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Present:    Hassell, C.J., Lacy, Keenan, Koontz, Lemons, and
Agee, JJ., and Russell, S.J.
LEON JERMAIN WINSTON
v.    Record Nos.  040686 &                                         OPINION BY JUSTICE DONALD W. LEMONS
040687                                                              November  5,  2004
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
In these appeals, we consider three capital murder
convictions and three death sentences imposed upon Leon Jermain
Winston, along with his convictions upon two counts of
attempted robbery, statutory burglary, malicious discharge of a
firearm, and five counts of use of a firearm in the commission
of a felony.
I.    Facts and Proceedings Below
A.    Background
On the morning of Friday, April  19,  2002, Rhonda and
Anthony Robinson  ("Rhonda" and "Anthony") were shot and killed
in their home at  410 Sussex Street in Lynchburg.    When police
arrived, they found that the rear door to the house had been
forcibly opened.    Anthony's body was at the foot of the stairs
and five  9-millimeter shell casings were found around and under
his body.    Rhonda's body was found on the floor of the upstairs
bedroom shared by her two daughters.    Four  9-millimeter shell
casings were found upstairs.
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Autopsies were performed on both Rhonda and Anthony.
Toxicology reports found no indication of alcohol, opiates, or
cocaine in either.    The medical examiner concluded that all
wounds were inflicted upon both victims while they were alive.
The medical examiner also concluded that Rhonda was pregnant at
the time she was murdered.
Anthony died from blood loss caused by eight gunshot
wounds to his head, chest, abdomen, and upper and lower
extremities.    In numbering the bullet wound tracks, the medical
examiner did not indicate the sequence in which Anthony was
shot.    However, the medical examiner established that a  9-
millimeter semi-automatic handgun caused tracks  1 through  7 and
a  .38 caliber revolver caused track  8.
The bullet in track  1 entered Anthony's head above and
behind his left ear, passed through his skull causing a "large
amount of destruction" before exiting through his right eye.
The bullet in track  2 entered Anthony's right jaw and exited
out of his mouth.    The bullet in track  3 grazed the surface of
Anthony's left cheek before it entered his chest, damaged his
left lung and heart, and stopped in his abdomen.    The bullet in
track  4 passed front-to-back through Anthony's right shoulder.
The bullet in track  5 passed from right to left through the
subcutaneous tissue of Anthony's abdomen.    The bullet in track
6 entered Anthony's left upper back, and then passed through
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his ribs, left lung, heart, liver, and stomach.    The bullet in
track  7 entered Anthony's right thigh and then passed through
it.    The  .38 caliber bullet in track  8 entered the right side
of Anthony's groin at the base of his penis, and passed through
the left scrotal sac before lodging in his left thigh.
Rhonda's death was caused by blood loss due to eight
gunshot wounds.    The medical examiner identified three wound
tracks associated with these wounds.    The bullet that caused
the first wound track entered at the top of her head and passed
through her forehead.    The bullet that caused the second wound
track passed through Rhonda's chin into her neck and chest,
where it hit major blood vessels before exiting through her
back.    The bullet that caused the third wound track passed
through Rhonda's neck.
Evidence at trial revealed that on the morning of April
19,  2002, then eight-year-old Niesha M. Whitehead was awakened
by Rhonda, her mother, calling out that "someone is in the
house."    Niesha saw two black men outside the second floor
bedroom she shared with her sister, Tiesha, then five years
old.    Niesha testified that she saw her stepfather, Anthony, go
downstairs with one of the two men.    This man was dressed in
black clothing and wore gloves.    Niesha called him "Mr. No
Name."    She testified that "Mr. No Name" had a tattoo that
looked like "a big dog."    Significantly, Winston concedes that
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he was present on this evening, but asserts on brief before us
that he did not shoot anyone.    As between Winston and the other
man who was an intruder in the home, Kevin Brown  ("Brown"),
Winston is the person with a tattoo of a dog on his arm.
Niesha testified that after Anthony went downstairs with "Mr.
No Name," she heard shots.
Brown, who Niesha called "Mr. No Name's Friend," stayed
upstairs with Rhonda until "Mr. No Name" came back upstairs.
"Mr. No Name" chased Rhonda into the girls' bedroom and shot
Rhonda in front of the girls.    Niesha led her sister to a
closet where the two girls hid.    Later, Niesha left the closet
and discovered the bodies of her mother and stepfather.
A cab driver testified that he picked up two black males,
one of whom he identified as Brown, in the early morning hours
of April  19,  2002.    He drove the men to several homes where the
two men would leave the cab and walk around the house checking
the windows, but not entering the houses.    He remembered that
one of the houses was on Sussex Street.    The Robinson home was
on Sussex Street.
Michelle Lipford, who had purchased drugs from Winston and
Brown in the past and had been sexually intimate with Winston,
testified that at about  5:00 a.m. on April  19,  2002, she drove
Winston and Brown to the Robinson's home on Sussex Street.    She
testified that she parked a block away from the Robinson home
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and Winston and Brown left the car for approximately  5 minutes
and then returned.    They went to her home on Pierce Street.
Winston and Brown asked her to drive them back to Sussex
Street.    She complied and parked a block away from the Robinson
home.    Winston and Brown got out of the car.    After about  15
minutes, Lipford heard gunshots and drove away.
Tranika Turner, Winston's girlfriend, received a call from
Winston at about  6:00 a.m. on the morning of April  19,  2002
asking her to pick him up at a carwash, a short distance from
Sussex Street.    She did so.
The evidence revealed that Carrie Wirges, a neighbor of
the Robinsons, was awakened by gunshots on the morning of April
19,  2002.    She described hearing three shots and then five
shots.
Nathan Rorls  ("Rorls"), a longtime friend of Winston's,
testified that Winston telephoned him and stated that "he
slumped two people down here," meaning that he "murdered
somebody; killed somebody."    When Rorls saw Winston the next
day, Winston stated that he "killed two people and robbed them
and stuff." Winston produced a handgun from under his shirt.
Rorls described it as "a black gun like an automatic  [, it] was
like a Glock or a nine."    Winston also displayed cash and
cocaine that he stated he took from the Robinsons.    He told
Rorls that he and Brown took  $2000 and two ounces of cocaine.
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Rorls recited what Winston told him.    According to
Winston, Brown took Anthony downstairs and shot him first in
the stomach.    Winston then shot Anthony when he came "running
up the steps talking about they robbing us."    Rorls testified
that,
So  [Winston] said he shot him like up in the
face or somewhere in the upper body coming up
the stairs.    And he told me, he said, he don't
want to leave no witnesses, so he turned around
and he shot that bitch.
Winston told Rorls that he committed these crimes because he
had been robbed several days earlier and "he needed to make his
money back up, he didn't get paid." Rorls also stated that
Winston told him that Rhonda was pregnant.
Winston was arrested at his girlfriend, Turner's, home on
April  25,  2002.    Turner gave police a set of keys that Winston
left in her house.    The keys fit locks to doors at two nearby
apartments.    At one of the apartments, occupied by Robin
Wilson, the police recovered a  9-millimeter off-brand handgun
manufactured by a company located in Tennessee and made to
resemble a Glock.    Winston had left the handgun with Wilson to
"hold" for him, and had failed to retrieve it before he was
arrested.    Winston had called Wilson from jail after he was
arrested and requested Wilson to continue to "hold" it.
Winston's handgun seized by police at Wilson's apartment
had one unspent round in the clip magazine.    The cartridge bore
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the identical stamping as the casings recovered at the Robinson
murder scene.    A forensic scientist testified at trial that
five bullets recovered from the Robinson's home and two bullets
removed from Anthony's body were fired from Winston's  9-
millimeter handgun recovered from Wilson's apartment.    Nine
cartridge casings recovered at the crime scene had been ejected
from Winston's  9-millimeter handgun. Another forensic scientist
testified that biological material recovered from the  9-
millimeter handgun matched Winston's DNA profile and was
inconsistent with Brown or either of the Robinsons.    The
probability of a random selection yielding this result was
greater than one in six billion.
B.    Proceedings Below
On June  9-13,  2003, Leon Jermain Winston was tried before
a jury in the Circuit Court of the City of Lynchburg on
indictments charging the capital murder of Anthony Robinson in
the commission of robbery or attempted robbery, Code  §§  18.2-30
and  18.2-31(4); capital murder of Rhonda Robinson in the
commission of robbery or attempted robbery, Code  §§  18.2-30 and
18.2-31(4); capital murder of Rhonda Robinson during the same
transaction in which another person was willfully,
deliberately, and with premeditation killed, Code  §§  18.2-30
and  18.2-31(7); two counts of robbery, Code  §§  18.2-10 and
18.2-58; statutory burglary, Code  §§  18.2-10 and  18.2-90;
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maliciously discharging a firearm, Code  §  18.2-279; and five
counts of use of a firearm in the commission of a felony, Code
§  18.2-53.1.    The trial court granted Winston's motion to
strike the charges of robbery, but permitted the case to
proceed on charges of attempted robbery.
The jury convicted Winston of all charges submitted to it.
In a separate proceeding on June  13,  2003, the jury sentenced
Winston to three death sentences for the capital murder
convictions, finding both the future dangerousness and vileness
aggravating circumstances.    The jury sentenced Winston to  73
years imprisonment and  $400,000 in fines upon the remaining
convictions.
On January  29,  2004, the trial court held a post-verdict
hearing at which it considered the probation officer's report,
additional evidence, and argument of counsel.    The trial court
imposed three death sentences, the sentences of imprisonment as
fixed by the jury, as well as the fines imposed; however, the
court suspended the imposition of fines.    Winston noted appeals
of his convictions on February  26,  2004.    Winston's appeals of
his non-capital convictions were certified under Code  §  17.1-
409 for consolidation with the appeals of his capital murder
convictions and the review of sentences mandated by Code
§  17.1-313.
II.    Analysis
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A.    Issues "Abandoned"
Winston makes  72 assignments of error.1    By his own
concession in his brief, Winston "abandoned" assignments of
error  1,  2,  4,  6,  11,  13,  14,  15,  16,  17,  26,  27,  35,  43, and
59.    He did not brief these assignments of error and has,
therefore, waived them.    Rule  5:27; Rule  5:17(c)(4); Elliott v.
Commonwealth,  267 Va.  396,  422,  593 S.E.2d  270,  286  (2004);
Williams v. Commonwealth,  248 Va.  528,  537,  450 S.E.2d  365,  372
(1994), cert. denied,  515 U.S.  1161  (1995).
B.    Issues Previously Decided
Included in Winston's  72 assignments of error are
arguments this Court has rejected in previous cases.    Since we
find no reason to modify our previously expressed views on
these questions, we adhere to our previous holdings and reject
the following contentions:
1) "The trial court erred in denying voir dire on parole
ineligibility."                                                               (A.E.  5).    Rejected in Hills v.
Commonwealth,  262 Va.  807,  811-12,  553 S.E.2d  722,  724-25
(2001); Lilly v. Commonwealth,  255 Va.  558,  567,  499
S.E.2d  522,  529-30  (1998), rev'd on other grounds,  527
U.S.  116  (1999).
1 The assignments of error are referred to by number
throughout the opinion, and are referenced by either
"assignment of error" or "A.E."
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2) "The trial court erred by not declaring Virginia's death
penalty statutes unconstitutional" because the terms
" 'vileness' and 'future dangerousness' are
unconstitutionally vague and fail to provide the sentencer
with meaningful instruction to avoid the arbitrary and
capricious infliction of a death sentence."                        (A.E.  8,  18,
and  65).    Rejected in Jackson v. Commonwealth,  267 Va.
178,  205-06,  590 S.E.2d  520,  535-36  (2004), cert. denied,
___ U.S.  ___,  ___ S.Ct.  ___,  73 U.S.L.W.  3212  (2004)
("future dangerousness"); Wolfe v. Commonwealth,  265 Va.
193,  208,  576 S.E.2d  471,  480, cert. denied,  ___ U.S.  ___,
124 S.Ct.  566  (2003)  ("vileness"); Beck v. Commonwealth,
253 Va.  373,  387,  484 S.E.2d  898,  907, cert. denied,  522
U.S.  1018  (1997)  ("vileness"); Mickens v. Commonwealth,
247 Va.  395,  403,  442 S.E.2d  678,  684, vacated and
remanded on other grounds,  513 U.S.  922  (1994)  ("future
dangerousness").
3) "The trial court erred by not declaring Virginia's death
penalty statutes unconstitutional" because "the Virginia
scheme fails properly to inform and instruct the jury on
its consideration of mitigating evidence."                         (A.E.  8,  18,
and  65).    Rejected in Walker v. Commonwealth,  258 Va.  54,
61,  515 S.E.2d  565,  569  (1999), cert. denied,  528 U.S.
1125  (2000); Johnson v. Commonwealth,  259 Va.  654,  667,
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529 S.E.2d  769,  776, cert. denied,  531 U.S.  981  (2000);
Watkins v. Commonwealth,  229 Va.  469,  490-91,  331 S.E.2d
422,  438  (1985), cert. denied,  475 U.S.  1099  (1986).
4) "The trial court erred by not declaring Virginia's death
penalty statutes unconstitutional" because they allow "the
prosecution to prove future dangerousness by evidence of
unadjudicated criminal conduct and fail to require the
prosecution  [to] satisfy any standard of proof before
using such conduct."                                               (A.E.  8,  18,  65).    Rejected in Green
v. Commonwealth,  266 Va.  81,  107,  580 S.E.2d  834,  849
(2003), cert. denied,  ___ U.S.  ___,  124 S.Ct.  1448  (2004);
Satcher v. Commonwealth,  244 Va.  220,  228,  421 S.E.2d  821,
826  (1992), cert. denied,  507 U.S.  933  (1993); Stockton v.
Commonwealth,  241 Va.  192,  210,  402 S.E.2d  196,  206, cert.
denied,  502 U.S.  902  (1991).
5) "The trial court erred by failing to conduct a pretrial
proportionality review."                                           (A.E.  10).    Rejected in Green,
266 Va. at  107,  580 S.E.2d at  849; Bailey v. Commonwealth,
259 Va.  723,  742,  529 S.E.2d  570,  581, cert. denied,  531
U.S.  995  (2000); see also Code  §  17.1-313.    Winston's
assignment of error stating that "[t]he trial court erred
when it failed to conduct a proportionality review that
included capital cases which did not result in a sentence
of death,"  (A.E.  66), is also without merit because the
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trial court is not required to conduct a proportionality
review.
6) "The trial court erred when it instructed the jury it
could infer malice from the use of a deadly weapon and its
jury instruction  8 was improper."                                 (A.E.  39).    Strickler
v. Commonwealth,  241 Va.  482,  495-96,  404 S.E.2d  227,  236,
cert. denied,  502 U.S.  944  (1991); Smith v. Commonwealth,
239 Va.  243,  263-64,  389 S.E.2d  871,  882, cert. denied,
498 U.S.  881  (1990).
7) "The trial court erred in giving jury instruction  36,"
stating that, "You may infer that every person intends the
natural and probable consequences of his acts."                    (A.E.
44).    Rejected in Schmitt v. Commonwealth,  262 Va.  127,
145,  547 S.E.2d  186,  199  (2001), cert. denied,  534 U.S.
1094  (2002).    See also Strickler,  241 Va. at  495,  404
S.E.2d at  236  (instruction that jury "may infer" malice
does not amount to impermissible presumption).
8) "The trial court erred by giving jury instructions  50,  53,
64,  65,  66, and  67" and submitting verdict forms that
described future dangerousness as "proof beyond a
reasonable doubt of a probability of future acts of
violence."                                                         (A.E.  56 and  60).    Rejected in Mickens,  247
Va. at  402-03,  442 S.E.2d at  683-84.
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9) "The death penalty is cruel and unusual punishment and it
is error to impose such a sentence in contravention of the
United States and Virginia Constitutions."                        (A.E.  72).
Rejected in Johnson,  259 Va. at  667,  529 S.E.2d at  776;
Jackson v. Commonwealth,  255 Va.  625,  635,  499 S.E.2d  538,
545  (1998), cert. denied,  525 U.S.  1067  (1999); Spencer v.
Commonwealth,  238 Va.  275,  280-81,  384 S.E.2d  775,  777-78
(1989), cert. denied,  493 U.S.  1036  (1990).
C.    Pre-trial Proceedings
1.    Appointment of Experts
Winston asserts three assignments of error concerning the
trial court's refusal to appoint certain experts to assist him
in the case.    First, he asserts the trial court "erred in
denying the defense request for a sentencing/mitigation
expert."                                                          (A.E.  3).    Second, he alleges the trial court "erred
in denying the defense request for the appointment of a child
psychologist to explore the competence of a nine year old
witness."                                                         (A.E.  7).    Third, he claims the trial court "erred
in denying the defense request for a mental health expert per
Ake and Husske."                                                  (A.E.  9).
Winston filed a motion requesting a "sentencing/mitigation
expert" prior to trial.    In his motion he noted that
"[i]ndigent defendants in Lynchburg are often represented by
the Office of the Public Defender" and that "[t]he Lynchburg
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Public Defender has a sentencing specialist on staff."    He
argued that a "sentencing specialist has the expertise
necessary to locate essential witnesses and data, examine and
evaluate testimony and documents using his or her special
knowledge of the issues likely to be significant at a murder
trial and possible sentencing event, issues beyond the
comprehension of the ordinary layman."    In argument on the
motion, Winston acknowledged that the services requested
involved gathering his background information and could be
performed by the previously appointed defense investigator.
The trial court declined to appoint an additional person
to be the "mitigation expert" as requested by Winston.
Instead, the trial court expanded the range of authorized
activities for the investigator who had already been appointed
for Winston "to include background investigation for evidence
in mitigation."    Although not receiving the particular expert
he requested, Winston, in fact, received the services he
requested.    While the Commonwealth is required to provide
adequate expert assistance to indigent defendants in certain
circumstances, it is not required to provide them with "all
assistance that a non-indigent defendant may purchase."    Husske
v. Commonwealth,  252 Va.  203,  211,  476 S.E.2d  920,  925  (1996),
cert. denied,  519 U.S.  1154  (1997).
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Winston also filed a motion in the trial court seeking the
appointment of a psychologist to examine then eight-year-old
Niesha Whitehead, one of the daughters of the victims, and
requested a hearing to determine her competence to testify.
The trial court denied the motion for an examination on the
basis that "a determination of the competency of this witness
is for the Court, and that can be done without the assistance
from an expert."
We review the trial court's decision concerning the
competence of Niesha Whitehead with deference.    "Because of the
opportunity a trial court has to see and observe a child's
demeanor on the stand, his or her competence as a witness is a
matter within the discretion of the trial court and its ruling
will not be disturbed except for manifest error."    Mackall v.
Commonwealth,  236 Va.  240,  253,  372 S.E.2d  759,  767  (1988),
cert. denied,  492 U.S.  925  (1989); Kiracofe v. Commonwealth,
198 Va.  833,  840,  97 S.E.2d  14,  18-19  (1957).    Winston made no
allegation, either in his motion to the trial court or in oral
argument at hearings before the trial court, that Niesha had
any special condition, other than being eight years old at the
time, that would require the trial court to seek expert
assistance in determining her competence to testify.    With the
use of adequate voir dire, trial courts in the Commonwealth
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have determined the competence of children younger than eight
years old.    See Kiracofe,  198 Va. at  840,  97 S.E.2d at  18-19.
In this case, the trial court's voir dire to determine
Niesha's competence to testify was as follows:
BY THE COURT:
Q.    How are you, young lady?
A.    Good.
Q.    Why don't you tell me your whole name?
A.    Niesha Michelle Whitehead.
Q.    How old are you Niesha?
A.    Nine.
Q.    Do you know your birthday?
A.    Yes.
Q.    What's the date of your birthday?
A.    September  30th, September  30th.
Q.    Do you know what year?
A.                                                                    1993.
Q.    Are you in school?
A.    Yes.
Q.    Where are you in school?
A.    R.S. Payne.
Q.    R.S. Payne.    Speak into that microphone.
MR. PETTY:      Use your outdoor voice, Niesha.
BY THE COURT:
Q.    Just talk into the mic.
Are you a little bit nervous?
A.                                                                    (Witness nods head up and down.)
Q.    That's a yes?
A.    Yes.
Q.    All right.    I don't blame you.    I'd be nervous, too,
if I was sitting in that chair.
Do you know who  - I'm Judge Perrow.
Do you know what a judge does in a courtroom?
A.    No.
Q.    You don't?
I just preside over the trial, okay?
A.    Okay.
Q.    Do you know why we're here today?
A.                                                                    (No response).
Q.    Do you know why you're here today?
A.                                                                    (No response).
Q.    Do you want to think about that for a while?
A.    Yeah.
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Q.    Okay.    There's no right or wrong answers, just do you
know  - you just raised your hand and told this lady,
who's the clerk, that you would tell the truth. Do
you know what it means to tell the truth?
A.    Yes.
Q.    What does it mean?
A.    Just the truth.
Q.    All right.    You mean  -
A.    Just the truth.
Q.    Well, do you know what the truth means?
A.                                                              (No response).
Q.    Can you give me an example?
A.                                                              (No response).
Q.    Can't think of an example?
A.    No.
Q.    Do you know what it means to lie?
A.    Yes.
Q.    What does it mean to lie?
A.    Not telling the truth.
Q.    Not telling the truth.
Does anything happen to you if you don't tell the
truth?    Is that good or bad?
A.    Bad.
Q.    And why is it bad?
A.    Because you'd be telling a lie.
Q.    You'd be telling a lie.
You could maybe hurt somebody if you told a lie; is
that right?
A.    Yes.
Q.    What grade are you in?
A.    Fourth.
Q.    Fourth grade.
What do you  - what subjects do you study in school?
A.    Science.
Q.    Science?
A.                                                              (Witness nods head up and down.)
Q.    Do you like science?
A.    Yes.
Q.    And what else do you study?
A.    Math.
Q.    Math.
Do you like math?
A.    Yes.
Q.    What kind of grades do you get in school, Niesha?
A.    Bs and Cs.
Q.    Bs?
A.    And Cs.
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Q.    Do you get all Bs or some Cs or  -
A.    Some Cs.
Q.    Some Cs, all right.
And do you know who these gentlemen are seated down
here at this table?
These are lawyers.    They're going to ask you some
questions.
Do you think you can answer their questions?
A.    Yes.
Q.    Are you going to answer them truthfully?
A.    Yes.
Q.    All right.    And do you know who this lady is right
here?
A.                                                              (Witness shakes head side to side.)
Q.    She's  −
A.    No.
Q.                                                              − the court reporter. She takes down everything we say
so there will be a record of what we say.
A.    Okay.
Q.    And that lady right there, she's one of the bailiffs.
She helps run the courtroom.
Do you think you can sit here and answer the
questions?
A.    Yes.
Q.    And are you going to tell the truth?
A.    Yes.
Q.    If you don't know an answer, what are you going to
say?    Do you feel like you have to answer every
question?
A.    No.
Q.    Only the questions you know the answer to?
A.    Yes.
Q.    Are you going to make up any answers?
A.     No.
Q.    If you don't know the answer to a question, you're
going to tell us you don't know?
A.    Yes.
Q.    Do you understand there's nothing wrong with that?
We just want to know what you know, if anything, and
we want the truth.    Do you think you can do that?
A.    Yes.
Q.    All right.    And do you know why we're here, what this
is all about, what this is called?
A.                                                              (No response).
Q.    Can't think of what it's called?
A.    No.
18




Q.    Well, do you know why you're here today, Niesha?
Were you present when your mother was killed?
A.    Yes
Q.    You were in the house  − were you in the house?
A.    Yes.
Q.    Are you going to tell us whether or not you saw
anything?
A.    Yes, yes.
Q.    Are you going to tell us the truth?
A.    Yes.
The trial court concluded that Niesha was competent to
testify and observed, "I think she's scared to death."    Winston
argues that the trial court erred in interpreting "the child's
inability/refusal to answer as shyness when an equally valid
explanation was her not understanding the questions or oath."
However, our review of the transcript does not reveal "manifest
error" in the trial court's determination that the child was
shy or nervous about testifying.    Niesha was able to discuss
the difference between lying and telling the truth and
understood that lying was "bad."    She also appeared to
understand that it was acceptable to admit to the court that
she did not know the answer to a question.    Considering the
voir dire in its totality, she appeared to understand the
court's questions and was able to answer them.    Additionally,
at a pretrial hearing, the trial court heard testimony from a
licensed professional counselor who had been providing
counseling to Niesha.    The counselor testified that Niesha was
anxious about coming to the courtroom and was concerned that
19




the man who killed her mother might hurt her if she appeared in
the courtroom.
Winston does not assign error to the trial court's
determination that Niesha was competent to testify.    Rather,
Winston complains that an expert was not appointed to examine
Niesha to aid in the determination of her competence to
testify.    He alleges that the voir dire examination reveals the
need to have appointed an expert to examine Niesha.    Upon
review of the record, we find no error in the trial court's
decision not to appoint an expert for this purpose.
Winston's third argument regarding the appointment of
experts concerns his request for a qualified mental health
expert to investigate issues for sentencing.    Winston requested
appointment of an expert under Ake v. Oklahoma,  470 U.S.  68
(1985) and Husske.    Winston eschewed any request pursuant to
Code  §  19.2-264.3:1, which addresses such assistance to an
indigent capital murder defendant.    Presumably, Winston sought
to avoid the notice and access requirements of the statute in
the event that reports developed pursuant to the provisions of
the statute were offered by the defendant in mitigation at a
sentencing proceeding.    The trial court nonetheless granted the
expert assistance requested by Winston pursuant to Code  §  19.2-
264.3:1.    Winston complains that he has a right under Ake and
20




Husske to the appointment of a mental health expert independent
of the provisions of Code  §  19.2-264.3:1.
The Supreme Court in Ake held that an indigent defendant
charged with a capital offense is entitled to a mental health
expert at state expense when,  1) sanity at the time of the
offense is an issue, and  2) future dangerousness is an
aggravating factor in the sentencing proceeding and the state
offers psychiatric testimony in support of future
dangerousness.    Ake,  470  U.S.  at  83,  86-87.    In Husske, we held
that an indigent defendant who seeks the
appointment of an expert witness, at the
Commonwealth's expense, must demonstrate that the
subject which necessitates the assistance of the
expert is "likely to be a significant factor in
his defense," Ake,  470 U.S. at  82-83, and that he
will be prejudiced by the lack of expert
assistance.    Id. at  83.    An indigent defendant
may satisfy this burden by demonstrating that the
services of an expert would materially assist him
in the preparation of his defense and that the
denial of such services would result in a
fundamentally unfair trial.    See State v. Mills,
420 S.E.2d  [114,]  117  [(N.C.  1992)].    The
indigent defendant who seeks the appointment of
an expert must show a particularized need.
252 Va. at  211-12,  476 S.E.2d at  925.
The General Assembly provided in Code  §  19.2-264.3:1 a
comprehensive statute concerning the provision of health care
experts when a defendant's mental condition is relevant in a
capital sentencing.    Winston never suggested that his sanity at
the time of the offense was an issue.    He requested a mental
21




health expert solely for the purpose of sentencing.    The
Commonwealth did not present psychiatric evidence of Winston's
future dangerousness as was the case in Ake.    Nonetheless, in
this case, Winston received precisely what he requested, only
he received it pursuant to the statutory provisions.    Assuming
that Ake required such assistance in this case, Winston clearly
received it when the trial court provided a mental health
expert to assist him pursuant to Code  §  19.2-264.3:1.
Significantly, Winston gave no notice of presentation of
psychiatric evidence and proffered no such evidence at the
sentencing; consequently, no objection to the provision of a
specific report to the Commonwealth under subsection D of the
statute is at issue in this case.    The trial court did not err
in its provision of a qualified mental health expert pursuant
to Code  §  19.2-264.3:1.
2.    Seating of Jurors
Winston assigns error to a number of rulings of the trial
court related to voir dire of the jury panel and the seating
and removal of individual jurors.    Winston claims that the
trial court "erred in limiting voir dire of the venire by the
defense" and "erred in describing the punishment to the
venire."                                                           (A.E.  20 and  21).    His arguments on these topics
relate to the trial court's refusal to allow Winston's counsel
to question the jury about the impact of parole ineligibility
22




and the trial court's description of the possible punishments
in capital cases as "death" or "life in prison," rather than
life in prison without the possibility of parole.    He argues
that parole ineligibility may affect the jurors' view on the
death penalty and that in the absence of guidance from the
trial court on the topic of parole ineligibility, the members
of the venire lack the "information needed to respond
completely and truthfully to questions propounded to him/her."
He also suggests that anyone with misconceptions about parole
ineligibility should be removed from the venire.
In Lilly,  255 Va. at  567,  499 S.E.2d at  529-30, we
rejected the idea that "knowledge of parole ineligibility rules
and exploration of potential jurors' opinions on that subject
would be a proper topic for voir dire."    Instead, we noted that
the "probable confusion and prejudice such an inquiry would
cause in the minds of jurors is self-evident."    Id.    We echoed
that reasoning in Hills,  262 Va. at  811-12,  553 S.E.2d at  724-
25, where we held that the proper time to inform the jury about
parole ineligibility is when the court instructs the jury in
the penalty phase.    In Fishback v. Commonwealth,  260 Va.  104,
115,  532 S.E.2d  629,  634  (2000), we established a rule
requiring juries to be instructed on the abolition of parole
for non-capital felony offenses committed on or after January
1,  1995.
23




This jury was properly instructed concerning parole
ineligibility at the time of its deliberations.    It was not
error to refuse voir dire on this subject at the time of jury
selection.
Additionally, Winston assigns error to the trial court's
voir dire.                                                        (A.E.  24).    Specifically, Winston objects to the
trial court's following statements and questions:
Ladies and gentlemen, I want  − also want you
to understand that in every criminal case the
defendant has the opportunity but no obligation
to put on evidence.    And that is because in our
system should the state accuse any of us of a
crime, we don't have to prove our innocence, the
state has to prove our guilt beyond a reasonable
doubt.
So do you understand that the defendant has
an opportunity but no obligation to put on
evidence?    Do each of you understand that?
THE JURY POOL:  (Nod heads up and down.)
THE COURT:    Does anyone hold it against the
defendant should he elect not to put on
evidence?
THE JURY POOL:  (Shake heads side to side.)
Winston mischaracterizes the trial court's question as
"suggest[ing] Leon Winston would put on evidence in defense of
the charges," by pulling a single phrase out of context.    A
fair reading of the trial court's colloquy shows that the trial
court's statements and questions confirmed that none of the
jurors would draw an unfair inference from the defendant's
choice not to present evidence.
24




Furthermore, Winston did not object to the trial court's
voir dire on this subject.    The trial court had previously
advised Winston's counsel that the court's voir dire would
contain this information.    There was no objection on the
occasion of the trial court's advice to counsel nor upon the
actual voir dire of the jury.    In fact, Winston's own proposed
voir dire questions advised the jury that the defendant did not
have to testify or produce evidence.    Winston mischaracterizes
the trial court's voir dire.    In any case, he failed to object
and may not be heard to complain for the first time on appeal.
Rule  5:25.
Winston assigns error to the trial court's removal of
certain jurors from the venire.                                    (A.E.  22).    Winston argues
that he is entitled to be tried by a jury of his peers and such
a jury must include jurors who oppose imposition of the death
penalty.    Winston argues that to constitute a true "cross-
section" of the community, his jury should have been composed
of people who support the death penalty, people who oppose the
death penalty, and people who "are ambivalent towards it."
With regard to jurors Margaret Gaines, Harold Donovan, Jeremy
Collins, Melinda Wheeler, and Albert Delbridge, Winston argues
that these jurors were struck from the panel because they
opposed the death penalty under any circumstances.    He asserts
that Winston was thereby denied a jury of his peers under the
25




Sixth Amendment to the Constitution of the United States and
Article I,  §  8 of the Constitution of Virginia.    He further
maintains that striking these jurors from the venire "denied
these jurors equal protection under the law" under the rule
announced in Batson v. Kentucky,  476 U.S.  79  (1986).
The Supreme Court of the United States has rejected the
"cross-section" argument made by Winston.    In Lockhart v.
McCree,  476 U.S.  162  (1986), the Supreme Court held that
" 'death qualification' does not violate the fair-cross-section
requirement" of the Constitution of the United States.    Id. at
176-77.    In Spencer,  238 Va. at  282,  384 S.E.2d at  778, citing
Lockhart, we rejected the "cross-section" argument based on
both the Federal and the Virginia Constitutions.    We find no
reason to modify our previous holding.
Winston also assigns error to the trial court's refusal to
strike jurors Janet Capps, Michael Lewis, Anastasia Kreff, and
Paulene Todd for cause.  (A.E.  23).    However, he offers only two
sentences in his brief to support this assignment of error, one
of which is an unhelpful quote of a single sentence of one of
our prior opinions.    This is not an argument in support of this
assignment of error.    Consequently, this assignment of error is
waived due to Winston's failure to adequately brief the issue.
Rules  5:27,  5:17(c).
26




Winston's remaining argument relating to the seating of
the jury, assignment of error  25, is barred under Rule  5:25.
Winston did not object to the trial court's decision to seat
jurors Robbie Johnson and Shirley Childress.
Winston's final challenge to the composition of his jury
is expressed in his assignment of error asserting that the
trial court erred in "failing to declare a mistrial and failing
to set aside the jury verdict upon learning of third party
communications with members of the jury."                           (A.E.  32).    During
the trial, it was brought to the trial court's attention that
jurors had been approached during various recesses by a woman
who made comments about the case.    It would serve no purpose to
recite the substance of the comments because the trial court,
with the agreement of counsel, examined the four jurors who had
heard such remarks.    Neither the Commonwealth nor Winston
requested that any other jurors be examined on the subject.
After discussing the matter with Winston, counsel for Winston
was asked by the trial court, "Do you have any motion?"
Defense counsel responded, "Judge, we do not have a motion.    We
have discussed it with our client, and we have no motion and
will go forward with the trial."    The frivolous nature of this
assignment of error should be apparent to counsel.    It is
barred by Rule  5:25.
D.    Guilt Phase
27




1.    Evidentiary Issues
a.    Hearsay
Winston asserts that the trial court improperly overruled
his hearsay objection during the testimony of Investigator
David Gearhardt  ("Gearhardt").                                   (A.E.  31).    The Commonwealth
asked Gearhardt whether Niesha had said that one of the two men
in her house had a tattoo.    The Commonwealth argues that the
question objected to "merely introduced the fact that Gearhardt
photographed the tattoo on Winston's arm."    The transcript of
Gearhardt's testimony is as follows:
BY MR. PETTY:
Q.      Now, did you become aware that Niesha
Whitehead had mentioned seeing a tattoo on
one of the individual's arms who was
involved in this?
A.      Yes.
MR. DREWRY: Objection, Judge.    It's hearsay.
MR. PETTY:    Your Honor, it's offered only to show  −
THE COURT:    Overruled.
MR. PETTY:                                                        — what he did after that. Thank you.
BY MR. PETTY:
Q.    Answer that question.
A.    Yes, I did.
Q.    And as a result of that, did you go take a
photograph of a tattoo on the arm of this
defendant?
A.    Yes, I did.
The phrasing of the Commonwealth's question, "did you
become aware," suggests that the subject of the question was
Gearhardt's awareness of the statement made by Niesha, not the
28




truth of the content of the statement.    That Gearhardt's answer
was followed by a question concerning the effect of his
awareness of the statement on his actions  − he took a photograph
of Winston's arm  − further supports the Commonwealth's statement
of the purpose for the question.
In Weeks v. Commonwealth,  248 Va.  460,  477,  450 S.E.2d
379,  390  (1994), cert. denied,  516 U.S.  829  (1995), we held
that "[t]he hearsay rule does not operate to exclude evidence
of a statement offered for the mere purpose of explaining the
conduct of the person to whom it was made."    We have held more
generally:
The hearsay rule excludes out-of-court
declarations only when they are "offered for a
special purpose, namely, as assertions to
evidence the truth of the matter asserted."    If
the court can determine, from the context and
from the other evidence in the case that the
evidence is offered for a different purpose, the
hearsay rule is no barrier to its admission.
Manetta v. Commonwealth,  231 Va.  123,  127,  340 S.E.2d  828,  830
(1986)  (citations omitted).    The trial court did not err in
overruling the hearsay objection asserted by Winston.
b.    Identification Testimony
Prior to trial, Winston filed three motions concerning the
in-court identification of Winston by three different
witnesses:    Michelle Lipford  ("Lipford"); Niesha Whitehead
("Niesha"); and David Hardy  ("Hardy").    In each motion, he
29




alleged that the witness' in-court identification "will be
based upon suggestive pre-trial identification procedures
rendering it substantially likely he will misidentify Leon
Jermain Winston as a participant in the charged offenses."
After the resolution of these three motions, Winston filed a
fourth motion, later amended, seeking to prevent in-court
identification of Winston's tattoo by Niesha.
A pretrial hearing was held concerning the first three
motions.    At that hearing, Winston's counsel argued that the
Commonwealth should bear the burden of showing that the out-of-
court identification was not suggestive in a manner that might
corrupt the in-court identification.    The Commonwealth argued
that the burden should be on Winston to show that the process
used for out-of-court identification was unduly suggestive.
The trial court ruled that the burden was on the defense and
noted Winston's objection.
Winston called three police officers as witnesses and his
questioning focused on whether Niesha had been shown
photographs of a coat and matters relating to Winston's
tattoos.    At the conclusion of the testimony, Winston's counsel
withdrew the motion concerning Hardy.    Furthermore, with
respect to the motion concerning Michelle Lipford, he stated
that it "fails  [sic] for the defendant to put on any evidence."
The Commonwealth informed the trial court that they were not
30




going to ask Niesha any questions about the coat in the
photograph, that the coat was not in evidence, and that the
coat was "not a part of this case."    The trial court recognized
the withdrawal of the motion concerning Hardy, denied the
motion concerning Lipford, and denied the motion concerning
Niesha on two grounds  − that the coat would not be part of the
evidence at trial and that Winston had failed to carry his
burden of proof.
The parties discussed the fourth motion at a hearing on
March  17,  2003.    At that time, Winston noted that one of the
Commonwealth's attorneys, William G. Petty  ("Petty"), and
Niesha might be required as witnesses on the motion.    The trial
court ordered the Commonwealth to "provide an affidavit from
Mr. Petty for the record with a copy to defense counsel with
regard to the presentation of the tattoo to  [Niesha as to] his
recollection of  [what occurred]" on the two occasions where a
picture of the tattoo had been presented to her.    He also
ordered both parties to submit briefs or case law to the court
within  10 days.    Petty's affidavit was submitted to the trial
court on March  24,  2003.    The Commonwealth also submitted a
letter brief and two cases in support of its position that
identification of a tattoo should be treated more leniently
than the identification of a person.    The issue arose at a May
23,  2003 hearing.    The trial court ruled that the picture of
31




Winston's tattoo could not be shown to Niesha at trial for
identification nor could her out-of-court identification of the
tattoo be used as evidence.    The trial court then ruled on the
remainder of Winston's motion to suppress Niesha's testimony
about the tattoo.    The trial court ruled that Niesha would be
permitted to testify as to her own recollection of the tattoo
and that the officer who took the picture of Winston's tattoo
could "show the tattoo to the jury."
Two of Winston's assignments of error pertain to the trial
court's disposition of Winston's motions to suppress
identification.    Assignment of error  12 asserts that the trial
court "erred in placing the burden of proof upon  [Winston] in a
motion to suppress identification testimony."    Assignment of
error  19 asserts that the trial court "erred in failing to
exclude Michelle Lipford's identification of  [Winston]."
Winston's assignment of error  12 is without merit.    In
Neil v. Biggers,  409 U.S.  188  (1972), the Supreme Court
established a two part analysis for determining whether an in-
court identification should be excluded because of the State's
use of an improper method for obtaining an out-of-court
identification.    First, it must be shown that the circumstances
of the out-of-court identification were unnecessarily
suggestive.    Id. at  198-99.    The second part of the analysis is
the determination of "whether under the 'totality of the
32




circumstances' the identification was reliable even though the
confrontation procedure was suggestive."    Id. at  199.    The
Supreme Court provided no specific allocation of the burden of
proof on either part of the analysis.    See, e.g., Manson v.
Brathwaite,  432 U.S.  98,  106-14  (1977).
The United States Court of Appeals for the Fourth Circuit
applied Biggers in United States v. Wilkerson,  84 F.3d  692  (4th
Cir.  1996), cert. denied,  522 U.S.  934  (1997).    In that case,
the court stated that "the defendant must establish that the
photographic lineup procedure was impermissibly suggestive."
Id. at  695  (emphasis added).    We adopt this allocation of the
burden of proof.    The trial court did not err by placing the
burden of proof upon Winston in the pretrial motion to exclude
identification testimony at trial.    With regard to the fourth
motion relating to Niesha's testimony about the tattoo, Winston
makes no particular argument in his brief and this claim of
error is therefore waived.    Rule  5:17(c).
Winston's assignment of error  19 is barred by Rule  5:25.
At trial, Winston conceded that "the motion concerning Michelle
Lipford fails  [sic] for the defendant to put on any evidence."
c.    Evidence concerning Rhonda Robinson's pregnancy
The issue of Rhonda's pregnancy was first raised at a pre-
trial hearing when Winston moved the trial court "to prohibit
the Commonwealth from mentioning anything concerning  .  .  . her
33




pregnancy in the opening statement, voir dire or during its
case in chief."    Winston argued that "the death, the violent
death, of a pregnant woman is inflammatory" and that the fact
of Rhonda Robinson's pregnancy had no relevance to the case.
The trial court sustained "the motion with respect to voir dire
and opening statements" and "reserv[ed] ruling on the
admissibility of that fact at trial."
Just before Nathan Rorls was called as a witness in the
guilt phase of the trial, and out of the presence of the jury,
the parties again argued the admissibility of testimony about
Rhonda's pregnancy.    The Commonwealth, requesting permission to
ask Rorls about Rhonda's pregnancy, argued, "It is our position
that that information should come in as coming through the
defendant as  - and, again, from a credibility point of view, in
that it's information that can be corroborated by independent
information."    Winston countered that such testimony would be
"extremely inflammatory and prejudicial, and that its
inflammatory and prejudicial nature far outweighs any probative
value that it has."    The trial court then entertained
discussion of whether Rhonda's pregnancy would have been
apparent upon viewing her.    After examining photographs of
Rhonda and determining that her pregnancy was not apparent, the
trial court ruled:
34




I'm going to allow it if the witness can
testify as to what the defendant told him about
the appearance.    That's what I'm going to do.
I'm going to allow it into evidence on direct.
You can cross examine him.
Seems to me if it's not apparent, that it's
− that it might be effective cross-examination.
Winston noted his objection.
The Commonwealth did not elicit any evidence of Rhonda's
pregnancy on direct examination of Rorls.    Only after Winston
sought to impeach Rorls' credibility on cross-examination did
the Commonwealth seek to rehabilitate Rorls on re-direct
examination.    Only then was evidence of Rhonda's pregnancy
elicited from the witness.    Rorls had separately testified on
direct and cross-examination that all the information he had
concerning the murders came from Winston, whom Rorls called
"Tootie."    Then, the Commonwealth's Attorney engaged in the
following exchange with Rorls on re-direct examination.
BY MR. DOUCETTE:
Q.    Do you remember any of the details that he
gave you?
A.    Tootie?
Q.    Yeah.
A.    Yeah.
Q.    What?
A.    That she was pregnant.
Q.    She who, she was pregnant?
A.    The girl.
Q.    The girl?
A.    Yeah.
Q.    What girl?
A.    The one that he shot, killed.
Q.    She was pregnant?
A.    Yeah.
Q.    Did you know she was pregnant?
35




A.    No.
Q.    How did you know she was pregnant?
A.    He told me.
Q.    Who told you?
A.    Tootie.
On recross-examination, Winston attempted to get Rorls to admit
that he had received the information about Rhonda's pregnancy
from Tywan Turner.    Rorls denied obtaining such information
from Turner.    Winston was, however, able to establish that
Rhonda's sister, Angela C. Whitehead  ("Angela") knew Tywan
Turner and it was clear from Rorls' direct examination and
cross-examination testimony that he knew Tywan Turner.
The Commonwealth recalled Dr. Susan E. Venuti  ("Dr.
Venuti"), the medical examiner who performed the autopsy on
Rhonda Robinson.    Winston objected to the Commonwealth's
proposal to ask Dr. Venuti about Rhonda's pregnancy.    Winston
argued that whether Dr. Venuti could substantiate the claim
that Rhonda was pregnant was irrelevant.    The Commonwealth
countered that it was offering Dr. Venuti's testimony to
corroborate Rorls' testimony that Rhonda was pregnant.    The
trial court ruled that Dr. Venuti's testimony on Rhonda's
pregnancy was admissible because the subject matter was
"already in."    Winston's objection was noted.    Dr. Venuti's
testimony consisted of a single question and response:
Q.      Dr. Venuti, at the time of her death,
was Rhonda Robinson pregnant?
A.      Yes, she was.
36




In its closing statement, the Commonwealth, in a series of
statements showing how Rorls' testimony was corroborated by
other sources, noted that "Nathan tells us  [Rhonda] was
pregnant.    Dr. Venuti confirms that."
Three of Winston's assignments of error pertain to the
testimony of Rorls and Dr. Venuti concerning Rhonda's
pregnancy.    First, Winston claims the trial court "erred when
it allowed Nate Rorls to testify to the pregnancy of Rhonda
Robinson."                                                        (A.E.  28).    Second, he asserts the trial court
"erred in allowing the prosecution to present prejudicial and
irrelevant evidence concerning Rhonda Robinson's pregnancy."
(A.E.  29).    Third, he complains the trial court "erred by
allowing the medical examiner to testify concerning Rhonda
Robinson's pregnancy."                                            (A.E.  33).    These assignments of error
can be reduced into a single argument that any mention of
Rhonda's pregnancy at trial was irrelevant and, assuming that
Rhonda's pregnancy has any relevance, its probative value was
outweighed by its prejudicial effect on the jury.    We must
analyze Rorls' testimony and Dr. Venuti's testimony in the
context in which they were offered to determine whether the
trial court abused its discretion in admitting their testimony.
For a piece of evidence to be relevant, it must have a
"logical tendency, however slight, to prove a fact at issue in
37




the case."    Clay v. Commonwealth,  262 Va.  253,  257,  546 S.E.2d
728,  730  (2001); Goins v. Commonwealth,  251 Va.  442,  461,  470
S.E.2d  114,  127, cert. denied,  519 U.S.  887  (1996); Charles E.
Friend, The Law of Evidence in Virginia  §  11-1, at  431  (6th ed.
2003).    According to the Commonwealth, the evidence of Rhonda's
pregnancy, introduced by Rorls and Venuti, tended to prove that
Rorls was a credible witness.    In particular, the Commonwealth
attempted to use the evidence of Rhonda's pregnancy to prove
that Rorls received all of his information about the murder of
Rhonda and Anthony from Winston, as opposed to Tywan Turner,
investigators, or Commonwealth's Attorneys, among others.
The evidence was offered only on re-direct examination
after Winston sought to impeach Rorls' credibility and
suggesting that Rorls' knowledge of the murders did not come
from Winston.    If the evidence of her pregnancy was irrelevant
before cross-examination, it certainly was relevant after
cross-examination.
Having established that the evidence submitted by the
Commonwealth concerning Rhonda's pregnancy was relevant and had
a "logical tendency" to prove Rorls' credibility after
attempted impeachment, we must consider whether the trial court
nonetheless abused its discretion in the admission of this
evidence because its probative value is outweighed by its
prejudicial effect upon the jury.    In Justus v. Commonwealth,
38




220 Va.  971,  979-80,  266 S.E.2d  87,  93  (1980), we held that it
was proper to allow the Commonwealth to present evidence that
the victim of a murder subsequent to rape was pregnant, where
such evidence was one of several "pertinent factors to be
considered by the jury in determining the amount of force that
was used by the defendant to accomplish the rape, and the
resistance that was offered by the victim, or that she was
capable of offering."    We are aware of sister states' opinions
suggesting that evidence of a victim's pregnancy may inject
unfair prejudice into a trial by evoking an emotional response
in the jury, particularly in the guilt phase of a trial.    See
People v. Martinez,  734 P.2d  650,  652  (Colo.  1986); People v.
Lewis,  651 N.E.2d  72,  84  (Ill.  1995); State v. Moore,  585 A.2d
864,  887  (N.J.  1991); Orona-Rangal v. State,  53 P.3d  1080,  1085
(Wyo.  2002).    However, these courts have also recognized that
evidence of pregnancy is not inadmissible per se; its
prejudicial effect must be weighed against its probative value.
We note that the Commonwealth utilized the evidence for
the stated purpose of its introduction, namely, to prove the
credibility of Rorls after attempted impeachment by Winston.
The Commonwealth did not sensationalize the evidence and made
only one reference to it in closing arguments, using it to
support the issue of Rorls' credibility.    The evidence was
clearly relevant for the purpose it was offered.    Its
39




introduction was prompted by Winston's attack upon Rorls'
credibility and the particularized attack suggesting that Rorls
did not obtain information about the murders from Winston.
Damaging evidence in the form of admissions by Winston was
introduced through Rorls.    Rorls' credibility became an
extremely important issue in the case.    Because Rhonda's
pregnancy was not visibly apparent, the question of how Rorls
would know became relevant to his credibility.    Under the
circumstances of this case, we cannot say that the prejudicial
impact of the testimony outweighed the probative value of the
evidence.    The trial court did not abuse its discretion in
admitting evidence of Rhonda's pregnancy.
d.    Testimony as to "public knowledge" by police officer
In his assignment of error  30, Winston claims the trial
court "erred in allowing a police officer to testify as to what
was and was not public knowledge."    Winston's claim is targeted
at the testimony of Investigator Raymond D. Viar  ("Viar").
Winston mischaracterizes Viar's testimony.    Following a
series of questions concerning the investigation into Rhonda
and Anthony's murder and Viar's interactions with Rorls during
the course of the investigation, the Commonwealth asked Viar
whether the facts he received from Rorls were "made public at
that time in the course of this investigation."    Winston's
attorneys objected, claiming that Viar "doesn't know what facts
40




are public and what are not."    The trial court permitted the
Commonwealth to ask Viar whether, to his knowledge, the
information had been made public.    The direct examination of
Viar by the Commonwealth continued:
Q.    Mr. Viar, what was your position in this
investigation?
A.    I was a supervisor at that time, the acting
lieutenant for the crimes against persons
investigations.
Q.    And did you in that position have a
supervision authority over everyone
involved in the investigation?
A.    Yes, I did.
Q.    Were you familiar with all of the
information that was gathered by the
members of the investigating team?
A.    Yes.
Q.    Would you be in a position to be aware if
any information had been released to the
public?
THE WITNESS:    I did the press releases.    I
handled all the interviews for this particular
case with the media.    I even wrote the written
news releases that were used to give to the
media people that showed up.
After further objection from Winston's counsel and discussion,
the Commonwealth concluded its examination on this subject as
follows:
Q.    To the best of your knowledge, was any of
the information that was provided to you  −
let me rephrase that.
To the best of your knowledge, was  − the
information that Mr. Rorls provided you,
that had not been released to the public?
A.    Yes, to the best of my knowledge.
41




The clear import of this testimony is that the police had
not released the evidence to the public.    While it might be a
fair inference from Viar's testimony that the public at large
did not know the information, Viar's testimony was simply that
the police did not release the information to the public.    Viar
testified only as to what he knew.    The foundation for his
knowledge was properly established.    Winston simply
mischaracterizes what occurred at trial.    The trial court did
not err in admitting Viar's testimony on this subject.
2.    Jury instructions
a.    Specific Intent
Winston makes three assignments of error relating to jury
instructions  12 and  13, which were given to the jury at trial.
Winston's assignment of error  40 states that the trial court
"erred in giving jury instructions  12 and  13."    Assignment of
error  51 states that the trial court "erred when it failed to
instruct the jury that there must be the specific intent to rob
Anthony Robinson to return a verdict of guilty for the
attempted robbery of Anthony Robinson."    Assignment of error  52
states that the trial court "erred when it failed to instruct
the jury that there must be the specific intent to rob Rhonda
Robinson to return a verdict of guilty for the attempted
robbery of Rhonda Robinson."
Instruction  12 stated as follows:
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The defendant is charged with the crime of
attempted robbery of Anthony Robinson.    The
Commonwealth must prove beyond a reasonable doubt
each of the following elements of that crime:
(1)   That the defendant intended to commit
robbery; and
(2)   That the defendant did a direct act toward
the commission of the robbery which
amounted to the beginning of the actual
commission of the robbery.
If you find from the evidence that the
commonwealth  [sic] has proved beyond a reasonable
doubt each of the above elements of the offense as
charged, then you shall find the defendant guilty but
you shall not fix the punishment until your verdict
has been returned and further evidence has been heard
by you.
If you find that the Commonwealth has failed to
prove beyond a reasonable doubt either of the
elements of the offense, then you shall find the
defendant not guilty.
Instruction  13 was identical in language except it
referred to attempted robbery of Rhonda.
In his argument on the issue, Winston claims that these
instructions require the jury to find only general intent, not
specific intent.    Winston's argument is without merit.    First,
Winston confuses the issue by misusing the terms "general
intent" and "specific intent."    General intent is the intent to
perform an act even though the actor may not desire the
consequences that result.    See Black's Law Dictionary  825  (8th
ed.  2004).    Specific intent is the intent to accomplish the
43




precise criminal act that one is later charged with.    See id.
at  826.
The Commonwealth correctly argues that the instructions
required it to prove for each victim that "the defendant
intended to commit robbery and did a direct act toward the
commission of the robbery."    By having a separate instruction
for each victim, the instructions required the jury to find
each element as to each victim.    Jury instructions  12 and  13
properly required the jury to find that Winston had the intent
to rob both Rhonda and Anthony individually.    The trial court
properly submitted these instructions to the jury.    Winston's
assignments of error on this issue are without merit.
b.    Malice
Winston makes the following three assignments of error:
38                                                                 The trial court erred in failing to instruct
that the jury must find malice to return a
verdict of guilty of capital murder and its jury
instructions  1,  2,  3 were improper.
48                                                                 The trial court erred when it failed to include
the element of malice in the jury instruction
and verdict form for the death of Rhonda
Robinson.
50                                                                 The trial court erred by not instructing the
jury that it must find malice to return a
verdict of guilty for the capital murder of
Rhonda Robinson.
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In his argument addressing these assignments of error,
Winston argues that jury instruction  1 was improper because it
did not require "the jury to find the killing was malicious."
The first jury instruction states, in relevant part:
The defendant is charged with the crime of capital
murder.    The Commonwealth must prove beyond a
reasonable doubt each of the following elements of
that crime:
1)                                                                  That the defendant killed Ronda  [sic]
Robinson; and
2)                                                                  That the killing was willful, deliberate,
and premeditated; and
3)                                                                  That the killing was of more than one
person as a part of the same act or
transaction.
In Mackall,  236 Va. at  254,  372 S.E.2d at  768, we stated
that "[m]alice is subsumed in proof of willfulness,
deliberateness, and premeditation in the commission of a
criminal offense" and that a separate instruction on malice is
unnecessary when those terms are substituted.    Winston argues
that Mackall is distinguishable because "instruction  #1 was
predicated on a double homicide not on a felony murder theory"
and Mackall allowed "the omission of malice as an element due
to the felony-murder rule."    We disagree.    In Mackall, as in
this instance, "the jury was instructed to determine whether
the killing was willful, deliberate, and premeditated," not the
associated felony.    Id. at  254,  372 S.E.2d at  768  (emphasis
45




added).    Winston's assignments of error  38,  48, and  50 are
without merit.
c.    Concert of Action/Joint Participation
Winston asserts that the trial court "erred in instructing
the jury on concert of action and  [that] its jury instruction
24 was improper."                                                  (A.E.  41).    Jury instruction  24 stated:
If there is concert of action with the resulting
crime of attempted robbery, burglary, shooting
into an occupied dwelling or use of a firearm in
the commission of a felony as one of its
incidental probable consequences, then whether
such crime was originally contemplated or not, all
who participate in any way in bringing about those
crimes are equally answerable and bound by the
acts of every other person connected with the
consummation of such resulting crime.
According to Winston, "[t]his instruction tends to
indicate all who participate are guilty of the 'resulting
crime,' reasonably interpreted by the jury to be 'capital
murder' " because the instruction failed to explicitly state
that it did not apply to the capital murder charge.    Winston
unfairly construes the instruction.    By listing four specific
cri

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