Powell v. Commonwealth

Present: All the Justices

PAUL WARNER POWELL

OPINION BY

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

January 16, 2004

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY

Herman A. Whisenant, Jr., Judge

In this appeal, we review the capital murder conviction and

sentence of death imposed upon Paul Warner Powell for the murder

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

attempted rape. Code § 18.2-31(5).

I. BACKGROUND

A. Powell’s First Trial and Appeal

Powell was originally convicted of the capital murder of

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

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

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

attempted capital murder of Stacey’s younger sister, Kristie

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

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

1

The abduction, rape, and attempted capital murder

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

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

appeal. Powell had also been tried for robbery and attempted

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

Code § 18.2-53.1. He was acquitted of those crimes.

Upon review of the capital murder conviction and the death

sentence imposed upon Powell, this Court reversed the conviction

on various grounds including a finding that the indictment

charging Powell with capital murder in the commission of robbery

and/or attempted robbery had been improperly amended to include

a charge of capital murder “during the commission of or

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

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

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

indictment limited the Commonwealth to proving that the

“gradation crime was a rape occurring before or during the

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

evidence upon which the jury could have found that Powell

committed the rape of Kristie before or during the murder of

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

We summarized the consequence of these holdings in the

conclusion of the opinion, stating:

there is simply no evidence upon which the jury could

have relied to find that Powell committed or attempted

to commit any sexual assault against Stacey before or

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

2

Following the presentation of the Commonwealth’s case-in-

chief in Powell’s first trial, the Commonwealth had conceded

that there was no evidence of forcible sodomy or attempted

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

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

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

issue raised in this appeal.

2

occur after the murder of her sister. Accordingly,

under the circumstances of this case, the evidence at

best would have supported a conviction for first

degree murder.

For these reasons, we will reverse Powell’s

conviction for capital murder . . . and remand the

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

first degree murder for the killing of Stacey Reed, if

the Commonwealth be so advised.

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

The mandate from this Court to the trial court tracked the

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

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

degree murder for the killing of Stacey Reed, if the

Commonwealth be so advised.”

B. Events and Proceedings Following Remand

Powell’s Letter

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

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

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

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

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

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

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

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

3

Powell described how he had attempted to initiate consensual

sexual intercourse with Stacey, which he had previously

admitted. Powell then revealed that when Stacey resisted his

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

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

hard way.”

Powell then described how Stacey had “started fighting with

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

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

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

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

Continuing, Powell stated that, at his direction, Stacey

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

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

Powell refused to allow Stacey to answer the telephone and

ordered her to resume disrobing. When she refused, Powell

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

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

back and Powell removed the knife. Stacey then stumbled to

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

3

Powell had previously written to the Commonwealth’s

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

degree murder charge for the killing of Stacey Reed.

4

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

see her breathing anymore.”

The New Indictment

Armed with this new evidence, the Commonwealth elected to

nolle prosequi the indictment in the remanded case, under which

it was limited to trying Powell for first degree murder under

our mandate, and sought a new indictment against Powell for

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

indictment charging Powell with the capital murder of “Stacey

Lynn Reed during the commission of or subsequent to the

attempted rape of Stacey Lynn Reed.”

C. Powell’s Second Trial

Motions to Dismiss the Indictment

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

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

Supreme Court of Virginia issues an opinion concerning a case,

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

directive of the opinion and mandate from this Court in his

first appeal limited his retrial to a charge no greater than

first degree murder, regardless whether that trial was conducted

under the original indictment or a new indictment. The

Commonwealth filed a response to this motion, asserting that the

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

applicable to the December 3, 2001 indictment because Powell had

5

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

Stacey Reed in the commission or attempted commission [of]

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

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

the Commonwealth contended that the December 3, 2001 indictment

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

nor considered by the Virginia Supreme Court.” Following a

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

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

dated May 6, 2002.

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

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

court in support of and in opposition to this motion parallel

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

accordingly, we will only summarize the essential points of

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

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

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

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

premised on that gradation offense. The Commonwealth responded

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

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

bill of particulars provided at Powell’s request indicated that

only Kristie was the victim of the sexual assault gradation

6

offenses charged in the amended indictment. Similarly, the

Commonwealth contended that our comments concerning the

insufficiency of the evidence to prove a sexual assault or

attempted sexual assault against Stacey were not directed toward

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

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

the victim of such an assault or attempt.

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

second motion to dismiss the indictment. After hearing

argument, the trial court stated that by identifying Kristie as

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

particulars, the Commonwealth had clearly identified her as the

victim of those gradation crimes in the amended indictment for

capital murder. The trial court also agreed with the

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

to prove any sexual assault or attempted sexual assault against

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

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

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

entered an order overruling Powell’s second motion to dismiss

the indictment.

Other Pre-trial Motions

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

statutory scheme for charging a capital crime and imposing a

7

death sentence declared unconstitutional on various grounds. On

appeal, Powell reasserts only some of these arguments and does

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

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

discussion of the relevant assignment of error, infra.

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

the Commonwealth’s Attorney’s office disqualified from

prosecuting his case. Powell contended that the Commonwealth’s

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

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

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

Stacey. Powell further contended that the offensive nature of

that letter and his other conduct toward the Commonwealth’s

Attorney had created such a level of animosity that the

Commonwealth’s Attorney would not be able to objectively pursue

justice, but would instead seek to satisfy a personal vendetta

against Powell. Powell further contended that this taint of

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

office, and further asserted that these attorneys would be

potential witnesses called to give testimony concerning the

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

4

Powell further contended that one of the Assistant

Commonwealth’s Attorneys while in private practice had

represented Powell in an unrelated criminal matter and, thus,

8

On May 1, 2002, the Commonwealth filed responses to

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

charging a capital crime and imposing a death sentence declared

unconstitutional and to disqualify the Commonwealth’s Attorney’s

office. With respect to the former, the Commonwealth asserted

that all the issues raised therein had previously been

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

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

Commonwealth asserted that there was no evidence of bias on the

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

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

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

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

of impropriety should be raised through a disciplinary complaint

proceeding.

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

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

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

motions to have Virginia’s statutory scheme for charging a

capital crime and imposing a death sentence declared

unconstitutional and to disqualify the Commonwealth’s Attorney’s

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

on appeal.

9

office from prosecuting the case. Following that hearing, the

trial court entered an order overruling these motions without

comment.

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

evidence concerning his abduction, rape, and attempted murder of

Kristie Reed from his trial. Powell contended that because he

was charged only with the capital murder of Stacey Reed

predicated on an attempted rape of her, evidence of his

subsequent attack on Kristie was irrelevant or that any

probative value it might have would be overborne by its unduly

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

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

held December 23, 2002, the Commonwealth asserted that evidence

concerning the attack on Kristie was part of a continuing

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

intent in attempting the rape of Stacey.

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

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

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

concerning the issue, filed a motion seeking to have Code

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

jury to consider evidence relating to the future dangerousness

and vileness aggravating factors without full protection of due

process to the defendant to confront witnesses. Powell also

10

asserted that the statutory definitions of the aggravating

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

jury verdicts. The Commonwealth filed a brief in response to

this motion, asserting that the issue of the constitutionality

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

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

various statements he made to police during the initial

investigation of the crimes. Powell alleged that after giving

an initial statement following waiver of his Miranda rights, he

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

Powell contended, any statement he made to police without a

readvisement and waiver of his Miranda rights should be

suppressed. The Commonwealth responded that the suppression

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

doctrine of res judicata barred consideration of the issue in

his second trial. 5 Powell filed a supplemental motion on

December 17, 2002 asserting that a statement taken by an

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

following his first trial, should be suppressed because his

counsel was not present. The Commonwealth responded that Powell

had been advised of and waived his Miranda rights prior to

5

Powell did not contest the trial court’s failure to

suppress his statements in the appeal of his first conviction.

11

giving this statement and that he was not entitled to counsel

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

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

and the formal proceedings on the prior indictments had

concluded.

In summarizing its rulings on these motions during the

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

Powell had waived his Miranda rights with respect to the

statement made after his first trial but prior to the bringing

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

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

indicated that it would deny the motion to suppress the

statements from the initial investigation of the crimes,

incorporating by reference the finding made during the first

trial with respect to those statements. The trial court further

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

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

guilt. The trial court entered an omnibus order denying all

these motions as well as the motion challenging the

constitutionality of Code § 19.2-264.4(B).

Jury Voir Dire

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

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

potential jurors. In questioning the first panel, the trial

12

court inquired whether “any of you have acquired any information

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

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

panel members indicated that they had not. The Commonwealth

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

should hear something which would jog your memory about the

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

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

five panel members each indicated that they could do so.

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

attempted to ask the following question:

You’re going to hear in this case that the

Defendant has already been tried and convicted of

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

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

that the Supreme Court of Virginia overturned the −

At this point, the Commonwealth objected and during a bench

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

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

already indicated that they had not heard of the case

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

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

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

responded that because the evidence would disclose the fact of

his prior convictions and the reversal of his capital murder

conviction and death sentence on appeal, the prohibition of

13

Barker did not apply. He further contended that because a

jury’s knowledge of a prior conviction was potentially

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

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

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

jurors’ bias that would result from hearing that evidence.

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

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

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

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

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

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

trial court ruled that Powell could not question the jurors

about their potential bias based upon such evidence being likely

to be presented during the trial.

The Commonwealth then inquired, “Are we going to strike

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

question?” When the trial court indicated that it would

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

objected that he was “not sure that instructing them is

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

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

panel had already indicated they were unaware of the case and

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

14

Guilt-Determination Phase

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

letter to the Commonwealth’s Attorney in which Powell confessed

to the attempted rape of Stacey, the evidence presented during

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

markedly different from that received during the first trial.

Because we have thoroughly recounted that evidence in reviewing

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

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

evidence except with respect to proof of the attempted rape of

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

but will suffice with a summary of the essential details.

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

had been acquainted with Stacey and her family for approximately

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

supremacist, objected to Stacey dating Sean Wilkerson, a black

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

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

find Powell waiting for her. When Powell learned that Robert

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

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

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

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

millimeter pistol. Id.

15

During the initial investigation, Powell claimed that he

and Stacey had argued about her relationship with Wilkerson and

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

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

stabbing Stacey deliberately or otherwise injuring her, an

autopsy revealed that she had suffered multiple blunt force

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

her merely having fallen during a struggle, but consistent with

a deliberate stomping. The autopsy also showed that the wound

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

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

S.E.2d at 348.

Powell denied having attempted to sexually assault Stacey,

but when questioned again on that point would not give the

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

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

Stacey.”

Leaving Stacey for dead, Powell smoked a cigarette and

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

waiting for Kristie to return home from school. When she

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

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

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

16

attempted to kill her by strangulation and by cutting her wrists

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

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

Powell moved to strike the evidence on the ground that the

Commonwealth had not presented sufficient evidence to

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

that he had attempted to rape Stacey. The Commonwealth pointed

to the physical circumstances, such as the disheveled condition

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

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

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

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

offer any evidence.

The jury was instructed, heard closing arguments, and

retired to consider its verdict. After two hours of

deliberation, the jury found Powell guilty of capital murder.

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

verdict was unanimous.

Penalty Determination Phase

During the penalty determination phase, the Commonwealth

presented evidence of Powell’s criminal record, including three

convictions for contributing to the delinquency of a minor, two

larceny convictions, and his convictions for the abduction,

rape, and attempted capital murder of Kristie. The Commonwealth

17

further presented evidence concerning Powell’s extreme racist

views. Additional evidence showed that Powell had tortured cats

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

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

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

the investigator that he admired Charles Manson and Adolf

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

presented evidence that Powell wrote an abusive letter to

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

woman who resembled Stacey.

Powell presented evidence from his parents and younger

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

officer. This evidence dealt primarily with Powell’s upbringing

and transfer of custody from his mother to the Department of

Youth and Family Services following his juvenile offenses. The

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

The psychologist further testified that, following his

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

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

serious disciplinary infractions.” The psychologist did not

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

problems,” but testified that Powell’s clinical history

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

behavior as a child suggested Powell had “an under controlled

18

temperament.” The psychologist further testified that the

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

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

certain forms of serious depression.”

After ninety minutes of deliberation, the jury returned a

unanimous verdict sentencing Powell to death. The jury

indicated that the sentence was predicated on both the future

dangerousness and vileness aggravating factors.

Sentencing

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

and received a pre-sentence report and victim impact evidence

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

of the death sentence was not appropriate, asserting that so

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

present a continuing danger to society and that a life sentence

without possibility of parole was adequate punishment. The

Commonwealth responded that Powell had shown no remorse

following his conviction in the first trial. The trial court

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

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

of the capital murder conviction and expedited the appeal on our

docket. Code § 17.1-313(F).

19

II. DISCUSSION

Powell raises twelve assignments of error, the first two of

which merely restate the elements of the statutory review of any

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

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

considered the issues below.

A. Failure to Dismiss the Capital Murder Indictment

In his sixth and seventh assignments of error, Powell

contends that the trial court erred in denying his motions to

dismiss the capital murder indictment against him. This was the

principal issue addressed by the parties during oral argument

before this Court. The various positions under which Powell

asserts that he was not subject to trial under the capital

murder indictment can be generally summarized as follows:

(1) The opinion and mandate of this Court from

Powell’s first trial limited his retrial for the

killing of Stacey Reed to a charge no greater than

first degree murder on any indictment.

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

not barred under a new indictment, Powell had been

acquitted, either actually or by implication, of the

attempted rape of Stacey Reed in his first trial and,

thus, the law of the case doctrine barred his being

tried for capital murder based upon the attempted rape

of Stacey as the gradation offense.

(3) Principles of double jeopardy bar his retrial for

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

indictment in his first trial did not specify the

victim of the gradation offense.

20

Effect of Prior Opinion and Mandate

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

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

A trial judge is bound by a decision and mandate

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

outside [its] jurisdiction. A trial court has no

discretion to disregard [a] lawful mandate. When a

case is remanded to a trial court from an appellate

court, the refusal of the trial court to follow the

appellate court mandate constitutes reversible error.

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

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

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

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

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

judgment and remanding the case).

Relying on this principle, Powell contends that the trial

court was without authority to retry him on a new indictment

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

reliance, however, is misplaced.

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

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

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

directive of the appellate court certifying a judgment in a

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

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

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

21

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

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

thereby prohibited from acting on matters not constrained by the

language of the mandate, construed in light of the appellate

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

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

absence of exceptional circumstances, it compels compliance on

remand with the dictates of a superior court and forecloses

relitigation of issues expressly or impliedly decided by the

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

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

(1st Cir. 1993)).

Undoubtedly, had the trial court permitted the Commonwealth

to retry Powell for capital murder on the original amended

indictment invalidated by our decision in reviewing his first

conviction, this would have been violative of our mandate and

reversible error. Similarly, had the Commonwealth dismissed

that indictment and sought a new indictment charging Powell with

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

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

that indictment to stand.

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

first appeal required the Commonwealth to retry Powell on the

original indictment, abridged to cure the defects found by this

22

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

directive of the mandate expressly stated that Powell was to be

retried on that indictment based on the record that was before

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

advised.”

Nor did our opinion or mandate expressly preclude the

possibility of trying Powell on a new indictment charging

capital murder premised on a different gradation offense after

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

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

revealed that he had attempted to rape Stacey before he killed

her is an exceptional circumstance that merits a narrow

application of the mandate rule.

We recognize that, generally, serial prosecutions are not

permitted where the Commonwealth deliberately refrains from

bringing criminal charges arising out of the same act or

transaction while prosecuting others in order to gain the

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

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

however, given the unexpected and possibly unique circumstance

of evidence of an uncharged offense that was not previously

known or available coming to light after the conclusion of the

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

23

Accordingly, we hold that the trial court correctly ruled

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

appeal did not bar the Commonwealth from dismissing the

indictment against him and bringing a new indictment charging

him with capital murder premised upon a gradation offense not

previously charged by the Commonwealth and based upon evidence

that was not previously known or available to the Commonwealth

at the time of his first trial.

Acquittal under the “Law of the Case”

Powell contends that although he was not charged in a

separate indictment with the attempted rape of Stacey in his

first trial, the Commonwealth nonetheless presented evidence

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

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

support this claim, Powell relies upon statements made by the

Commonwealth’s Attorney during his first trial that the evidence

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

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

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

Commonwealth had argued against his motion to strike the

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

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

have sex with [Stacey].”

24

Powell contends that as neither the amended indictment for

capital murder nor the instructions given to the jury specified

the victim of the sexual assault gradation crimes, the

Commonwealth intended for the jury in his first trial to

consider the possibility that Powell attempted to rape Stacey.

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

question to the trial court “seeking clarification whether the

rape of Kristie could satisfy the gradation crime requirement

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

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

rejected the theory that he had attempted to rape Stacey.

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

Powell asserts that because the jury in his first trial rejected

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

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

case prohibits the Commonwealth from retrying that issue under a

new indictment. 6 Powell further points to statements in the

opinion from his first appeal concerning the insufficiency of

the evidence to prove an attempted sexual assault of Stacey as

6

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

describing the effect of his alleged “acquittal” of the

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

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

doctrine in asserting the preclusive effect of his prior trial

and appeal.

25

confirming that he was charged with capital murder based on that

gradation offense.

The Commonwealth contends that by identifying Kristie as

the victim of the rape or attempted rape in responding to

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

indicated that Powell was not charged or on trial for the

capital murder of Stacey in the commission of the attempted rape

of Stacey. Therefore, the Commonwealth asserts that Powell was

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

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

gradation offense.

Powell contends that “the bill of particulars is irrelevant

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

that Powell was charged with capital murder in the commission of

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

bases this contention on the statements in the opinion reversing

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

whole is devoid of any evidence that Powell attempted to rape

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

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

relied to find that Powell committed or attempted to commit any

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

Powell contends that by these statements we indicated that the

26

question whether he had raped or attempted to rape Stacey had

been at issue in his first trial. We disagree.

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

first trial considered whether Powell attempted to rape Stacey

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

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

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

subsequent criminal prosecution by the law of the case doctrine

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

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

jury could have grounded its verdict upon an issue other than

that which the defendant seeks to foreclose from consideration,”

the prior judgment will not be taken as deciding that particular

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

practical frame and viewed with an eye to all the circumstances

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

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

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

Court’s observation that the evidence therein was insufficient

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

showing that the previous jury necessarily decided that issue

against the prosecution fails to take into account the effect of

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

not for the purpose of charging the offense. The indictment

27

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

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

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

of particulars is to supply additional information concerning an

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

accused of the charges against him with sufficient precision to

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

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

further prosecution for the same offense. See Wade v.

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

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

1988).

The bill of particulars in Powell’s first trial clearly

limited the prosecution of the capital murder of Stacey under

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

Kristie. Nevertheless, Powell asserts that the various

statements of the Commonwealth during his first trial with

respect to Powell’s effort to initiate consensual intercourse

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

suggested a motive for his subsequent attack on her sister and

attempted to influence the jury into believing that Stacey was

also the victim of an attempted sexual assault. The fact

remains that Powell was not charged with having attempted to

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

28

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

to conclude that the jury necessarily decided that issue against

the prosecution.

Powell is also mistaken in his interpretation of our

statements regarding his first trial that the record contained

insufficient evidence for the jury to have found that Powell

attempted to rape Stacey. A careful reading of our opinion

shows that these statements were not intended to convey that

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

statements were observations made to clarify that the amended

indictment must have been intended to charge Powell with the

capital murder of Stacey premised upon the gradation offense of

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

drafting error. 7

Powell also contends that even if the jury had not

impliedly acquitted him of the capital murder of Stacey premised

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

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

conviction nonetheless was to expressly acquit him of that crime

because we found the evidence in that trial insufficient to

7

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

properly drafted, would not have been permitted because the

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

Kristie] as the gradation crime for the capital murder of

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

29

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

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

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

trial at best would have supported a conviction for first degree

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

subsequent retrial. Powell contends that Burks stands for the

proposition that the determination of an appellate court that

the trial court erred in permitting the jury to consider a

charge not supported by the evidence acts as an acquittal on

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

the prohibition against double jeopardy.

Our conclusion that, lacking evidence of a sexual assault

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

only for first degree murder was based upon “the circumstances

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

Nothing in that statement implies that Powell had been acquitted

of capital murder premised on any possible gradation offense,

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

Commonwealth from seeking to indict Powell for the capital

murder of Stacey with the attempted rape of Stacey as the

gradation offense under the exceptional circumstances occasioned

by Powell’s voluntary confession.

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

denying Powell’s motions to dismiss the indictment for capital

30

murder on the ground that the Commonwealth was prohibited from

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

of his former trial and appeal.

Double Jeopardy

Powell also contends that the trial court should have

dismissed the indictment against him because his prosecution

under that indictment violated the guarantee of the Fifth

Amendment of the Constitution of the United States against being

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

asserts that having been indicted once for a violation of Code

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

guarantee of protection against being placed in double jeopardy

prohibited the Commonwealth from indicting him a second time for

that murder under the same subsection of the capital murder

statute.

During oral argument of this appeal, Powell acknowledged

that the Commonwealth may indict and convict an accused for

multiple counts of capital murder of a single victim under

different subsections of Code § 18.2-31 without violating the

constitutional protection against double jeopardy. See Bailey

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

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

counts of capital murder of the same victim under Code

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

31

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

gradation offenses, the Commonwealth may indict the accused for

separate offenses of capital murder of a single victim premised

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

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

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

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

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

General Assembly intended for each statutory offense [in Code

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

Id.

By statutory definition, capital murder is limited to the

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

under specific circumstances or in the commission or attempted

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

have frequently referred to these crimes as gradation offenses

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

murder, they elevate what would otherwise constitute murder of

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

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

gradation offenses of “rape or attempted rape, forcible sodomy

or attempted forcible sodomy or object sexual penetration.” In

Payne, we concluded that the rape and object sexual penetration

of the same victim are separate and distinct gradation offenses

32

and, therefore, support two capital murder convictions

consistent with double jeopardy protections. Id. While Payne

is instructive insofar as it establishes that separate and

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

it does not resolve Powell’s case.

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

rather than with two separate crimes under the amended

indictment and the 2001 indictment is principally premised upon

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

rape or attempted rape. Because the amended indictment in his

first trial, while identifying Stacey as the victim of the

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

rape or attempted rape, Powell contends that proof of the

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

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

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

gradation offenses of rape or attempted rape, and the subsequent

indictment that expressly identified Stacey as the victim of

attempted rape violated his constitutional guarantee against

double jeopardy.

We agree with Powell that when an indictment does not

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

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

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

33

however, has again overlooked the significance of the bill of

particulars provided by the Commonwealth in his first trial. As

we have already explained, the Commonwealth expressly identified

Kristie as the victim of the gradation offenses for the capital

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

particulars was filed well in advance of the trial and before

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

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

subjected to double jeopardy attaches in a criminal case when

the jury is impaneled and sworn”).

During oral argument of this appeal, Powell contended that

the bill of particulars only limits the Commonwealth’s ability

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

indictment, and jeopardy attaches as to the indictment as worded

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

disagree.

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

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

particulars and the indictment must be read together.”

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

that where, prior to the attachment of jeopardy, the

Commonwealth limits the prosecution of a capital murder,

undifferentiated in the indictment by the identity of the victim

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

34

gradation offense in a bill of particulars, jeopardy will attach

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

of particulars.

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

not err in refusing to dismiss the indictment for capital murder

as violative of Powell’s double jeopardy protection.

B. Constitutionality of Virginia’s Capital Murder Statutes

In his third and eleventh assignments of error, Powell

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

the Virginia capital murder statutes declared unconstitutional.

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

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

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

without citation to authority. 8 The failure to adequately brief

an assignment of error constitutes a waiver of the argument.

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

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

8

At trial, Powell further contended that the expedited

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

violated a defendant’s constitutional right to equal protection.

Powell contended that by eliminating an intermediate review by

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

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

He further contended that expediting death sentence appeals on

our docket “disadvantaged death-sentence defendants by providing

them with substantially less time than other criminal defendants

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

issues on appeal.

35

error not briefed are waived even where trial record contains

written argument addressing same issue).

Moreover, the arguments raised by Powell have been

previously considered and rejected by this Court. The arguments

raised by Powell and recent decisions rejecting those arguments

are:

That the statutes fail to provide meaningful guidance with

respect to the vileness and future dangerousness aggravating

factors and that the jury is not provided adequate guidance with

respect to the application of aggravating and mitigating

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

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

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

That permitting evidence of unadjudicated criminal conduct

to be used to establish the defendant’s future dangerousness

fails to meet the “heightened reliability requirement” of the

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

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

1123 (2003).

That the trial court is improperly vested with discretion

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

is permitted to consider hearsay evidence in the pre-sentence

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

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

36

That the mandatory proportionality review procedures

employed by this Court fail to meet constitutional standards.

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

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

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

(2000).

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

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

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

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

“many of the procedural safeguards that heretofore have only

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

be extended to the sentencing phase.” Powell reasons that

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

allow the trial judge to determine whether there were

aggravating factors sufficient to warrant the imposition of the

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

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

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

death-eligible capital murder.” Powell contends that the

standards of proof and rules of evidence applicable to the

determination of guilt must also be applied to the determination

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

prior to Ring, this precludes the Commonwealth from presenting

37

under a “relaxed evidentiary standard” evidence of unadjudicated

criminal conduct or hearsay evidence when the declarant is not

available for cross-examination as required by the confrontation

clause.

The Commonwealth responds that Ring does not alter the

analysis of the constitutionality of the procedures applied

during the penalty determination phase of a capital murder trial

in Virginia. Rather, the Commonwealth contends that the

procedures for the admission of relevant evidence during the

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

to be fully in accord with the Sixth Amendment due process

concerns underpinning the decision in Ring. We agree with the

Commonwealth.

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

unwarranted for the obvious reason that the statutory scheme at

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

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

whether aggravating factors permitting the imposition of the

death penalty were present, is markedly different from that of

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

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

opinion in Ring suggests that the Court intended to revisit

broader issues of due process protections afforded in the

penalty determination phase of all capital murder trials.

38

We further reject Powell’s contention that there is a

“relaxed evidentiary standard” applicable to the penalty

determination phase of a capital murder trial in Virginia. To

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

have consistently held, that the Commonwealth must prove the

existence of one or both aggravating factors beyond a reasonable

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

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

Powell’s contention that the introduction of evidence of

unadjudicated criminal acts is not admissible because Ring

somehow refines the need for “heightened reliability” in capital

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

reassertion of the same argument raised in his prior motion and

consistently rejected by this Court. Jackson, Jerry v.

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

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

permits the introduction of hearsay evidence not otherwise

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

9

On brief, the Commonwealth suggests that Powell has

confused the evidentiary standard applicable to the penalty

determination phase with that applicable to the trial court’s

consideration of the presentence report. Powell did not respond

to this assertion in his reply brief and does not otherwise

assert that Ring has any implication to the post-verdict

sentencing procedure. Accordingly, we express no opinion on

that issue.

39

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

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

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

to have the Virginia capital murder statutes declared

unconstitutional.

C. Failure to Disqualify the Commonwealth’s Attorney

In his tenth assignment of error, Powell contends that the

trial court erred in failing to grant his motion to disqualify

the Commonwealth’s Attorney and his office from prosecuting

Powell on the new indictment. Powell asserts the “grossly

offensive personal attacks” on the Commonwealth’s Attorney in

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

interest because the Commonwealth’s Attorney “had a personal

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

contends, because the personal attacks in his letter

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

of animosity towards Powell.” The Commonwealth responds that

the Commonwealth’s Attorney represented to the trial court that

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

within the trial court’s discretion to determine whether to

disqualify him. We agree with the Commonwealth.

The due process rights of a criminal defendant under both

the Virginia and United States Constitutions are violated when a

Commonwealth’s Attorney who has a conflict of interest relevant

40

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

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

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

the question whether there is a conflict of interest is

dependent upon the circumstances of the individual case, and the

burden is on the party seeking disqualification of the

prosecutor to present evidence establishing the existence of

disqualifying bias or prejudice. The determination whether the

evidence supports a finding of a conflict of interest is a

matter committed to the sound discretion of the trial court.

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

149 (1997).

The issue may arise where the prosecutor has had an

attorney-client relationship with the parties involved whereby

he obtained privileged information that may be adverse to the

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

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

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

prosecutor has some direct personal interest arising from a

financial interest, kinship, or close friendship such that his

objectivity and impartiality are called into question. See,

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

of these circumstances applies to the present case.

41

Beyond these categories of clear and direct conflicts of

interest and ethical bars to a particular attorney prosecuting a

particular defendant, there is the broader consideration of

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

nature of the judicial process has resulted in such enmity

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

overbear his professional judgment in seeking fairly and

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

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

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

gullibility. Disinterestedness does not mean child-like

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

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

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

prosecutor’s role.

The adversarial nature of criminal prosecutions

unsurprisingly tends to engender some level of friction between

the prosecutor and the defendant in difficult cases, especially

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

contempt and disrespect for the prosecutor. However, merely

demonstrating a history of one-sided acrimony between the

defendant and the prosecutor is insufficient to establish a

conflict of interest or prosecutorial misconduct with respect to

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

42

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

a defendant would have an incentive to deliberately incite such

enmity. The evidence must reflect that the prosecutor is acting

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

those parameters in furtherance of a personal animus against the

defendant.

Powell’s October 21, 2001 letter undoubtedly was intended

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

the trial court was within its discretion to accept the

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

effect on his professional judgment in seeking fairly and

impartially to see justice done. Moreover, nothing in the

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

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

that the trial court did not abuse its discretion in overruling

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

D. Failure to Exclude Testimony of Kristie Reed

In his ninth assignment of error, Powell contends that the

trial court erred in permitting the Commonwealth to call Kristie

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

attempted murder of her during the guilt determination phase of

43

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

the murder of Stacey was not relevant to prove his culpability

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

prejudicial. 11

The Commonwealth responds that evidence of the rape and

attempted murder of Kristie, including her testimony and its

supporting exhibits, was admissible because those acts were

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

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

perpetrator of all the crimes committed in the course of

carrying out that plan. In addition, the Commonwealth contends

that evidence of the subsequent attack on Kristie was probative

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

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

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

We agree with the Commonwealth.

10

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

evidence of his rape and attempted murder of Kristie. On

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

testimony and the exhibits introduced in its course.

11

Powell also asserts that Kristie’s testimony was

unnecessary because it was cumulative of other evidence and

should more properly have been received as “victim impact

testimony” during sentencing. These arguments were not made at

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

Rule 5:25.

44

Generally, evidence of other offenses is inadmissible in a

criminal prosecution, but it is a well-established exception

that such evidence is admissible to show a common criminal

scheme when the various acts are naturally explained as the

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

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

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

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

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

Kirkpatrick we explained that:

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

the conduct and feeling of the accused toward his

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

element of the offense charged. Such evidence is

permissible in cases where the motive, intent or

knowledge of the accused is involved, or where the

evidence is connected with . . . the offense for which

the accused is on trial.

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

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

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

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

favorable to the Commonwealth it is an unassailable fact, that

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

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

Powell’s rape and attempted murder of Kristie was directly

probative of his motive and intent in the attempted rape and

45

murder of Stacey. Moreover, Kristie’s eyewitness testimony

placing Powell in the home when she arrived and identifying him

as her assailant was critical to establishing Powell’s identity

as the perpetrator of the crimes that preceded the criminal acts

committed against her.

Powell’s contention that the graphic and emotional

testimony of the victim of a brutal rape and attempted murder

should have been excluded because its probative value was

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

jury is equally without merit. All evidence tending to prove

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

evidence is powerful because it accurately depicts the gravity

and atrociousness of the crime or the callous nature of the

defendant does not thereby render it inadmissible. Moreover,

direct evidence, such as eyewitness testimony, is rarely subject

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

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

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

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

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

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

testimony of Kristie Reed from the guilt determination phase of

the trial.

46

E. Failure to Suppress Powell’s Statements to Police

In his twelfth assignment of error, Powell contends that

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

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

the assignment of error and makes references to the ability of

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

silent, Powell does not expressly restate the contention made in

the trial court that statements made during the initial

investigation prior to his first trial should have been

suppressed because at the conclusion of his first interview he

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

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

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

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

Powell does assert that the trial court erred in not

suppressing the statement concerning Powell’s October 21, 2001

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

investigator. Powell contends that because he was still

represented by counsel from his first trial, the investigator

should not have questioned him without his counsel being

present.

The Commonwealth responds that the Sixth Amendment right to

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

investigator was gathering evidence and for which Powell would

47

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

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

Amendment rights immediately prior to giving the November 2,

2001 statement, the Commonwealth contends that the statement was

properly admitted. We agree with the Commonwealth.

The Sixth Amendment right to counsel “arises from the fact

that the suspect has been formally charged with a particular

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

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

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

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

crime for which Powell was tried and convicted in the present

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

previously convicted. Powell had not been formally charged with

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

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

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

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

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

knowingly waived his Fifth Amendment right to counsel at the

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

in failing to suppress Powell’s statement.

48

F. Limiting Voir Dire and Failure to Strike Jury Panel

In his fourth assignment of error, Powell contends that the

trial court erred in not permitting him to question prospective

jurors about whether knowledge of Powell’s prior conviction for

capital murder and its subsequent reversal on appeal would

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

prospective juror with knowledge of a defendant’s prior

conviction is subject to disqualification on that ground.

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

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

where several jurors had pretrial knowledge of the defendant’s

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

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

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

have been able to question jurors on the effect this evidence

would have on them.

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

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

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

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

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

relevant to determine whether they may be subject to being

removed from the venire for cause.

49

The test of relevancy is whether the questions relate

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

If an answer to the question would necessarily

disclose, or clearly lead to the disclosure of the

statutory factors of relationship, interest, opinion,

or prejudice, it must be permitted.

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

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

The question that Powell attempted to ask the first panel

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

clearly lead to the disclosure of the statutory factors of

relationship, interest, opinion, or prejudice” of the

prospective jurors. The panel had already indicated that they

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

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

have revealed any preexisting opinion or bias with respect to

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

potential response to the evidence that he expected the

Commonwealth to present.

Whether to permit a party to ask a question that goes

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

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

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

the potential response of the jurors to the evidence that would

be adduced at trial concerning his prior conviction.

50

In his eighth assignment of error, Powell contends that,

having denied him the opportunity to question the potential

jurors on this point, the trial court should have disqualified

for cause the five members of the first panel because his

attempt to question them provided them with knowledge that he

had been previously convicted for the capital murder of Stacey

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

automatic exclusion under Barker.

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

provided the five prospective jurors with sufficient information

to raise the concern for potential prejudice that the jurors’

full knowledge of the defendant’s prior conviction raised in

Barker, that circumstance arose here through Powell’s own

conduct during the voir dire. The record demonstrates that

Powell’s counsel was fully aware that advising the prospective

jurors that Powell had been previously convicted of capital

murder carried with it the potential for creating bias against

his client, but apparently deemed this risk acceptable in order

to seek the strategic advantage of being able to test the

jurors’ potential response to the evidence concerning that

conviction during the trial. Counsel further recognized the

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

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

its discretion to do so.

51

Under the “invited error” doctrine Powell may not benefit

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

at a potential disadvantage in the hope, unproductive though it

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

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

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

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

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

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

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

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

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

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

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

particular circumstances created by Powell in this case.

G. Failure to Strike the Evidence

In his fifth assignment of error, Powell contends that the

trial court erred in failing to strike the evidence as to

capital murder on the ground that the Commonwealth had not

adequately corroborated his confession in the October 21, 2001

letter of having attempted to rape Stacey. Thus, Powell

contends that the evidence at best would have supported a

conviction for first degree murder. We disagree.

52

Although the Commonwealth may not establish an essential

element of a crime by the uncorroborated confession of the

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

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

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

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

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

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

corroborating evidence is consistent with a reasonable

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

confessed, the Commonwealth need not establish through direct

evidence those elements of the crime that are proven by the

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

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

Contrary to Powell’s contention that there is not even

“slight” corroborative evidence to support the reliability of

his confession, the forensic evidence and direct testimony are

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

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

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

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

was slightly undone, the subsequent rape of Kristie, and

Powell’s later concession that he raped Kristie because he

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

53

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

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

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

murder premised on the attempted rape of Stacey.

H. Mandatory Sentence Review

In his first and second assignments of error, Powell

contends that the jury imposed the sentence of death under the

influence of passion, prejudice, or some other arbitrary factor

and that the sentence of death is disproportionate to the

penalty imposed in other cases considering both the crime and

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

parallel the mandatory review of every death sentence this Court

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

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

discussion of the issues raised by Powell in his assignments of

error.

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

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

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

graphic and irrelevant evidence about the attack on Kristie”

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

impartial verdict.

We have already determined that evidence of the rape and

attempted murder of Kristie was relevant and admissible during

54

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

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

consideration of his future dangerousness during the penalty

determination phase of the trial. Accordingly, Powell’s

assertion that the jury was influenced by “irrelevant” evidence

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

crime is admissible in the guilt determination phase of a

capital murder trial, we will also consider the potential impact

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

death sentence during the penalty determination phase.

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

child are undoubtedly among the most abhorrent crimes that can

be placed in evidence before a jury contemplating whether to

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

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

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

its natural emotions and fairly consider all the evidence. See

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

infanticide and uxoricide, though abhorrent crimes, did not

preclude jury from making a rational sentencing determination in

a capital murder trial).

Powell further contends that the trial court erred in

submitting to the jury a verdict form that permitted it to

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

55

not expressly parallel the trial court’s sentencing instructions

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

neither aggravating factor had been proven beyond a reasonable

doubt. He asserts that this alleged error requires that this

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

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

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

mandatory review of his sentence, apparently contending that an

erroneous verdict form would constitute an “arbitrary factor”

that would influence the jury’s sentencing decision.

Our review of the record in this case does not disclose

that the jury failed to give fair consideration to all the

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

Moreover, the jury was properly instructed upon the sentences

available and the basis for imposing them and the record

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

upon a finding that both aggravating factors were proven beyond

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

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

sentence under the influence of passion, prejudice, or other

arbitrary factors. Accordingly, we hold that the sentence of

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

factor.

56

In a separate section of his brief, ostensibly related to

the assignment of error paralleling the passion, prejudice and

arbitrary factor aspect of our mandatory review, Powell asserts

that the alleged error in the wording of the life sentence

verdict form should result in the reversal of his death sentence

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

the entire record of a capital murder trial to determine whether

the sentence of death should be set aside because of improper

influence on the jury, we have previously rejected the

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

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

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

in the trial court by contending that the error influenced the

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

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

(1982) (rejecting assertion in dissenting opinion that mandatory

review permitted challenge to form of jury verdict to be raised

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

precluded from arguing that the alleged error in the life

sentence verdict form improperly influenced the jury’s

sentencing decision as a basis for commuting the death sentence,

we will not consider his separate argument under the same

57

assignment of error as a basis for reversing that sentence and

ordering a new sentencing proceeding. 12

Powell contends that the death sentenced imposed upon him

is excessive or disproportionate when compared to similar cases

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

contention is that his history of mental health problems and his

failure to receive adequate treatment when in state custody as a

juvenile militates against the appropriateness of the death

penalty in his case. We disagree.

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

that “the capacity of the defendant to appreciate the

criminality of his conduct or to conform his conduct to the

requirements of law was significantly impaired.” The

psychologist called by Powell did not offer a specific diagnosis

of Powell’s mental health problems, merely classifying them

generally as suggesting an anti-social personality disorder and

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

12

Powell also contends that the “ends of justice” exception

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

the life sentence verdict form as a basis for reversing his

death sentence and ordering a new sentencing proceeding.

However, as Powell cannot argue for reversal of his death

sentence under the assignment of error paralleling the mandatory

review of that sentence and failed to make this issue the

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

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

address this issue as a basis for reversing the sentence of

death and remanding for a new sentencing proceeding.

58

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

psychologist did not testify that Powell lacked the ability to

appreciate the criminality of his conduct or that his condition

significantly impaired his ability to conform his conduct to the

requirements of the law.

The jury heard this testimony concerning Powell’s mental

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

trial court’s instruction to consider evidence presented in

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

mental health problems did not mitigate his offense. See Swann

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

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

despite “history of mental health hospitalization and

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

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

imposed despite evidence of defendant’s prior confinement in

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

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

imposed despite mitigating evidence of defendant’s “schizoid

personality disturbance” and “extreme mental and emotional

disturbance”).

59

Apart from Powell’s contention that his history of mental

health problems should preclude the imposition of a death

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

to conduct a comparative review of the death sentence imposed in

this case with other capital murder cases, including those where

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

review is to reach a reasoned judgment regarding what cases

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

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

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

statutorily mandated review in this case, we have focused on

cases in which the victim was murdered during the commission of

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

imposed based on findings of both future dangerousness and

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

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

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

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

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

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

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

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

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

considered cases in which defendants received life sentences,

60

rather than the death penalty, for capital murder during the

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

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

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

all the factors revealed by the record, both those favoring

imposition of the death sentence and those in mitigation against

it, we hold that the sentence is neither excessive nor

disproportionate to the penalties imposed by other sentencing

bodies in the Commonwealth for comparable crimes.

III. CONCLUSION

Having found no error below and perceiving no other reason

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

the judgment of the trial court.

Affirmed.

61