,” his to make an assault on some show intent and plan Id. at in this case. sine non of the Commonwealth’s qua position Stanford, Mrs. testified that: 86 S.E.2d at 25. was on the corner of Grace standing and Streets Knight “[S]he for bus at waiting a 7:10 o’clock of February night she While was she 1954. there stated she saw the standing defendant, defendant, a man felt she sure reasonably was Earl her. coming towards She was and Day, frightened started run to and started run he after her. She the bus coming saw she and ran to bus and he her chased to the door of the bus. As she was like,‘You on the heard getting bus she him call something better

had run.’ said man she but [Day] [S]he did not see his features but the wore white man and a cap like the ones jacket belonging to were exhib- [Day] which ited her.... At time this over the same route [upon returning on the next she saw same man who had chased her at bus] Grace Knight and Streets near the corner of Locust standing Streets, and Grace which was one from city block Grace and Knight Streets. She never did see the man’s face so as to posi- him but did he tively she notice was identify a similar wearing cap those man jacket worn who had chased her.” 910-11, Id. at S.E.2d at 24-25.

Rejecting the Commonwealth’s argument, we reversed Day’s murder capital stated, conviction and remanded the case trial. for new We

clearly unequivocally: The be rule to derived from accepted the cases is that evi- dence which shows or tends to show the accused of guilty commission other of offenses at other times if is inadmissible its only relevancy is to show the character of the accused or his commit an disposition to offense similar to that if charged; but such tends evidence to other prove relevant fact of admissible, offense and is otherwise it be charged, will not excluded it because also shows him merely to have been guilty of another crime. 914,

Id. at 86 S.E.2d at 26-27. The without explanation, Day, deviates from which has majority, not been overruled and which has been cited as controlling authority 318, Commonwealth, 320, in numerous See v. Largin cases. 215 Va. 775, Commonwealth, (1974); S.E.2d 208 777 v. Bunting 309, 314, Commonwealth, 204, (1967); 157 S.E.2d 208 Rees v. 203 850, 870, 406, denied, (1962), Va. 127 S.E.2d 419 cert. 372 U.S.

267 964, denied, (1963); 373 Williams v. Common U.S. 947 reh’g 837, 423, wealth, 841, (1962); Sturgis Va. S.E.2d 426 203 127 268, 919, Fur (1955). Va. 88 S.E.2d 922 thermore, Day is the rule we articulated in consistent with Walker and we have cited as the in this Common Kirkpatrick Day law wealth our in holding Kirkpatrick. since See Va. at Largin, at S.E.2d 777. The our and concludes that the crimes majority ignores precedent however, record, are “connected” because of certain facts. The does not the inferences which the conclu- support upon majority’s First, states, sion is based. “the two crimes majority occurred the. within in a few about one-half hour of other.” The yards each facts, here not but are majority’s assertions are rather inferences. However, these inferences are not reasonable are flawed.

There is no evidence in the record which an inference supports that the crimes occurred within “about one-half hour each other.” Ms. was last seen alive on March at Borghesani 7:10 in her be p.m. She apartment. expected guest honor at a belated at 8:00 at a in birthday party p.m. friend’s home area Crystal City record does not establish the Arlington. time that Ms. left her en Borghesani apartment Roslyn route her friend’s home. The inference that can only be drawn is proper that Ms. left Borghesani her sometime between 7:10 apartment p.m. Furthermore, and 8:00 p.m. medical examiner testified that it was not to determine the time possible of Ms. death. Borghesani’s

There is no testimony the record from which a reasonable inference can be drawn that the attack on Ms. occurred Borghesani within a “few of the attack on Ms. Abel. yards” Ms. Borghesani’s body was found within a “few from yards” the location where Likewise, Ms. Abel was attacked. no there is evidence in the record an inference that were support both victims removed from the bicycle at a location behind the sound barrier wall. The record path does not reveal the exact simply location Satcher’s attack on Ms. Borghesani.

The majority, without states that “from the evi- any explanation, therefrom, dence and reasonable to be inferences drawn it clear is that the two or more acts case involved this constituted of a parts common scheme or This and is neither plan.” holding conclusory nor explained by by record or our majority supported prece- Furthermore, dent. differences majority ignores legal between crimes that are “connected” and crimes that “constitute a

268 blurs the distinc- of a common scheme or plan.” majority part are between these and treats them as concepts though they tion synonymous. 269, 802, we stated that “tes-

In 211 Va. 176 S.E.2d Kirkpatrick, other crimes is admissible where the other crimes consti- timony crime a tute a of the scheme of which the is general charged part 272, In v. Com- 211 Va. at 176 S.E.2d at 805. McWhorter part.” monwealth, 857, (1951), Va. we said: 191 63 S.E.2d 20

Another to the rule is that evidence of sim- exception general scheme, a or ilar acts is admissible to show common design, where there is‘such concurrence of common features plan that the various acts are to be as caused naturally explained by of which are the individual manifestations.’ general plan 870-71, (Citations omitted). Id. at at 26. also v. Boyd 63 S.E.2d See 546, Commonwealth, (1931). 156 Va. 157 S.E. whether two robberies were discussing The Court of Appeals, 6(B), of a common scheme or in the context of Rule 3A: part plan stated:

A or is if the ‘relationship common scheme plan present only of a offenses ... the existence among upon plan dependent and demonstrates that the that ties the offenses together objec- was to contribute to the achievement of a tive of each offense the commission of individual obtainable goal offenses.’ 1040, 1044, 407 S.E.2d

Spence App. (1991) (citations omitted). This definition of “common scheme been scholars. For by legal example, has also accepted plan” is found in 1 Wharton’s Criminal Evidence statement following ed„ 1985): 14th ed. (Charles E. Torcia § it to estab- crimes is admissible when tends Evidence of other a series of common or scheme design, embracing lish a plan, crimes, each other the crime so related to charged, including tends to the other. of one prove proof Id. Commonwealth, Cheng relies 240 Va. majority upon (1990), did

393 S.E.2d 599 to its that the trial court holding support not err by Satcher’s motion for trials. failing grant separate does not the who Cheng Dung support majority’s position. Cheng, murder, was indicted for out of a arising several offenses a filed ‘ motion to sever the indictment for of a pretrial possession ‘sawed- off” for mur- shotgun from indictments offenses including capital der, abduction, abduction, mur- to commit and robbery, conspiracy victim, der of the Hsiang Liu. and his cohorts had to commit a In fur-

Cheng planned robbery. of therance the cohorts directed his the shot- plan, Cheng “bring abduction, gun and the On the jeep.” evening the robbery, victim, murder of the a the in bag containing shotgun placed Cheng’s We stated that the jeep. offense and the shotgun possession other offenses were connected and the evidence indicated that the offenses were of a common scheme or parts plan.

Here, unlike there Cheng, are victims who were multiple attacked at different times and there nois evidence that the offenses consti- tute of a parts common scheme or did not plan. Satcher commit any act in his crimes Ms. Abel which contributed to the achieve- against Thus, ment of his crimes against Ms. it is not Borghesani. surprising that the fails to articulate its so-called common scheme or majority because it plan is unable to do so. case, in a

Today, majority, murder creates a defi- capital new nition for word “connected” which the Commonwealth permits cases try when relevance is to show the character jointly only of the accused accused’s to commit offenses disposition similar to those I charged. fail to understand mur- why, capital case, der from majority established which we departs precedent have since 1829. See Walker v. applied consistently (1 574. I fail Leigh) also to understand why majority makes effort no to reconcile new definition of its “connected” our clear established which the either precedent has majority Furthermore, or overruled conveniently ignored. majority, by the distinction between “crimes that are connected” and blurring “crimes that constitute a or common scheme has created con- plan” fusion this distinction in the law. important

I am not aware of other case Court which decided this we have trial approved crimes which are not con- separate nected and which are not a of a Such common scheme part plan. is so unfair and that it practice constitutes denial unjust the federal con- of law guaranteed by to due process Satcher’s rights Const, XIV, amend. U.S. Virginia. and the Constitution stitution Carolina, (1973) 1; 526-27 (citing U.S. Ham v. South § Const, I, art. (1941)); Va. 314 U.S. Lisenba v. California, Therefore, dissent. I respectfully 8.§

Case Details

Case Name: Satcher v. Commonwealth

Court Name: Supreme Court of Virginia

Date Published: Sep 18, 1992

Citation: 421 S.E.2d 821

Docket Number: Record 920247 and 920248

Court Abbreviation: Va.