"Man who killed wife, son executed," by Bill Baskervill. (AP July 22, 2004)

JARRATT, Va. - Condemned killer Mark W. Bailey was put to death Thursday night for the slayings of his wife and 2-year-old son. Bailey received a lethal injection at the Greensville Correctional Center and was pronounced dead at 9:07 p.m. Asked by warden George Hinkle if he had any final words, Bailey said in a clear, strong voice, "No, thank you."

Gov. Mark R. Warner on Thursday evening had denied Bailey's request for clemency, noting that his case had been reviewed by several courts. The U.S. Supreme Court unanimously denied Bailey's appeal on Wednesday.

Bailey used a .22-caliber pistol to shoot his wife, Katherine, three times in the head as she slept early on Sept. 10, 1998, in their Hampton home. He gunned down his son, Nathan, moments later as the child climbed out of bed. Bailey, 34, claimed he suffered from manic depression and was severely depressed at the time of the slayings because his marriage was on the rocks. A clinical psychologist testified that Bailey also suffered from borderline personality disorder and that impulsive acts are a symptom of the illness.

Bailey said in a videotaped confession that after killing his wife he washed blood off his face. He said he cut the bathroom window screen and outside telephone line to make it look like his family had been killed by an intruder.

The Gulf War veteran and submariner in the Navy was convicted of capital murder in July 1999. Veterans group and Bailey's parents had appealed to Warner to commute the sentence to life in prison without parole. "What he has done was a horrible thing but it can do no good for anyone if he should be executed," Myron and Bonnie Bailey wrote.

Bailey's execution would be the third in Virginia this year and the 92nd since the state resumed executions in 1982 following a 20-year hiatus. Only Texas has executed more.

Richmond Times Dispatch

"Peninsula man set to be executed in killing of wife, son; Mark W. Bailey has filed appeal with high court and asked Warner for clemency," by Frank Green. (July 18, 2004)

Mark Wesley Bailey, a Peninsula man who shot his wife to death and then killed their 2-year-old son, is scheduled to be executed Thursday night. Bailey, 34, has an appeal pending before the U.S. Supreme Court and a clemency petition before Gov. Mark R. Warner.

He was sentenced to die for the Sept. 10, 1998, slaying of his wife, Katherine, who was shot three times in the head as she slept, and their son, Nathan, who was shot twice in the head as he climbed out of bed. The murder weapon was a .22-caliber handgun borrowed from a friend. The slayings occurred around 4:30 a.m. in their Hampton home.

According to his lawyers, Bailey suffers from manic-depressive disorder and was extremely depressed at the time of the slayings because his marriage was failing. Clinical psychologist Evan Nelson testified that Bailey, a Gulf War veteran and U.S. Navy submariner, was suffering from borderline personality disorder. Impulsive acts are characteristic of the disorder, he said.

Bailey told police in a videotaped confession that after killing his wife and son, he washed blood off his face. Before leaving for work, he cut the bathroom window screen and outside telephone line to make it look like a break-in had occurred. He told co-workers his wife had been threatened, and that he had received a telephone call from someone who told him she had been abducted. The police were called. Bailey, a machinist's mate, failed a polygraph examination. He then wrote on a legal pad: "I Mark Bailey do hereby without coercsion [sic] admit to the murder of my wife and son."

A jury convicted him of capital murder in July 1999, and he was sentenced to death on Oct. 5, 1999. His execution by injection is set for 9 p.m. Thursday at the Greensville Correctional Center in Southside Virginia. Bailey declined a request to be interviewed last week, as did family members close to Katherine Bailey.

Steve Robinson, executive director of the National Gulf War Resource Center, a veterans advocacy organization, has written Warner asking that mercy be shown Bailey. "In a perfect world, this tragedy would have been averted by proper diagnosis and care," Robinson wrote in his July 13 letter. "However, we don't live in a perfect world but we do believe that putting Mr. Bailey to death will only make this sad story even worse."

Bailey's oldest sister, Patricia L. Mitrov, of Seminole, Fla., also appealed to Warner for clemency. Bailey and his wife, Katherine, also known as Katie, were first cousins once removed. "This entire situation has torn our family apart," Mitrov wrote. "Katie's grandmother is my father's sister and my aunt. Ever since the trial and the verdict, neither side of the family has spoken to each other. We used to be a very close-knit family." Bailey's "twin brother Michael is also diagnosed bipolar. With medication and therapy, he has been able to lead a very productive life as a neo-natal pediatric ICU nurse," Mitrov wrote. "I know that if Mark had gotten the help he needed when he asked for it, Katie and Nathan would still be with us."

If put to death, Bailey's would be the third execution in Virginia this year. Virginia is second only to Texas in number of executions since the U.S. Supreme Court allowed them to resume in 1976. Virginia has executed 91 people since then; Texas, 323.

Hampton Roads Daily Press

"Hampton man faces execution; Clemency petition is last chance to spare the Navy machinist's life," by Monique Angle. (July 22, 2004)

HAMPTON -- Hours after shooting his wife and 2-year-old son to death, Navy machinist mate Mark Bailey sat at his desk pretending to work. He brewed coffee that morning, chitchatted with co-workers and thought about how he would cover up the murder of his family. That morning, police discovered Katherine "Katie" Bailey, Mark's 22-year-old wife, in the couple's bed with three gunshot wounds to the head. His son, Nathan, was found in the bedroom next door, also shot in the head. The toddler had been climbing out of his crib when he was shot.

Bailey, a Gulf War veteran, is scheduled to be executed by lethal injection at 9 tonight inside the Greensville Correctional Center. A final appeal with the U.S. Supreme Court was denied Wednesday. The 34-year-old, convicted of both murders in 1999, has one last chance, a clemency petition being considered by Gov. Mark Warner. In the last few weeks, family members, mental health advocates and a Gulf War veterans group have sent letters to the governor, asking for Bailey's life to be spared. His lawyers argued that undiagnosed mental problems caused Bailey to kill his wife, who was his first cousin, once removed.

Supporters say if his mental illness had been treated, Bailey might not have killed his family. But some don't buy that argument and neither did the jury, said Hampton Commonwealth's Attorney Linda Curtis, who prosecuted the case. Curtis said Bailey's Grimes Road home was the worst crime scene she has ever seen. "The image is burned in my mind and I'm not sure I'll ever be able to lose it," Curtis said. "There's this image of a child laying on his bed with a pacifier in his mouth, in his footie pajamas, in that child's pose clutching his blanket ... with a bullet hole in the back of his head."

Bailey began planning his wife's death days before the murders, according to trial testimony. He told co-workers that his wife had been receiving threatening notes. He had borrowed the .22 caliber pistol used in the shooting from a friend, and had bought the bullets at a discount store weeks earlier. Bailey's four-year marriage had begun to fall apart and he was convinced his young wife, who had dreams of being a paramedic, was having an affair.

Bailey declined a request this week for comment. But in a prison interview in 2000, Bailey said he was suicidal when he killed his wife, as he had been during other tough times in his life. The morning of the shootings, Sept. 10, 1998, Bailey said, he slipped out of bed, put the gun to his head but couldn't pull the trigger. About 4:25 a.m. he went to his bedroom and shot his wife three times in the back of her head as she slept. "I was numb," Bailey said. "Looking back on it, it seems like my mind was a total blank. I guess I just went into shock."

When he heard his 2-year-old son wake up in the room next door, Bailey said panic set in. He said he didn't want his son to see his mother's bullet-riddled body, so he shot him twice in the head. Bailey said he tried to kill himself again after the shootings, but couldn't. So he hatched a plan to cover up the murders, cutting a phone line and slicing a window screen. He cleaned up, went to work and told his boss he'd received a threatening phone call concerning his wife's safety. Bailey's boss called the police. Almost immediately after finding the bodies, police decided there hadn't been a break-in. After several hours of questioning, Bailey confessed to killing his family.

Neither Mark nor Katie's immediate families had ever supported the decision for the cousins to get married. When they announced that they planned to marry, an emergency meeting was put together to talk them out of it. "But they were determined," Katherine Logan, Katie's mom said in a 2000 interview. "They told us, once she turned 18, there was nothing we could do to stop them."

At the July 1999 trial, the once close-knit extended family sat on opposite sides of the courtroom. Witnesses testified Bailey had been raped on two occasions and had attempted suicide several times. A clinical psychologist testified that Bailey suffered from "an extreme mental state with a borderline personality disorder." The psychologist also testified that Bailey was impulsive and that people with such illnesses often end up sabotaging their own relationships. The trial also unearthed secrets about the Baileys' marriage. He and his twin brother had swapped wives while on vacation in Florida, according to testimony.

Bailey said he became upset after the birth of his child because his wife seemed to only have time for their son. She had begun waiting tables, and would arrive home late in the night, arousing his suspicion. He started to believe that his marriage was ending, and he became severely depressed, he said. But his mental health diagnosis didn't sway the jury. "I did not believe it was significant nor did the jury," said Curtis who sought the death penalty against Bailey for both murders.

The jury sentenced him to death for his son's murder and to life in prison for the shooting of his wife. Nathan's killing fell under a statute that mandates a capital murder charge when the victim is under 14 and the killer is 21 or older.

After the trial, Logan rejoiced in hearing the verdict. "I never cared what the sentence was, whether he got death, or life," she said right after the trial. "As long as we got a verdict of guilty. For the world to know that he did what he did." The saga didn't end at the trial.

Months after his conviction, Bailey's parents and Logan filed lawsuits in federal court about the proceeds of a $125,000 life insurance policy on Katie. Bailey's mother, Bonnie, was the second beneficiary - the person who would receive the money in the event the primary spouse could not receive it. Virginia's so-called slayer laws prevent the person who caused someone's death to benefit from their insurance policy. Bonnie Bailey wanted to use the money to pay for a lawyer to represent her son in the appeals process. Logan was outraged.

By the fall of 2000, the cases were settled in mediation, with the policy proceeds split between Logan and Bailey's parents, said John Bane, the Hampton attorney who represented Logan in the lawsuit. The judge didn't stipulate how the money could be used, which would have allowed Bonnie Bailey to spend the money on her son. It's unclear what she did with the money. She could not be reached for comment.

In recent weeks, family members and others have been making last minute pleas to save Bailey's life. Steve Robinson, the executive director of the National Gulf War Resource Center, wrote a letter to Gov. Mark Warner on behalf of Bailey. Robinson reviewed the case, looked at his medical records and saw that Bailey had been a submariner and a Gulf War veteran. He said if Bailey had gotten prior treatment for his mental illness while in the military, he may not have committed the crimes. "While his crimes are inexcusable," Robinson said, "he is about to be executed, but not all of the facts were considered."

Bailey's parents have asked the governor to spare the life of their son. "What he has done was a horrible thing but it can do no good for anyone if he should be executed," they wrote in a letter. "Katie was a part of our family and is missed every day. Nathan was a much loved grandchild with the smile of a cherub. His death has left a hole in our lives." It's also changed the families - perhaps permanently.

TIMELINE

1993: Mark Bailey, a Gulf War veteran, marries Katie, his teenage first cousin once removed.

1998: Bailey kills Katie, 22, and their 2-year-old son, Nathan, at their Hampton home. He confesses to the crime that day.

1999: Bailey is sentenced to death for killing his son. He receives life in prison for killing his wife. At the trial, the defense argues that Bailey was suicidal, had been raped and had been suffering from mental illness.

2000: Bailey's parents and Katie's mother file lawsuits to determine who should get Katie's $125,000 insurance policy, which sets Bailey's mother as the contingent beneficiary.

2000: Concerned that Bonnie Bailey would use the money for lawyers for her son's appeals, Katherine Logan, the victim's mother, files suit. They settled in mediation, splitting the money.

National Coalition to Abolish the Death P{enalty

Mark Bailey, VA - July 22, 9 PM EST

The state of Virginia is scheduled to execute Mark Bailey, a white man, July 22 for the 1998 murder of his wife, Katherine Bailey, and son, Nathan Bailey in Norfolk County. Mr. Bailey, a veteran of the first Gulf War, was a sailor of nine years, assigned to the Norfolk Naval Station, and suffered from bipolar disorder.

He killed his wife because he was convinced she was having an affair, and killed his son because he did not want him to see his dead mother.

Mr. Bailey was being effectively overdosed on 900 mg. of lithium per day at trial, well over the acceptable “maintenance levels” to control bipolar disorder. There are affidavits from the jury stating that Mr. Bailey was in a sedative state at trial, and one reason for sentencing him to death was his sedative state and inability to register emotion or remorse. These symptoms are indicative of a lithium overdose.

At trial, the court refused funds to hire a defense investigator. There are further affidavits from friends and family members who were never contacted, saying that they had been available to testify as to Mr. Bailey’s mental illness, and his extensive family history of mental illness.

This testimony would have supported his diagnoses of bipolar disorder, which can be medically treated. Instead, the prosecution produced testimony that he suffered from a “personality disorder” that could not be treated, thus supporting their claim that Mr. Bailey presented a future danger to society. Bipolar disorder is a brain disorder characterized by extreme shifts in mood, energy, and ability to function.

Mr. Bailey was drugged at trial, and the jury never received accurate information about his illness. Two of the reasons given for sentencing were his lack of remorse and his future dangerousness, both incorrect.

Please take a moment and contact Gov. Mark Warner and urge him to stop the execution of Mark Bailey. Please futher urge him to support legislation ending the execution of those who suffer from mental illness.

Virginians for Alternatives to the Death Penalty

Mark Bailey - Execution Date Set - July 22, 2004

Mark Wesley Bailey has been scheduled for execution on Thursday, July 22, 2004, by the State of Virginia. At the time of his arrest in 1998 for the murder of his wife and son, Mark had been an active duty member of the U.S. Navy for nine years. He served in combat for eight months during Operation Desert Storm.

Evidence of sexual abuse, repeated suicide attempts, and un-treated bi-polar syndrome were introduced at his trial.

Mark Bailey turned 34 last week on Death Row at Sussex I State Prison. A clemency Petition will be filed with Gov. Warner. Individuals should send letters and emails and place phone calls on Mark’s behalf requesting that the Governor commute his sentence to life in prison without parole.

Pasted below you will find a sample email letter that you can send to Governor Warner on Mark Bailey’s behalf.

Vigils will be held throughout the State of Virginia including outside the gates of the Greeensville Correctional Center, site of Virginia’s Death House on July 22nd.

Letters can be addressed to the Hon. Mark R. Warner at the following address:

Gov. Mark R. Warner
State Capitol, 3rd Floor
Richmond, Virginia 23219
Phone: (804) 786-2211 Fax: (804) 371-6351
TTY/TDD (For the Hearing Impaired): (804) 371-8015

Dear Governor Warner,

I am writing to you on behalf of Mark Wesley Bailey who is scheduled for execution on July 22, 2004.

There is no question of guilt. Mr. Bailey confessed to the crimes. What is in question is the life of a human being who served in our Armed Forces during the first Gulf War, Operation Desert Storm. He was still on active duty at the Norfolk Naval Station when the double murder was committed.

Mark has a psychological history that includes both being raped on at least two occasions and three suicide attempts. In addition there is a history of untreated bi-polar disorder.

In spite of this history there is no record of any illegal activity until his capital murder conviction. I would urge you to show mercy to this individual and commute his death sentence to life in prison without parole.

Sincerely,

**********

Mark Bailey

On September 10, 1998, Mark Bailey shot his 22-year-old wife and 2 1/2-year-old son as they were asleep in their beds. Bailey, a member of the U.S. Navy, reported to work shortly after he killed his family. His supervisor called police after Bailey told his supervisor that he had received a suspicious phone call and was concerned about the welfare of his wife. Upon arriving at Bailey's home, police discovered the bodies of the victims. Shortly thereafter Bailey was taken to police headquarters and questioned. After holding Bailey at the police station for seven hours, the police believed they had probable cause to arrest Bailey for the murder of his wife and child. During these seven hours, Bailey admitted to killing his wife and child. At trial, the court refused to exclude the confession from being admitted into evidence despite the fact that Bailey claimed he did not know he was free to leave the police station at any time prior to his being arrested.

An execution date of July 22, 2004 has been scheduled for Mark Bailey. He has exhausted both his state and federal appeals.

Mark Bailey has been on death row since October 5, 1999.

DOB: 05-27-70 Hampton County Murder 2 Counts Inmate #274584 Sentencing Date: 10-5-99

Virginians United Against Crime

Victims: Katherine Bailey, Nathan Bailey
Murderer: Mark Bailey
Date and Location of Murders: September 10, 1998, City of Hampton
Aggravating Factor: Multiple homicides
Execution Date: July 22, 2004

Norfolk Virginian-Pilot - September 11, 1998 (Page B1)

"POLICE CHARGE HAMPTON MAN IN SLAYING OF WIFE, SON BOTH WERE SHOT IN BED EARLY THURSDAY," by ERIKA REIF, STAFF WRITER.

A 28-year-old man has been charged with killing his wife and their 2 1/2-year-old son - allegedly shooting both as they lay in their beds early Thursday, police said. Mark Bailey has been charged with two counts of first-degree murder and two counts of using a gun while committing a felony.

Investigators said the suspect attempted to cover the crime by making it appear that someone had broken into the home. Police spokesman Cpl. Jeff Walden said Katherine E. Bailey, 22, was found shot to death in her bedroom. The couple's son, Nathan Mark Bailey, was found dead in an adjoining bedroom at their home in the 1500 block of Grimes Road. ``It didn't appear there was a struggle from either victim,'' Walden said.

Police discovered the bodies about 6:50 a.m. after responding to a call reporting that there might be a problem at the address. When they arrived, officers knocked on the front door. When no one answered after several minutes, they found the door was unlocked and they entered. They found the bodies moments later. No one else was home.

Investigators discovered that a window screen had been sliced and all phone lines to the house had been cut. But they later determined that it was a ruse, Walden said, ``to make it appear as though there had been an intruder.'' Shortly after officers had arrived, Mark Bailey showed up, accompanied by his supervisor. He was told of the deaths and taken to police headquarters.

``After speaking with him for several hours, probable cause was developed to arrest and charge him with the murder of his wife and his child,'' Walden said.'' Walden said Bailey, who is in the Navy, had reported for duty as normal Thursday morning at the Shore Intermediate Maintenance Activity at Norfolk Naval Station. Shortly after arriving to work, Bailey allegedly told his supervisor that ``he had received a suspicious phone call,'' Walden said, and ``needed to check on the welfare of his wife.'' It was the supervisor who called Hampton police before accompanying Bailey to his home.

A .22-caliber semi-automatic pistol, believed to have been used in the slayings, was found at Bailey's workplace. Nearby residents told detectives that they heard gun shots about 4:30 a.m. But ``none of the neighbors ever called the police,'' Walden said. The bodies were taken to the state medical examiner's office in Norfolk for examination. Bailey was being held without bond in the city jail Thursday night and is scheduled to be arraigned this morning.

ProDeathPenalty.Com

In 1999, it took just over an hour for a jury to find Mark Wesley Bailey guilty of capital murder and 1st-degree murder in the shooting deaths of his wife and 2-1/2-year-old son. Bailey, who showed no emotion during the reading of the verdicts, was found guilty of 2 counts of capital murder, both in connection with the Sept. 10, 1998, death of his son, Nathan Bailey. The jury found that Nathan's death was a "willful, deliberate and premeditated killing" that took place as part of the same act as the killing moments before of Bailey's wife, Katherine.

The 2nd count was brought under a statute that states capital murder can be charged when the victim is under 14 and the killer is 21 or older. Bailey was charged with first-degree murder in Katherine's death and faces 20 years to life on that count. He was also found guilty of the use of a firearm while committing each of the killings, adding 8 more years.

The defense didn't dispute that Bailey committed the murders or that he'd intended to kill Katherine. "The plan of Mark Bailey to kill his wife, Katie, is clearly shown," Attorney George M. Rogers III said in his closing remarks. But Nathan's death was not planned, he said. "You haven't heard anybody in this courtroom say that," Rogers said. "The evidence has not said at all that he planned to kill Nathan." Rogers said the lack of planning was clearly shown in Bailey's videotaped confession to police. Armed with a .22-caliber pistol that morning, Bailey said he walked into his bedroom at the family's Grimes Road home three times before finally firing 3 shots into his wife's head. Even though he'd balked twice before killing her, he'd planned the act for days, he admitted to police. But then he heard Nathan stirring in his room across the hall. Bailey walked into his room. "He was waking up, stepping out of bed," Bailey said on the tape. "Next thing you know, I put two shots into him, too." At this point, Bailey broke down. "I said, 'I'm sorry,' " he sobbed. "Now my son's gone."

During a separate confession the day of the killings, Hampton police asked why he had shot his son. Bailey wrote, "I was scared that he would walk in and see his mom. I didn't know what else to do." During his taped confession, Bailey also expressed his frustration and anger over his deteriorating marriage and what he said was his late wife's unfaithfulness and iron grip on his life. "I wanted my family back," he said. "The only thing I wanted in my life was my boy." He told police, "I guess this morning I just lost it."

But Bailey did plan it, Commonwealth's Attorney Linda Curtis argued. She said he'd been "thinking" about killing his wife for several days and tried to cover the crime by repeatedly telling a Navy co-worker that his wife had received threatening notes." And while a finding of premeditation means a plan had been hatched to commit the crime, such a plan "need not exist for any length of time." It doesn't matter, she said, "that his plan for killing Katherine was longer than his plan to kill Nathan. "Remember the image of that child," Curtis said, "trying to get out of that bed. That's all the premeditation you need. "We know he planned it."

Bailey v. Commonwealth, 529 S.E.2d 570 (Va. 2000) (Direct Appeal).

Defendant was convicted in the Circuit Court, City of Hampton, Walter J. Ford, J., of capital murder and first-degree murder arising from shooting deaths of his wife and two-year-old son, and was sentenced to death. Defendant appealed. The Supreme Court, Koontz, J., held that: (1) adequate foundation was laid for admission of crime scene photographs; (2) statutory scheme for conduct of capital murder trials and review of death sentences does not violate due process; (3) defendant was not "in custody" for Miranda purposes when he gave initial confession at police station; (4) post-Miranda confession was not a result of police coercion; (5) single indictment was worded to permit convictions for two offenses of capital murder; (6) evidence was sufficient to support convictions; and (7) death sentences were appropriate. Affirmed.

KOONTZ, Justice.
As mandated by Code § 17.1-313, we review the convictions and death sentences imposed upon Mark Wesley Bailey (Bailey), for the capital murder of Nathan Mark Bailey (Nathan), Bailey's two-year-old son. We also review Bailey's convictions for the first-degree murder of Katherine Ester Bailey (Katherine), Bailey's wife, and use of a firearm in the commission of capital murder and first-degree murder.

By order entered January 27, 2000, we certified from the Court of Appeals of Virginia to this Court the record of Bailey's appeal of the noncapital convictions (Record No. 000151). The effect of the certification is to transfer jurisdiction over the noncapital appeal to this Court. Code § 17.1-409(A) Because the certification occurred after the filing of the opening brief in the capital appeal (Record No. 992840), we permitted Bailey to file a supplemental brief based upon the petition for appeal he had filed in the Court of Appeals. Only the first of Bailey's assignments of error in the supplemental brief raises an issue not already raised in the capital appeal. The remaining assignments of error in the supplemental brief, numbers 2, 3, and 4, correspond to assignments of error numbers 10, 11, and 12 in the capital appeal. Accordingly, we will address those issues in this opinion with reference to the latter designations.

BACKGROUND

Under familiar principles of appellate review, we will review the evidence in the light most favorable to the Commonwealth, the party prevailing below. Clagett v. Commonwealth, 252 Va. 79, 84, 472 S.E.2d 263, 265 (1996), cert. denied, 519 U.S. 1122, 117 S.Ct. 972, 136 L.Ed.2d 856 (1997). In his opening brief, Bailey recounts a self-serving narrative of his wife's infidelity which he contends drove him to commit these crimes. The facts underlying this narrative were developed during the penalty-determination phase of Bailey's trial as evidence in mitigation against the death penalty. The prurient details of this evidence are not relevant to any issue to be considered in these appeals other than the appropriateness of the imposition of the death penalty. Accordingly, we will limit our present recitation of the facts to those relevant to our consideration of Bailey's assignments of error.

Bailey was married to Katherine, his cousin whom he had known most of his life and with whom he had been romantically involved for over a year, on December 25, 1993 in Reno, Nevada. In March 1996, Katherine gave birth to the couple's son, Nathan. After the birth of their son, the couple became emotionally estranged, although they continued living in the same household.

In mid-1998, Bailey began relating to his co-workers a fabricated account of his wife having received threatening telephone calls and notes. Bailey subsequently admitted to police that he invented these stories in order to divert suspicion from himself when he murdered his wife. In August 1998, Bailey borrowed a .22-caliber pistol from a friend and purchased ammunition for the pistol.

On September 10, 1998, Bailey awoke about 4:30 a.m., went to the bedroom where his wife was sleeping, and shot her three times in the head with the borrowed pistol. Bailey then heard Nathan awaking in the next bedroom. He went to his son's bedroom and shot the child twice in the head as the child was climbing out of bed. Bailey washed blood off his face and dressed for work. He cut the bathroom window screen with a razor knife and cut the outside telephone line in order to give the appearance that a break-in had occurred. Bailey then left for work, taking the pistol and razor knife with him.

When Bailey arrived at work, he told Richard Moravec, his supervisor, that his wife had received another threatening note that read "X-U-T" or "X-U-P" and that he believed this meant "Time's up." Bailey repeated this story to Joseph Yount, Moravec's supervisor. A short time later, Bailey told Moravec that he had received a telephone call from someone claiming that he "had [Bailey's] wife." Moravec reported these events to Yount, who instructed Moravec to call the police. Yount then accompanied Bailey to Bailey's home.

When Yount and Bailey arrived at Bailey's home, police had already arrived and an officer emerging from one of the bedrooms stopped the two men in the living room. Yount suggested that they wait outside. Yount later testified that as they waited Bailey "was stone-faced and cold-looking." Thomas Killilea, a detective with the Hampton Police Department, informed Bailey that his wife and son were dead. Killilea testified that upon hearing this, Bailey lurched forward and appeared to have tears in his eyes. Bailey then told Killilea about the threatening telephone calls and notes that he claimed his wife had received. Killilea asked Bailey to accompany him to the police station and Bailey agreed. Bailey rode in the front of Killilea's police vehicle; Yount rode in the back seat. Bailey was not under arrest at this time. At the police station, Bailey signed a consent form allowing the police to search his home; he also consented to take a polygraph test. While at the police station, Bailey was offered food, drink, and the opportunity to use the lavatory. He engaged the police officers in casual conversation and was allowed to step outside to smoke cigarettes. During this time, Bailey wrote a statement detailing the fictitious story of the threats made against his wife.

The polygraph was administered to Bailey at 12:15 p.m. During the polygraph, the examiner detected deception in Bailey's response to the question, "Are you intentionally withholding the name of the killer ...?" The examiner asked Bailey if he thought it was time to tell the detectives "what was really going on." Bailey looked at the floor and answered, "[Y]eah." At 1:42 p.m., Bailey was taken to an interview room where Killilea and Detective Jimmy L. Forbes spoke to him for a little over an hour. Bailey was mostly unresponsive during this interview. Forbes raised the subject of his own religious beliefs. He suggested that Bailey needed to get his "heart right with the Lord and that his soul would not rest until he did." Bailey asked for a soft drink. When Killilea left the room to get the soft drink, Bailey took a legal pad and pen from the table in the interview room and wrote, "I Mark Bailey do hereby without any coercsion [sic] admit to the murder of my wife and son."

When Killilea returned with the soft drink, Forbes showed him the statement Bailey had written. Bailey then said, "You got what you wanted. I guess I'm not leaving now." At 3:19 p.m., Bailey was advised of his Miranda rights, and the detectives began an interrogation that lasted until 5:45 p.m. During this period Bailey wrote out answers to the detectives' questions and a videotape of his confession to the murders was made.

During his stay at the police station Bailey never asked to leave, nor did he request an attorney. At the conclusion of the interrogation, Bailey remarked to Killilea, "You probably think I'm an [expletive deleted] for killing my wife and family--or my wife and son." The detective explained that if he had thought that he would not have treated Bailey with dignity and respect. Bailey agreed he had been "treated well."

A. Pre-trial
On December 7, 1998, the grand jury of the City of Hampton returned an indictment against Bailey charging him with the capital murder of Nathan as part of the same act or transaction as the killing of Katherine, Code § 18.2-31(7) "and/or" as the killing of a person under the age of fourteen by a person twenty-one years of age or older, Code § 18.2-31(12) . In separate indictments, Bailey was also charged with the first-degree murder of Katherine, Code § 18.2-32 , and with one count of the use of a firearm in each of the two killings, Code § 18.2-53.1.

* * * Having reviewed the capital murder convictions, the death sentences imposed thereon, and the related convictions and sentences for first-degree murder and the firearm charges, we find no reversible error in the record, and perceive no reason to commute the death sentences. For these reasons, we will affirm the judgment of the trial court.

Orbe v. True, 201 F.Supp.2d 671 (E.D.Va. 2002) (Habeas).

State prisoner whose death sentence upon capital murder conviction, affirmed at 258 Va. 390, 519 S.E.2d 808, was stayed to allow him opportunity to file habeas corpus petition filed two prepetition motions, seeking an order preserving all evidence relating to his conviction and sentence, and seeking leave to depose jurors at guilt-phase of murder trial. The District Court, Ellis, J., held that: (1) preservation order was not mandated by Constitution or Virginia law; (2) preservation order was not necessary to ensure proper administration of justice; (3) petitioner was not entitled to conduct prepetition discovery; and (4) even if such discovery were allowed, petitioner failed to show good cause to warrant leave to depose jurors. Motions denied.

Bailey v. True, 100 Fed. Appx. 128 (2004) (Habeas).

Background: After his murder convictions and death sentence were upheld on direct appeal, 259 Va. 723, 529 S.E.2d 570, petitioner sought federal habeas corpus relief. The United States District Court for the Eastern District of Virginia, Gerald Bruce Lee, J., dismissed petition. Petitioner appealed.

Holdings: The Court of Appeals held that: (1) counsel's acceptance of mental health professional's diagnosis of petitioner did not support claim of ineffective assistance of counsel, and (2) state supreme court's finding that medication was not responsible for petitioner's emotionless demeanor at trial was not unreasonable determination of the facts, and did not support habeas relief. Affirmed.

PER CURIAM:
In the early morning of September 10, 1998, Mark Wesley Bailey brutally murdered his wife, Katherine Bailey, and two-year-old son, Nathan Bailey, by shooting them both repeatedly through the head. See Bailey v. Commonwealth, 259 Va. 723, 529 S.E.2d 570, 573 (Va.2000). The murder was premeditated and committed in cold blood. As he later admitted to police, Bailey had, for several months leading up to the murders, fabricated stories that his wife had received threatening calls and notes, and related these stories with feigned concern to his coworkers. Id. After committing the murder, Bailey cut the bathroom screen window and the telephone line to the house to give the appearance of a break-in. Id. And, later that same morning, Bailey reported to work and attempted to act as if nothing had happened.

For this crime, Bailey was convicted in the Commonwealth of Virginia of two counts of capital murder and one count of murder in the first degree on July 21, 1999. He was sentenced to death three days later. Following an unsuccessful direct appeal of his conviction and sentence to the Virginia Supreme Court, see generally, id., Bailey sought relief from his sentence in state post-conviction proceedings. On January 11, 2002, the Virginia Supreme Court, again, denied relief. Bailey filed a petition for a writ of habeas corpus in federal district court under 28 U.S.C. § 2254 on August 30, 2002. In his petition, Bailey alleged twelve independent constitutional errors in his conviction and sentence. The district court reviewed each of Bailey's claims, and, finding them to be meritless, dismissed Bailey's petition. Bailey then asked this court to issue a certificate of appealability, as required by 28 U.S.C. § 2253(c) , on ten of the claims he raised before the district court. We granted a certificate of appealability on two of the claims.

Having now carefully considered both claims, we affirm the order of the district court, dismissing Bailey's petition for a writ of habeas corpus.

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