Claudine Lee Parker(55)	September 21, 2002 PM	Montgomery, AL	outside liquor store
Hong Im Ballenger	September 23, 2002 PM	Baton Rouge, LA	beauty shop parking lot
James Martin (55)	October 2, 2002, 6:04 PM	Wheaton, Maryland	grocery store parking lot
James Buchanan (39)	October 3, 2002, 7:41 AM	Rockville, Maryland	cutting grass at auto dealership
Premkumar Walekar (54)	October 3, 2002, 8:12 AM	Aspen Hill, Maryland	gas station
Sarah Ramos (34)	October 3, 2002, 8:37 AM	Silver Spring, Maryland	post office
Lori Ann Lewis-Rivera (25)	October 3, 2002, 9:58 AM	Kensington, Maryland	vacuuming car at gas station
Pascal Charlot (72)	October 3, 2002, 9:20 PM	Washington, D.C.	standing on street
Dean Harold Meyers (53)	October 9, 2002, 8:18 PM	Manassas, Virginia	gas station
Kenneth Bridges (53)	October 11, 2002, 9:40 AM	Fredericksburg, Virginia	gas station
Linda Franklin (47)	October 14, 2002, 9:19 PM	Falls Church, Virginia	outside Home Depot store
Conrad Johnson (35)	October 22, 2002, 5:55 AM	Aspen Hill, Maryland	on commuter bus

Paul J. LaRuffa was a restaurateur in Clinton, Maryland. At the end of the day on September 5, 2002, LaRuffa closed his restaurant and proceeded to take his laptop computer and $3500 in cash and credit receipts to his car. After he sat behind the steering wheel, he saw a figure to his left and a flash of light, then heard gunshots. LaRuffa was shot six times, but survived. An employee who left the restaurant with LaRuffa witnessed the shooting and called 911. He testified that he saw a “kid” run up to LaRuffa's car, fire into it, and take the briefcase and laptop. Muhammad v. Virginia, 269 Va. 451, 619 S.E.2d 16, 25 (2005). The briefcase and empty deposit bags were found six weeks later in a wooded area approximately a mile from the shooting. The DNA from clothing found nearby was consistent with that of Lee Boyd Malvo.

On September 15, 2002, there was a second shooting in Clinton, Maryland: Muhammad Rashid was locking the front door of the Three Roads Liquor Store from the outside when he heard gunshots behind him. A young man then rushed him and shot him in the stomach. Rashid testified that the young man was Malvo.

Almost a week later, on September 21, 2002, Claudine Parker and Kelly Adams were shot after closing the Zelda Road ABC Liquor Store in Montgomery, Alabama. Parker died as a result of her gunshot wound through the back-the bullet transected her spinal cord and passed through her lung. Adams was shot through the neck, and the bullet exited through her chin, breaking her jaw in half, shattering her face and teeth, paralyzing her left vocal cord, and severing nerves in her left shoulder. Yet, she survived. Bullets recovered from the shooting were eventually identified as coming from a Bushmaster high-powered rifle. While the rifle was being fired, Malvo was seen approaching Parker and Adams. A police car passed by the scene immediately after the shooting, and the officers observed Malvo going through the women's purses. The officers gave chase, but Malvo escaped. In the process, however, he dropped a gun catalog. Malvo's fingerprints were found on the catalog, and a .22-caliber, stainless-steel revolver was found in the stairwell of an apartment building that Malvo traversed. The revolver was the same as the one used to shoot LaRuffa and Rashid.

Two days later, on September 23, 2002, the manager of a Baton Rouge, Louisiana, Beauty Depot store, Hong Im Ballenger, was walking to her car after closing the store for the evening when she was shot once in the head. The bullet entered the back of her head and exited through her jawbone. She died as a result of the wound. The bullet was determined to have come from the Bushmaster rifle found on Muhammad during his arrest. Witnesses saw Malvo flee from the scene with Ballenger's purse.

The sixth and seventh shootings occurred in Silver Spring, Maryland, on October 3, 2002. At approximately 8:15 a.m., Premkumar A. Walekar was shot while fueling his taxicab. The bullet went through his left arm and entered his chest, where it fatally damaged his heart. At approximately 8:30 a.m., Sarah Ramos was killed while sitting on a bench in front of the Crisp & Juicy Restaurant in the Leisure World Shopping Center. The bullet entered through the front of her head and exited through her spinal cord at the top of the neck. Both bullets were identified as having come from a Bushmaster rifle, and an eyewitness identified Muhammad's Chevrolet Caprice at the scene of the second shooting.

On October 3, 2002, at approximately 10:00 a.m., Lori Lewis-Rivera was shot in the back while vacuuming her car at a Shell gas station in Kensington, Maryland. The bullet was identified as coming from a Bushmaster rifle. An eyewitness said that he saw a Chevrolet Caprice in the area approximately twenty minutes before the shooting. At approximately 7:00 p.m., a police officer stopped Muhammad for running two stop signs. The officer gave Muhammad a verbal warning and released him. Later that night, at approximately 9:15 p.m., Pascal Chariot was shot in the chest as he crossed the inter section of Georgia Avenue and Kalmia Road in the District of Columbia. Chariot's shooting happened about thirty blocks from where Muhammad was stopped. The bullet fragments from both the Lewis-Rivera and the Chariot shootings were identified as coming from a Bushmaster rifle.

The next day, October 4, 2002, Caroline Seawell was putting bags in her minivan outside of a Michael's craft store in Fredericksburg, Virginia, when she was shot once in the back. The bullet damaged her liver and exited through her right breast, but she survived the attack. An eyewitness testified to seeing a Caprice in the parking lot at the time of the shooting, and ballistics tests determined the bullet fragments came from a Bushmaster rifle.

On October 6, 2002, Tanya Brown was taking Iran Brown to Tasker Middle School in Bowie, Maryland. As Iran was walking on the sidewalk to the school, he was shot once in the chest. Tanya drove Iran to a health care center where surgeons were able to save his life despite lung damage, a large hole in his diaphragm, damage to the left lobe of his liver, and lacerations to his stomach, pancreas, and spleen. Two eyewitnesses testified that they saw a Caprice in the vicinity of the school the day before and the morning of the shooting. One eyewitness positively identified both Muhammad and Malvo in the Caprice the morning of the shooting. The police searched the surrounding area and found a ballpoint pen and a shell casing in the woods near the school. The area had been pressed down like a blind used to conceal hunters. The tissue samples from the pen matched Muhammad's DNA, and the shell casing and bullet fragments were determined to have come from a Bushmaster rifle. The Brown shooting was also the first time that police discovered communications from the shooters. The tarot card for death was found, and on it was written, “Call me God.” On the back, someone had written, “For you, Mr. Police. Code: Call me God. Do not release to the Press.” Muhammad v. Virginia, 619 S.E.2d at 27.

Three days later, on October 9, 2002, Dean Meyers was fueling his car at a Sunoco station in Manassas, Virginia, when he was shot in the head by a single bullet. The bullet was later determined to have come from a Bushmaster rifle. An eyewitness testified that she saw Muhammad and Malvo in the area approximately one hour prior. The police actually interviewed Muhammad in a parking lot across the street immediately after the shooting, and they later found a map with Muhammad's fingerprints in the parking lot.

On October 11, 2002, Kenneth Bridges was fired upon at an Exxon gas station in Massaponax, Virginia. He was shot once in the chest by a bullet identified as having come from the Bushmaster rifle. Two eyewitnesses testified that they saw a Caprice at or near the Exxon that morning.

The fourteenth shooting occurred on October 14, 2002, in Falls Church, Virginia. Linda Franklin and her husband were loading their car outside of a Home Depot when she was shot in the head by a single bullet and killed. Ballistics experts determined that the bullet was from a Bushmaster rifle.

The next day, October 15, a Rockville, Maryland, dispatcher received the following telephone call: “Don't say any thing, just listen, we're the people who are causing the killings in your area. Look on the tarot card, it says, ‘call me God, do not release to press.’ We've called you three times before trying to set up negotiations. We've gotten no response. People have died.” Id. at 28. The caller hung up before the dispatcher could transfer the call to the Sniper Task Force.

Three days later, on October 18, Officer Derek Baliles of the Montgomery County, Maryland, Police received a telephone call. The caller told Baliles to “shut up” and said that he knew who was doing the shootings, but wanted the police to verify some information before he said anything further. Id. The caller asked questions about the Parker and Adams shootings in Alabama and hung up again. When the caller called again, Baliles verified the shootings. The caller stated that he needed to find more coins and a telephone without surveillance, then hung up. The same day, William Sullivan, a priest in Ashland, Virginia, received a telephone call from two people. The first male voice told him that someone else wanted to speak to him. The second male voice said that “the lady didn't have to die,” and “it was at the Home Depot.” Id. The caller then told him about the shooting in Alabama and said, “Mr. Policeman, I am God. Do not tell the press.” Id. The caller concluded by telling Sullivan to relay the information to the police.

The next day, October 19, 2002, Jeffery Hopper and his wife were leaving a restaurant in Ashland, Virginia, when he was shot in the abdomen. Hopper survived, but his injuries required five surgeries to repair his pancreas, stomach, kidneys, liver, diaphragm, and intestines. In the woods near the crime scene, police discovered another blind similar to the one at the Brown shooting. They also found a shell casing, a candy wrapper, and a plastic sandwich bag that was attached with a thumbtack to a tree at eye level and was decorated with Halloween characters and self-adhesive stars. The shell casing and bullets were determined to have come from a Bushmaster rifle. The candy wrapper contained Muhammad's and Malvo's DNA. The sandwich bag contained a handwritten message: For you Mr. Police. “Call me God.” Do not release to the Press. We have tried to contact you to start negotiation ... These people took our call for a Hoax or Joke, so your failure to respond has cost you five lives. If stopping the killing is more important than catching us now, then you will accept our demand which are non-negotiable. (i) You will place ten million dollar in Bank of america account ... We will have unlimited withdrawl at any atm worldwide. You will activate the bank account, credit card, and pin number. We will contact you at Ponderosa Buffet, Ashland, Virginia, tel. # ... 6:00 am Sunday Morning. You have until 9:00 a.m. Monday morning to complete transaction. “Try to catch us withdrawing at least you will have less body bags.” (ii) If trying to catch us now more important then prepare you body bags. If we give you our word that is what takes place. “Word is Bond.” P.S. Your children are not safe anywhere at anytime. Id. at 28-29 (alterations in original). However, the note was not discovered until after the deadline had passed. Surveillance videotapes from that day identified Muhammad at a Big Lots store near the shooting.

The day after Hopper was shot, the FBI Sniper Tip Line received a call from a male who stated, “Don't talk. Just listen. Call me God. I left a message for you at the Ponderosa. I am trying to reach you at the Ponderosa. Be there to take a call in ten minutes.” Id. at 29. On October 21, 2002, the FBI negotiations team received a call that had been re-routed from the Ponderosa telephone number. A recorded voice said:

Don't say anything. Just listen. Dearest police, Call me God. Do not release to the press. Five red stars. You have our terms. They are non-negotiable. If you choose Option 1, you will hold a press conference stating to the media that you believe you have caught the sniper like a duck in a noose. Repeat every word exactly as you heard it. If you choose Option 2, be sure to remember we will not deviate. P.S.-Your children are not safe. Id.

The next day at around 6:00 a.m., Conrad Johnson, a bus driver for the Montgomery County Transit Authority, was shot in the chest as he was entering his bus in Aspen Hill, Maryland. Johnson was conscious when the rescue workers arrived, but died at the hospital. The bullet fragments were determined to have come from a Bushmaster rifle. At another blind discovered nearby, a black duffle bag and a brown left-handed glove were found. DNA from hair found in the duffle bag matched that of Muhammad. Another plastic bag that contained self-adhesive stars and a note was left behind.

On October 24, 2002, the FBI captured Muhammad and Malvo at a rest area in Frederick County, Maryland. They were asleep in a Caprice, where police found a loaded .223-caliber Bushmaster rifle behind the rear seat. The DNA on the rifle matched that of both Muhammad and Malvo, although the only fingerprints found on the rifle were those of Malvo. The Caprice had been modified with heavy window tint, a hinged rear seat that provided easy access to the trunk from the passenger compartment, and a hole that had been cut into the trunk lid just above the license plate. Covering the hole was a right-handed brown glove that matched the left-handed glove found near the Johnson shooting, and a rubber seal crossed over the hole. Moreover, the trunk had been spray-painted blue.

Police also found the following items in the Caprice: a global positioning system receiver; a magazine about rifles; an AT & T telephone charge card; ear plugs; maps; plastic sandwich bags; a rifle scope; .223-caliber ammunition; two-way radios; a digital voice recorder; a receipt from a Baton Rouge, Louisiana, grocery store, dated September 27, 2002; an electronic organizer; a plastic bag from Big Lots; a slip of paper containing the Sniper Task Force telephone number; and a list of schools in the Baltimore area. Moreover, police found LaRuffa's laptop computer, onto which Muhammad had loaded “Microsoft Streets and Trips 2002” on September 2, 2002. In the software program, maps had been marked with icons, including some with a skull and crossbones. Icons indicated where Walekar, Lewis-Rivera, Seawell, Brown, Meyers, and Franklin had been shot. There was also a document entitled “Allah8.rtf” that contained portions of the text communicated to police in the extortion demands.

In total, Muhammad was accused of shooting sixteen people and killing ten of them. Muhammad was convicted by a jury in the Circuit Court of Prince William County, Virginia, on November 17, 2003, for the 2002 capital murder of Dean Meyers as more than one murder in three years, in violation of Va.Code Ann. § 18.2-31(8) (2003); for the capital murder of Meyers in the commission of an act of terrorism, in violation of Va.Code Ann. § 18.2-31(13) (2003); for conspiracy to commit capital murder; and for the illegal use of a firearm during the commission of murder. On November 24, 2003, the jury sentenced Muhammad to death for the capital murder and to twenty-three years in prison for the other crimes. The trial court entered final judgment in accordance with the verdict on March 29, 2004.

Muhammad Legal Chronology

October 24, 2002 41 3:19 a.m.: Police arrest Muhammad and Malvo while sleeping at a rest stop in Frederick County, MD.
October 14, 2003 Muhammad’s Trial Begins (Trial held in Virginia Beach for Washington D.C. slayings).
October 17, 2003 Jury Selection completed.
October 21, 2003 Muhammad moves to act as own counsel.
November 17, 2003 Muhammad found guilty on four counts: two counts of capital murder, conspiracy, and use of a firearm.
November 24, 2003 Jury recommends the death penalty for Muhammad.
March 29, 2004 John Allen Muhammad is sentenced to death.

Malvo Legal Chronology

Malvo was charged by the Commonwealth of Virginia for two capital crimes: the murder of FBI analyst Linda Franklin "in the commission of an act of terrorism," and the murder of more than one person in a three-year period. While in jail, he made a recorded confession to Detective Samuel Walker in which he stated that he "intended to kill them all". He pleaded not guilty by reason of insanity to all charges on the grounds that he was under Muhammad's complete control. One of Malvo's psychiatric witnesses testified that Muhammad, a member of Nation of Islam, had indoctrinated him into believing that the proceeds of the extortion attempt would be used to begin a new nation of only pure black young persons somewhere in Canada.

On December 18, 2003, after nearly 14 hours of deliberation, the jury convicted him of both charges. On December 23, a jury recommended a sentence of life in prison without the possibility of parole for the murder of Franklin. On March 10, 2004, a judge formally sentenced him to life in prison without parole.

On October 26, 2004, under a plea bargain to avoid a possible death penalty, Malvo entered an Alford plea to the charges of murdering Kenneth Bridges and attempting to murder Caroline Seawell while Malvo was in Spotsylvania County, Virginia. He also plead guilty to two firearms charges and agreed not to appeal his conviction for the murder of Franklin. He was sentenced to life in prison without parole for murder, plus eight years imprisonment for the weapons charges.

As Malvo was 17 when he committed the crimes, he cannot face the death penalty, but still may be extradited to Alabama, Louisiana, and other states for prosecution.

On June 16, 2006, Malvo told authorities that he and Muhammad were guilty of four additional shootings. The four most recently linked victims were also shot in 2002: a man killed in Los Angeles during a robbery in February or March; a 76-year-old man who survived a shooting on May 18 at a golf course in Clearwater, Florida; a man shot to death while doing yard work in Denton, Texas, May 27; and a 54-year-old man who survived being shot on August 1 during a robbery outside a shopping mall near Baton Rouge, Louisiana.

On October 10, 2006, Malvo pleaded guilty to the six murders he was charged with in Maryland. On November 8, he was sentenced to six consecutive life sentences without the possibility of parole. On October 27, 2006, Malvo told police that he and Muhammad were responsible for the killing of a 60-year-old man on a golf course in Tucson, Arizona. He claimed that they shot Jerry Taylor while he was practicing chip shots on a local golf course. Tucson police had long sought to speak with Malvo about the March 19, 2002 death of Taylor, who died from a single long range gunshot.

Citations:
Muhammad v. Commonwealth, 611 S.E.2d 537 (Va. 2005) (Direct Appeal).
Muhammad v. Warden of Sussex I State Prison, 646 S.E.2d 182 (Va. 2007) (State Habeas).
Muhammad v. Kelly, 575 F.3d 359 (4th Cir. 2009) (Federal Habeas).
Muhammad v. State, 934 A.2d 1059 (Md.App. 2007). (Direct Appeal).

Final/Special Meal:
Chicken and red sauce, and some cakes.

Final Words:
None.

Internet Sources:

PilotOnline.Com

"D.C. sniper Muhammad is executed without last words," by Dena Potter. (AP November 11, 2009)

JARRATT, Va. - Sniper John Allen Muhammad refused to utter any last words as he was executed, taking to the grave answers about why and how he plotted the killings of 10 people that terrorized the Washington, D.C., area for three weeks in October 2002.

The 48-year-old died by injection at 9:11 p.m. Tuesday as relatives of the victims watched from behind glass, separated from the rest of the 27 witnesses at Greensville Correctional Center, south of Richmond.

Muhammad was executed for killing Dean Harold Meyers, who was shot in the head at a Manassas gas station during the spree across Maryland, Virginia and Washington, D.C.

He never testified or explained why he masterminded the shootings with the help of a teenage accomplice. That left questions unanswered about why he methodically hunted people going about their daily chores, why he chose his victims, including a middle schooler on his way to class, and how many victims there were.

Muhammad stepped into Virginia's death chamber and within minutes was lying on a gurney, tapping his left foot, his arms spread wide with a needle dug into each. "Mr. Muhammad, do you have any last words?" the warden asked. Muhammad, looking calm and stoic, said nothing.

Meyers' brother, Bob Meyers, said watching the execution was sobering and "surreal." He said other witnesses expressed a range of feelings, including some who were overcome with emotion. "I would have liked him at some point in the process to take responsibility, to show remorse," Meyers said. "We didn't get any of that tonight."

After the first of the three-drug lethal cocktail was administered, Muhammad blinked repeatedly and took about seven deep breaths. Within a minute, he was motionless.

Nelson Rivera, whose wife, Lori Ann Lewis-Rivera, was gunned down as she vacuumed her van at a Maryland gas station, said that when he watched Muhammad's chest moving for the last time, he was glad. "I feel better. I think I can breathe better," he said. "I'm glad he's gone because he's not going to hurt anyone else."

J. Wyndal Gordon, one of Muhammad's attorneys, described his client in his final hours as fearless and still insisting he was innocent. "He will die with dignity — dignity to the point of defiance," Gordon said before going inside to watch the execution.

The terror ended on Oct. 24, 2002, when police captured Muhammad and Lee Boyd Malvo while they slept at a Maryland rest stop in a car they had outfitted for a shooter to perch in its trunk without being detected.

Malvo, who was 17 when carrying out the attacks, was sentenced to life in prison without parole for killing Linda Franklin, a 47-year-old FBI analyst who was shot as she and her husband loaded supplies at a Home Depot in Falls Church, Va. The men also were suspected of fatal shootings in other states, including Louisiana, Alabama and Arizona.

The U.S. Supreme Court turned down Muhammad's final appeal Monday, and Gov. Timothy M. Kaine denied clemency Tuesday.

Muhammad's attorneys had asked Kaine to commute his sentence to life in prison because they said Muhammad was severely mentally ill. "I think crimes that are this horrible, you just can't understand them, you can't explain them," said Kaine, a Democrat known for carefully considering death penalty cases.

A small group of death penalty opponents gathered on a grassy area near the prison and had a sign reading, "We remember the victims, but not with more killing."

Muhammad was born John Allen Williams and changed his name after converting to Islam. He had been in and out of the military since he graduated from high school in Louisiana and entered the National Guard. He joined the Army in 1985. He did not take special sniper training but earned an expert rating in the M-16 rifle — the military cousin of the .223-caliber Bushmaster rifle used in the D.C.-area shootings.

The motive for the attacks remains murky. Malvo said Muhammad wanted to extort $10 million from the government to set up a camp in Canada where homeless children would be trained as terrorists. Muhammad's ex-wife said she believes they were a smoke screen for his plan to kill her and regain custody of their three children.

Sonia Hollingsworth-Wills, the mother of Conrad Johnson, the last man slain that October, sat in the back seat of a car outside the prison before the execution, which she chose not to witness. But she said she wanted to be there and was counting the minutes until Muhammad's death. "It was the most horrifying day of my life," she said. "I'll never get complete closure but at least I can put this behind me."

Cheryll Witz, who's father, Jerry Taylor, was fatally shot on a Tucson, Ariz., golf course in March 2002, said she was unhappy that Muhammad didn't say anything before he died. But she said his execution begins a new chapter in her life. "I've waited seven long years for this," she said. "My life is totally beginning now. I have all my closure, and my justice and my peace."

Richmond Times-Dispatch

"Sniper John Muhammad executed," Frank Green. (November 11, 2009)

JARRATT — John Allen Muhammad, 48, the leader of a two-man shooting team that kept the region in fear through much of October 2002, was pronounced dead at 9:11 p.m. in Virginia’s death house at Greensville Correctional Center.

Muhammad was sentenced to die for the Oct. 9, 2002, slaying of Dean Harold Meyers, 53, a civil engineer shot in the head at a Prince William County gas station where he had stopped on his way home from work. Given the chance to make a last statement, Muhammad stared stoically at the ceiling and did not move a muscle. No spiritual adviser was present. “He did not even look at us or acknowledge us,” said Larry Traylor, spokesman for the Virginia Department of Corrections.

At 8:58 p.m., Muhammad was led into the execution chamber. He was clean-shaven, dressed in blue denim prison clothing, an execution-team member at each side. He appeared to stumble a bit, looking down and then toward the gurney. He was quickly led to the gurney, and his arms, legs and torso were secured with leather and nylon straps.

At 9 p.m., the team members stepped back from the gurney and a curtain was drawn, blocking the witnesses’ view as IV lines were inserted in Muhammad’s arms and the leads to a heart monitor were affixed to his chest. The curtains were reopened at 9:06 p.m., and Muhammad was asked whether he wanted to make a last statement. At 9:07 p.m., the first of three chemicals used to execute him appeared to be moving through the IV lines. He took several deep breaths, which grew shallower; by 9:08 p.m., his breathing appeared to have stopped. There were no complications during the execution, Traylor said.

Prince William County Commonwealth’s Attorney Paul Ebert was among the more than two dozen witnesses. Speaking to the media afterward, he said he found the execution somewhat anticlimactic, and he noted that Muhammad died much more peacefully than some of his victims.

What follows is coverage of Muhammad’s final day:

Gov. Timothy M. Kaine has declined to intervene and stop tonight’s scheduled execution of John Allen Muhammad. “Having carefully reviewed the petition for clemency and judicial opinions regarding this case, I find no compelling reason to set aside the sentence that was recommended by the jury and then imposed and affirmed by the courts,“ said Kaine in a prepared statement

Muhammad, 48, was sentenced to die for the Oct. 9, 2002, slaying of Dean Harold Meyers, 53, who was shot at a Manassas-area gasoline station, one of 10 people killed and three wounded by Muhammad and his accomplice, Lee Boyd Malvo. Malvo, 17 at the time of the shootings, escaped a death sentence and is serving life without parole. The execution by injection is set for 9 p.m. at the Greensville Correctional Center near Jarratt.

Though there were 13 “sniper” victims in Virginia, Maryland and Washington, the two are believed also responsible for slayings in other states.

An undisclosed number of family members of the victims will witness the execution. According to media accounts, some area traveling from as far as Idaho and Alabama.

Jonathan Sheldon, one of Muhammad’s lawyers, noted that the U.S. Supreme Court and Kaine turned down his client. “We respect their decisions and will make no more legal efforts to stop this process from going forward,“ he said.

Echoing a comment he made yesterday, Sheldon said, “In its effort to race John Allen Muhammad to his death before his appeals could be pursued, the state of Virginia will execute a severely mentally ill man who also suffered from Gulf War Syndrome the day before Veterans Day.“

Larry Traylor, spokesman for the Virginia Department of Corrections, said that at about 2:30 p.m. Muhammad was meeting with immediate family members and that he does not have a spiritual adviser. Muhammad’s attorneys are planning to meet with him later this afternoon, said Traylor.

Washington Post

"Muhammad executed for sniper killing; No final words in last minutes; 10 were slain in Oct. 2002 rampage," by Josh White and Maria Glod. (Wednesday, November 11, 2009)

JARRATT, Va. -- John Allen Muhammad, the sniper who kept the Washington region paralyzed by fear for three weeks as he and a young accomplice gunned down people at random, was executed Tuesday night by lethal injection.

Muhammad, a man who directed what many law enforcement officials consider one of the worst outbursts of crime in the nation's history, died in Virginia's death chamber while relatives of his victims looked on.

Unlike his victims, Muhammad knew when and how he was going to die. He and Jamaican immigrant Lee Boyd Malvo, then 17, killed 10 people in the Washington area during a terrifying rampage in October 2002; they also have been linked to shootings in several other states.

Virginia authorities escorted Muhammad, in denim and flip-flops, into a small room at the Greensville Correctional Center and strapped him to a cross-shaped table. He was then injected with a series of lethal drugs beginning at 9:06 p.m. and he was pronounced dead at 9:11 p.m. Although he maintained his innocence to the very end, Muhammad, 48, ignored a request to make a final statement.

Larry Traylor, a spokesman for the Virginia Department of Corrections, said Tuesday night that Muhammad requested a last meal but asked that details not be made public. Muhammad also declined to meet with a spiritual adviser, but he did spend time with immediate family members in his last few hours.

Muhammad showed no emotion in the death chamber. When the curtain opened, his head was tilted to the right, and his eyes were closed. Asked whether he wanted to say anything, he did not respond. "It's over. The whole long, sad process has ended," said Bob Meyers, whose brother, Dean H. Meyers, 53, was gunned down Oct. 9 at a Prince William County gas station. "There are no winners here. We are not celebrating. It was a sad day for everyone."

Bob Meyers and his wife, Lori, witnessed the execution along with about 20 other relatives of victims. He said the mood was somber as they watched Muhammad's final breaths. "There is a certain bit of closure, but you never get full closure," Meyers said. "I think it was justice."

Muhammad's attorney, Jon Sheldon, who met with the sniper Tuesday and also witnessed the execution, said Muhammad did not want to take part in the rituals of the death penalty. "He had no interest in those things," Sheldon said, explaining why Muhammad did not speak and declined to make public his final meal.

Sheldon said Muhammad visited with one of his sons and remained convinced that the prosecution was a racist plot against him. But the lawyers steered conversation to other topics. Using a single .223-caliber sniper rifle and a modified Chevrolet sedan that authorities have called "a killing machine," Muhammad and Malvo injected fear into the mundane tasks their victims were performing as they were hit: pumping gas, shopping, walking to school, mowing lawns, going to a restaurant. Malvo is serving a life sentence without parole.

The killings began with no explanation. Then the snipers left cryptic notes and phone messages demanding $10 million, just as millions of Washington area residents were distracted by white vans and other mistaken clues that authorities were chasing. The shootings led Washingtonians to change their daily rhythms. People zigzagged through parking lots and instructed their children to duck down in cars while at gas stations. Schools canceled outdoor recess and football games. The shootings were so frightening because they were so random.

In the end, Muhammad and Malvo were tracked down because of a fingerprint left at an Alabama shooting referred to in one of the notes the snipers left behind. Investigators put that together with Muhammad's purchase of the dark blue Chevy in New Jersey, a stolen Bushmaster rifle from Washington state, and an alert truck driver who noticed the Caprice at a highway rest stop in Maryland.

Despite scores of witnesses and hundreds of pieces of evidence -- the sum of which pointed directly at Muhammad and Malvo and led to capital murder convictions -- law enforcement officials have not pinned down a solid motive for the shootings and cannot say for sure who specifically fired the fatal shots.

Muhammad's ex-wife, who lived with his children in the Maryland suburbs, where many of the shootings occurred, has speculated that he did it to frighten or even kill her.

Prosecutors relied on untested Virginia terrorism laws that allowed them to seek convictions even if they couldn't prove which of the two suspects fired the gun.

In the 2003 trial in Virginia Beach, Muhammad represented himself for the first two days, making rambling but cogent points about the fact that no one saw him shoot a single bullet. His attorneys later took over, but jurors ultimately convicted him and sentenced him to death.

Muhammad was put to death for a single killing: the Oct. 9, 2002, sniper slaying of Dean H. Meyers of Gaithersburg, who was shot shortly after 8 p.m. while he pumped gas into his Mazda at a Sunoco station outside Manassas.

Federal authorities, who could have allowed Muhammad to be tried in any of the jurisdictions that saw a sniper slaying, chose the Meyers case because Prince William Commonwealth's Attorney Paul B. Ebert had a stellar record in capital cases -- he had sent a dozen people to Virginia's death row -- and Virginia was known for its speedy appeals process.

The decision paid off. Just six years after Muhammad's conviction, he was put to death, having exhausted every legal option. The U.S. Supreme Court denied his final request for a stay Monday, and Virginia Gov. Timothy M. Kaine (D) rejected his clemency request Tuesday.

Ebert, who had never witnessed an execution before Tuesday night, chose to go to Muhammad's. Rick Conway, one of the Prince William prosecutors who secured the conviction against Muhammad and one of the witnesses to his execution, said it was a "great relief" to see Muhammad die after all the efforts to catch him, try him and punish him. "Justice has been served," Conway said. "There is definitely a feeling of finality to this. . . . John Allen Muhammad cannot victimize anyone else."

Muhammad's appellate attorneys had long argued that their client was mentally ill and that he was incompetent to represent himself and perhaps even to stand trial. They decried Virginia's haste in executing him.

After Muhammad was dead, Sheldon read a statement from him and Muhammad's family. "We deeply sympathize with the families and loved ones who have to relive the pain and loss of those terrible days," he said. "To all those families and the countless citizens across the country who bore witness, and continue to do so, to those tragic events, we renew our condolences and offer our prayers for a better future."

Sheldon also expressed condolences to Muhammad's family, saying that "with humility and self-consciousness, today [they] lost a father and member of their family."

But Nelson Rivera, whose wife, Lori Lewis Rivera, was shot at a Montgomery County gas station as she vacuumed her boss's car, had a different view. "I'm happy he's dead," Rivera said. "This is not going to bring Lori back, but I don't have to think about him anymore. I can breathe better."

South Maryland Online

"John Allen Muhammad Dies in Virginia Execution Chamber," by Christopher M. Matthews and James B. Hale. (November 12, 2009)

JARRATT, Va. (Nov. 12, 2009) - John Allen Muhammad, one of the Beltway snipers, was executed Tuesday evening, ending the life of a man who unleashed a three week reign of terror on the Washington metro area in the fall of 2002.

Muhammad, 48, was pronounced dead at 9:11 p.m., killed by lethal injection at Virginia's Greensville Correctional Center in Jarratt. Relatives of his victims, his attorneys, members of the media and official state witnesses watched as Muhammad's sentence was fulfilled. "I feel closure, I feel peaceful," said Paul Ebert, the Virginia prosecutor who successfully tried Muhammad. "I think the families feel closure."

Muhammad was sentenced to death nearly six years ago by a Virginia jury for the murder of Dean Harold Meyers. He shot and killed Meyers at a gas station near Manassas, part of a 22-day shooting spree that left 10 people dead and three injured. The shootings came on the heels of the terrorist attacks of Sept. 11, 2001, and threw the Washington area into a state of utter fear.

Muhammad's accomplice, Lee Boyd Malvo, is serving three life sentences at Red Onion State Prison in Virginia. In accordance with a Supreme Court ruling, Malvo was ineligible for the death penalty because he was 17 at the time of his sentencing.

At 9:14 p.m., Virginia Department of Corrections Communications Director Larry Traylor announced Muhammad's fate to the media horde gathered outside the prison's entrance. More than 60 members of the news media stood in the on and off drizzle awaiting word.

Traylor said the execution was without complication and that Muhammad refused to say any last words. "I never heard him utter a word or say anything at all," he said. "He was emotionless."

According to media witness Jon Burkett, of WTVR-TV in Richmond, Muhammad "staggered" into the execution chamber at 8:58 p.m. and was strapped to a table. He was then administered three chemicals behind closed curtains which rendered him unconscious, then stopped his breathing, and finally his heart. The curtains were pulled back at 9:06 p.m., at which point Muhammad began to twitch and blink. By 9:08 p.m. he was motionless, Burkett said.

Outside the perimeter of the Greensville facility, the scene was subdued in an area designated for protesters. Roughly 30 protesters, victims' relatives, and onlookers sat in their cars trying to avoid the rain.

The parents and friends of Conrad Johnson, an alleged victim of Muhammad, waited for Muhammad's death in the area designated for protesters. Milton Perry, Johnson's close friend, said the prison only permitted two members per family to watch the execution.

Sonia Hollingsworth-Wills and Tyrone Wills, Johnson's parents, said the evening made them nervous. "It's been a long time coming," said Hollingsworth-Wills. "After tonight it will be a relief." Hollingsworth-Wills said the execution would not bring complete closure, but it would help. "I can put that part of my life behind me -- I will never forget my son," she said. "This will not bring my son back, but I am the voice of Conrad and I just have to be here for that."

Earlier in the day, Virginia Gov. Timothy M. Kaine, a Democrat, announced that he would not grant Muhammad's appeal for clemency. Traylor said the director of the prison was on the phone until the last moment waiting for a call from Kaine in case he changed his mind. That call never came. "Having carefully reviewed the petition for clemency and judicial opinions regarding this case, I find no compelling reason to set aside the sentence that was recommended by the jury and then imposed and affirmed by the courts," Kaine said in a written statement earlier in the day. "Accordingly, I decline to intervene."

Despite his personal opposition to the death penalty, Kaine has only granted clemency once since taking office in 2006. Nine inmates have been executed during Kaine's tenure.

On Monday, the Supreme Court refused to hear Muhammad's lawyers' final petition for a stay.

Muhammad became the 104th inmate to be executed in Virginia since the death penalty was reinstated in 1976. Virginia is second only to Texas nationally in terms of the number of inmates executed since reinstatement.

Muhammad's execution drew victims' families from across the country to Virginia. According to Traylor, the prison had to turn away some of the family members because there was not enough room to accommodate all of them. "There (were) many, many families that we don't have the space for," he said.

After his execution Muhammad's body was rushed to a medical examiner in Richmond. According to one of Muhammad's attorneys, J. Wyndall Gordon, the state will keep Muhammad's body for two days after the execution in order to verify his death. Gordon said Muhammad made light of this during one of his conversations with him earlier in the day. "He said 'they'll probably put the handcuffs on me after I'm dead to make sure I don't run away,'" said Gordon.

Gordon, who served as Muhammad's standby attorney in the Montgomery County case in which Muhammad represented himself, said his client remained "dignified" to the end. "His mood was the same, you would not have known that his death was impending just by talking to him," he said.

Gordon also said Muhammad continued to maintain his innocence. "That's based on the evidence, or lack thereof," Gordon said.

According to Gordon, Muhammad's attorneys in the Virginia case were not given more than 30,000 pieces of evidence from the prosecution. In the Maryland case, Gordon maintained the jury was unavoidably biased and Muhammad was tried in "the court of public opinion."

Another of Muhammad's lawyers, Jonathon Sheldon, simply said that Muhammad's family and his lawyers sympathize with victims' families. "We renew our condolences and we offer our prayers for a better future," he said.

USA Today

"D.C. sniper executed in Virginia," by Kevin Johnson. November 11, 2009)

JARRATT, Va. — John Muhammad was executed Tuesday, seven years after carrying out sniper attacks that terrorized the nation's capital for weeks and left 10 people dead. Muhammad, 48, died in five minutes at 9:11 p.m. from a lethal injection at the Greensville Correctional Center. He said nothing as relatives of his victims looked on behind mirrored glass.

One of those in attendance was Milton Perry, a co-worker of bus driver Conrad Johnson, 35, who was shot in the chest at a bus stop in Maryland. "I'm here because Conrad was the real deal," he said.

A Gulf War veteran and Muslim convert, Muhammad never revealed why he stalked and shot people getting gas or shopping at stores. His accomplice, Lee Malvo, 24, said Muhammad hoped to extort $10 million from the government to set up a camp where children would be trained as terrorists.

The death penalty was ruled out for Malvo, who was 17 at the time of the murders and committed some of them, after the U.S. Supreme Court decided in 2005 that juvenile offenders cannot be executed.

For three weeks in October 2002, Muhammad and Malvo created panic in Washington and its suburbs. Many fretted that the shootings were an al-Qaeda plot, coming as they did so close to the one-year anniversary of the Sept. 11 terror attacks. People avoided going outside and avoided self-serve gas stations.

Police got a break when they found Malvo's fingerprint at one of the shooting scenes and learned he was with Muhammad, and that Muhammad owned a blue Chevrolet Caprice. A truck driver spotted the car Oct. 22 at a highway rest stop in Maryland and police arrested the sleeping killers inside. The car had been modified so someone could shoot from inside the trunk.

Muhammad and Malvo were convicted of six Maryland murders, for which they received life terms. In Virginia, a jury in 2003 sentenced Muhammad to death for the murder of Dean Harold Meyers, 53, killed while pumping gas at a Sunoco station in Manassas. Defense lawyers argued that Muhammad was not mentally competent to stand trial. Courts disagreed.

Muhammad, divorced with five children, spent his final hours meeting with members of his family. He ate a last meal of chicken with red sauce. His lawyer, Jon Sheldon, said that in the hours before his death Muhammad remained "obsessed in his belief that the government was conspiring against him because of his race."

ProDeathPenalty.Com

Lee Boyd Malvo committed his first killing at John Allen Muhammad's bidding just 10 weeks after he ran away from his mother. Malvo confessed to the Feb. 16, 2002, slaying of Keenya Cook in Tacoma, saying he walked up to her house and shot her in the face at point-blank range, while her baby slept nearby. The bullet hit just below Keenya's left eye and lodged at the base of her skull.

A month later, the pair had moved to Tuscon Arizona. Jerry Ray Taylor, 60, a salesman for a frozen-foods distributor, was an avid golfer who so loved the game that he made his own clubs. At lunchtime on March 19, Taylor pulled his silver Nissan pickup into the parking lot of the Fred Enke Golf Course, a mile or so from Newell's house. About a half-hour later, while Taylor was chipping balls alone in a practice area, a gunshot sounded in the distance. The bullet hit Taylor in the back, killing him on the spot. Two golfers discovered the body that afternoon; it had been dragged a short distance and partially hidden in a tangle of scrub brush. Taylor's wallet was found nearby, cash and credit cards inside. The slug that tore through his heart -- almost certainly from a high-powered rifle, police said -- hasn't been recovered and most likely shattered into minuscule fragments. There were no witnesses.

Paul J. LaRuffa was a restaurateur in Clinton, Maryland. At the end of the day on September 5, 2002, LaRuffa closed his restaurant and proceeded to take his laptop computer and $3500 in cash and credit receipts to his car. After he sat behind the steering wheel, he saw a figure to his left and a flash of light, then heard gunshots. LaRuffa was shot six times, but survived. An employee who left the restaurant with LaRuffa witnessed the shooting and called 911. He testified that he saw a "kid" run up to LaRuffa’s car, fire into it, and take the briefcase and laptop. The briefcase and empty deposit bags were found six weeks later in a wooded area approximately a mile from the shooting. The DNA from clothing found nearby was consistent with that of Lee Boyd Malvo.

On September 15, 2002, there was a second shooting in Clinton, Maryland: Muhammad Rashid was locking the front door of the Three Roads Liquor Store from the outside when he heard gunshots behind him. A young man then rushed him and shot him in the stomach. Rashid testified that the young man was Malvo. Almost a week later, on September 21, 2002, Claudine Parker and Kellie Adams, 24, were shot after closing the Zelda Road ABC Liquor Store in Montgomery, Alabama. Claudine Parker, a Sunday school teacher and civil rights champion, died as a result of her gunshot wound through the back—the bullet transected her spinal cord and passed through her lung. Adams was shot through the neck, and the bullet exited through her chin, breaking her jaw in half, shattering her face and teeth, paralyzing her left vocal cord, and severing nerves in her left shoulder. Yet, she survived. Adams said she never lost consciousness after being shot and show a slender black man standing over her. Bullets recovered from the shooting were eventually identified as coming from a Bushmaster high-powered rifle. While the rifle was being fired, Malvo was seen approaching Parker and Adams. A police car passed by the scene immediately after the shooting, and the officers observed Malvo going through the women’s purses. The officers gave chase, but Malvo escaped. In the process, however, he dropped a gun catalog. Malvo’s fingerprints were found on the catalog, and a .22-caliber, stainless-steel revolver was found in the stairwell of an apartment building that Malvo traversed. The revolver was the same as the one used to shoot LaRuffa and Rashid.

Two days later, on September 23, 2002, the manager of a Baton Rouge, Louisiana, Beauty Depot store, Hong Im Ballenger, was walking to her car after closing the store for the evening when she was shot once in the head. The bullet entered the back of her head and exited through her jawbone. She died as a result of the wound. The bullet was determined to have come from the Bushmaster rifle found on Muhammad during his arrest. Witnesses saw Malvo flee from the scene with Ballenger’s purse.

The sixth and seventh shootings occurred in Silver Spring, Maryland, on October 3, 2002. At approximately 8:15 a.m., Premkumar A. Walekar was shot while fueling his taxicab. The bullet went through his left arm and entered his chest, where it fatally damaged his heart. At approximately 8:30 a.m., Sarah Ramos was killed while sitting on a bench in front of the Crisp & Juicy Restaurant in the Leisure World Shopping Center. The bullet entered through the front of her head and exited through her spinal cord at the top of the neck. Both bullets were identified as having come from a Bushmaster rifle, and an eyewitness identified Muhammad’s Chevrolet Caprice at the scene of the second shooting.

On October 3, 2002, at approximately 10:00 a.m., Lori Lewis-Rivera was shot in the back while vacuuming her car at a Shell gas station in Kensington, Maryland. The bullet was identified as coming from a Bushmaster rifle. An eyewitness said that he saw a Chevrolet Caprice in the area approximately twenty minutes before the shooting. At approximately 7:00 p.m., a police officer stopped Muhammad for running two stop signs. The officer gave Muhammad a verbal warning and released him.

Later that night, at approximately 9:15 p.m., Pascal Charlot was shot in the chest as he crossed the intersection of Georgia Avenue and Kalmia Road in the District of Columbia. Charlot’s shooting happened about thirty blocks from where Muhammad was stopped. The bullet fragments from both the Lewis-Rivera and the Charlot shootings were identified as coming from a Bushmaster rifle.

The next day, October 4, 2002, Caroline Seawell was putting bags in her minivan outside of a Michael’s craft store in Fredericksburg, Virginia, when she was shot once in the back. The bullet damaged her liver and exited through her right breast, but she survived the attack. An eyewitness testified to seeing a Caprice in the parking lot at the time of the shooting, and ballistics tests determined the bullet fragments came from a Bushmaster rifle.

On October 6, 2002, Tanya Brown was taking Iran Brown to Tasker Middle School in Bowie, Maryland. As Iran was walking on the sidewalk to the school, he was shot once in the chest. Tanya drove Iran to a health care center where surgeons were able to save his life despite lung damage, a large hole in his diaphragm, damage to the left lobe of his liver, and lacerations to his stomach, pancreas, and spleen. Two eyewitnesses testified that they saw a Caprice in the vicinity of the school the day before and the morning of the shooting. One eyewitness positively identified both Muhammad and Malvo in the Caprice the morning of the shooting. The police searched the surrounding area and found a ballpoint pen and a shell casing in the woods near the school. The area had been pressed down like a blind used to conceal hunters. The tissue samples from the pen matched Muhammad’s DNA, and the shell casing and bullet fragments were determined to have come from a Bushmaster rifle. The Brown shooting was also the first time that police discovered communications from the shooters. The tarot card for death was found, and on it was written, "Call me God." On the back, someone had written, "For you, Mr. Police. Code: Call me God. Do not release to the Press."

Three days later, on October 9, 2002, Dean Meyers was fueling his car at a Sunoco station in Manassas, Virginia, when he was shot in the head by a single bullet. The bullet was later determined to have come from a Bushmaster rifle. An eyewitness testified that she saw Muhammad and Malvo in the area approximately one hour prior. The police actually interviewed Muhammad in a parking lot across the street immediately after the shooting, and they later found a map with Muhammad’s fingerprints in the parking lot. On October 11, 2002, Kenneth Bridges was fired upon at an Exxon gas station in Massaponax, Virginia. He was shot once in the chest by a bullet identified as having come from the Bushmaster rifle. Two eyewitnesses testified that they saw a Caprice at or near the Exxon that morning.

The fourteenth shooting occurred on October 14, 2002, in Falls Church, Virginia. Linda Franklin and her husband were loading their car outside of a Home Depot when she was shot in the head by a single bullet and killed. Ballistics experts determined that the bullet was from a Bushmaster rifle.

The next day, October 15, a Rockville, Maryland, dispatcher received the following telephone call: "Don’t say anything, just listen, we’re the people who are causing the killings in your area. Look on the tarot card, it says, ‘call me God, do not release to press.’ We’ve called you three times before trying to set up negotiations. We’ve gotten no response. People have died." The caller hung up before the dispatcher could transfer the call to the Sniper Task Force.

Three days later, on October 18, Officer Derek Baliles of the Montgomery County, Maryland, Police received a telephone call. The caller told Baliles to "shut up" and said that he knew who was doing the shootings, but wanted the police to verify some information before he said anything further. The caller asked questions about the Parker and Adams shootings in Alabama and hung up again. When the caller called again, Baliles verified the shootings. The caller stated that he needed to find more coins and a telephone without surveillance, then hung up. The same day, William Sullivan, a priest in Ashland, Virginia, received a telephone call from two people. The first male voice told him that someone else wanted to speak to him. The second male voice said that "the lady didn’t have to die," and "it was at the Home Depot." The caller then told him about the shooting in Alabama and said, "Mr. Policeman, I am God. Do not tell the press." The caller concluded by telling Sullivan to relay the information to the police.

The next day, October 19, 2002, Jeffery Hopper and his wife were leaving a restaurant in Ashland, Virginia, when he was shot in the abdomen. Hopper survived, but his injuries required five surgeries to repair his pancreas, stomach, kidneys, liver, diaphragm, and intestines. In the woods near the crime scene, police discovered another blind similar to the one at the Brown shooting. They also found a shell casing, a candy wrapper, and a plastic sandwich bag that was attached with a thumbtack to a tree at eye level and was decorated with Halloween characters and self-adhesive stars. The shell casing and bullets were determined to have come from a Bushmaster rifle. The candy wrapper contained Muhammad’s and Malvo’s DNA. The sandwich bag contained a handwritten message: For you Mr. Police. "Call me God." Do not release to the Press. We have tried to contact you to start negotiation . . . These people took our call for a Hoax or Joke, so your failure to respond has cost you five lives. If stopping the killing is more important than catching us now, then you will accept our demand which are non-negotiable. (i) You will place ten million dollar in Bank of america account . . . We will have unlimited withdrawl at any atm worldwide. You will activate the bank account, credit card, and pin number. We will contact you at Ponderosa Buffet, Ashland, Virginia, tel. # . . . 6:00 am Sunday Morning. You have until 9:00 a.m. Monday morning to complete transaction. "Try to catch us withdrawing at least you will have less body bags." If trying to catch us now more important then prepare you body bags. If we give you our word that is what takes place. "Word is Bond." P.S. Your children are not safe anywhere at anytime. However, the note was not discovered until after the deadline had passed. Surveillance videotapes from that day identified Muhammad at a Big Lots store near the shooting.

The day after Hopper was shot, the FBI Sniper Tip Line received a call from a male who stated, "Don’t talk. Just listen. Call me God. I left a message for you at the Ponderosa. I am trying to reach you at the Ponderosa. Be there to take a call in ten minutes." On October 21, 2002, the FBI negotiations team received a call that had been re-routed from the Ponderosa telephone number. A recorded voice said: Don’t say anything. Just listen. Dearest police, Call me God. Do not release to the press. Five red stars. You have our terms. They are non-negotiable. If you choose Option 1, you will hold a press conference stating to the media that you believe you have caught the sniper like a duck in a noose. Repeat every word exactly as you heard it. If you choose Option 2, be sure to remember we will not deviate. P.S. – Your children are not safe. The next day at around 6:00 a.m., Conrad Johnson, a bus driver for the Montgomery County Transit Authority, was shot in the chest as he was entering his bus in Aspen Hill, Maryland. Johnson was conscious when the rescue workers arrived, but died at the hospital. The bullet fragments were determined to have come from a Bushmaster rifle. At another blind discovered nearby, a black duffle bag and a brown left-handed glove were found. DNA from hair found in the duffle bag matched that of Muhammad. Another plastic bag that contained self-adhesive stars and a note was left behind.

On October 24, 2002, the FBI captured Muhammad and Malvo at a rest area in Frederick County, Maryland. They were asleep in a Caprice, where police found a loaded .223- caliber Bushmaster rifle behind the rear seat. The DNA on the rifle matched that of both Muhammad and Malvo, although the only fingerprints found on the rifle were those of Malvo. The Caprice had been modified with heavy window tint, a hinged rear seat that provided easy access to the trunk from the passenger compartment, and a hole that had been cut into the trunk lid just above the license plate. Covering the hole was a right-handed brown glove that matched the left-handed glove found near the Johnson shooting, and a rubber seal crossed over the hole. Moreover, the trunk had been spray-painted blue. Police also found the following items in the Caprice: a global positioning system receiver; a magazine about rifles; an AT&T telephone charge card; ear plugs; maps; plastic sandwich bags; a rifle scope; .223-caliber ammunition; two-way radios; a digital voice recorder; a receipt from a Baton Rouge, Louisiana, grocery store, dated September 27, 2002; an electronic organizer; a plastic bag from Big Lots; a slip of paper containing the Sniper Task Force telephone number; and a list of schools in the Baltimore area. Moreover, police found LaRuffa’s laptop computer, onto which Muhammad had loaded "Microsoft Streets and Trips 2002" on September 2, 2002. In the software program, maps had been marked with icons, including some with a skull and crossbones. Icons indicated where Walekar, Lewis-Rivera, Seawell, Brown, Meyers, and Franklin had been shot. There was also a document entitled "Allah8.rtf" that contained portions of the text communicated to police in the extortion demands.

In total, Muhammad was accused of shooting sixteen people and killing ten of them. Muhammad was convicted by a jury in the Circuit Court of Prince William County, Virginia, on November 17, 2003, for the 2002 capital murder of Dean Meyers as more than one murder in three years; for the capital murder of Meyers in the commission of an act of terrorism; for conspiracy to commit capital murder; and for the illegal use of a firearm during the commission of murder. On November 24, 2003, the jury sentenced Muhammad to death for the capital murder and to twenty-three years in prison for the other crimes.

New York Daily News

"Families of DC sniper victims celebrate Muhammad's execution," by Brian Kates. (November 11th 2009, 10:54 AM)

He was happy to watch the sniper die."I feel better. I think I can breathe better," Nelson Rivera said as he watched the execution of convicted killer John Allen Muhammad. "I'm glad he's gone because he's not going to hurt anyone else."

Rivera's wife Lori Ann Lewis-Rivera, was one of Muhammad's 10 victims in a three-week killing spree in the Washington, D.C., area in October 2002. She was gunned down as she vacuumed her van at a Maryland gas station in 2002.

Muhammad taunted police with written messages and phoned-in threats and demands. He was put to death at the Greenville Correctional Center in Virginia Tuesday night as the victims' families sat behind glass while watching, separated from the rest of the 27 witnesses.

The execution came hours after Virginia Gov. Tim Kaine denied a last-minute clemency request and a day after the Supreme Court declined to intervene in the case. Muhammad was declared dead at 9:11 p.m.

After the execution, Steven Moore, whose sister, FBI analyst Linda Franklin, was one of the victims, said he thought Muhammad's accomplice, Lee Boyd Malvo, should also have been executed. "Well, myself, I wish Malvo was right there beside Muhammad," Moore said. "They both committed the same crimes. No, I don't feel any closure. I mean, it's ... it ... nothing changes."

Victim after victim in the shooting spree was shot down while doing everyday chores - shopping, pumping gas, mowing the lawn. One child was shot while walking into his middle school. The terror ended on Oct. 24, 2002, when police captured Muhammad and Malvo, then 17, while they slept at a Maryland rest stop in a car they had outfitted for a shooter to perch in its trunk without being detected.

Malvo was not executed because he was a minor. He is serving a life sentence without parole.

Moore was angered by what he said were sympathetic media reports about Muhammad's children. "They're talking about Muhammad's children, but Linda left children behind, too," Moore said. "She's got a daughter, Katie, and a son, Thomas, that -- Tommy just got back from his second tour in Iraq in the Army. They're not going to see their mom. So I don't have any sympathy for his family or for his children."

Muhammad was executed for killing Dean Harold Meyers, 53, who was shot in the head at a Manassas gas station during the spree across Maryland, Virginia and Washington, D.C.

Bob Meyers, the victim's brother, said he had forgiven Muhammad. "God calls for me to do that in the Bible and the second thing is related to that." Meyers said on CNN's 'Larry King Live.' "If I don't, it rots me from the inside out. It doesn't really hurt John Muhammad or anybody that I have bitterness against."

"There were no complications," Virginia prison spokesman Larry Traylor said of the execution. "Mr. Muhammad was asked if he wished to make a last statement. He did not acknowledge this or make a last statement whatsoever."

The 48-year-old Muhammad looked calm but twitched, blinked and tapped his left foot as the injections began, witnesses said. He remained defiantly silent. But in a statement read by one of his attorneys, Muhammad maintained his innocence. "He is not remorseful, although he does extend his condolences to the families,"said attorney J. Wyndal Gordon who assisted Muhammad who represented himself at trial.

Muhammad and Malvo also were suspected of fatal shootings in Louisiana, Alabama and Arizona. Their motive remains murky. Malvo said Muhammad wanted to extort $10 million from the government to set up a camp in Canada where homeless children would be trained as terrorists.

Wikipedia: John Allen Muhammad

John Allen Muhammad (December 31, 1960 – November 10, 2009) was a spree killer from the United States. With his younger partner, Lee Boyd Malvo, he carried out the 2002 Beltway sniper attacks, killing at least 10 people. Muhammad and Malvo were arrested in connection with the attacks on October 24, 2002, following tips from alert citizens. Born John Allen Williams, Muhammad joined the Nation of Islam in 1987 and later changed his surname to Muhammad.[1] Drawings by Malvo describe the murders as part of a "jihad" (Arabic for "struggle in the way of God").[2] At Muhammad's trial, the prosecutor claimed that the rampage was part of a plot to kill his ex-wife and regain custody of his children, but the judge ruled that there was insufficient evidence to support this argument.[3]

His trial for one of the murders (the murder of Dean Harold Meyers in Prince William County, Virginia) began in October 2003, and the following month, he was found guilty of capital murder. Four months later he was sentenced to death. While awaiting execution in Virginia, in August 2005, he was extradited to Maryland to face some of the charges there, for which he was convicted of six counts of first-degree murder on May 30, 2006. Upon completion of the trial activity in Maryland, he was returned to Virginia's death row pending an agreement with another state or the District of Columbia seeking to try him. He was not tried on additional charges in other Virginia jurisdictions, and faced potential trials in three other states and the District of Columbia involving other deaths and serious woundings. Some appeals had been made and rejected, but others remained pending.

Muhammad was executed by lethal injection on November 10, 2009, at 9:06 PM EST at Greensville Correctional Center in Jarratt, Virginia, and was pronounced dead at 9:11 PM EST.[4] Muhammad declined to make a final statement.

Early life

Born John Allen Williams in New Orleans, Louisiana, Muhammad enlisted in the Louisiana Army National Guard in 1978 and, after seven years of service, volunteered for active duty in 1985. In 1987 he joined the Nation of Islam.[5] While in the Army, Muhammad was trained as a mechanic, truck driver and specialist metalworker. He qualified with the Army's standard infantry rifle the M16, earning the Expert Rifleman's Badge. This rating is the Army's highest of three levels of marksmanship for a basic soldier. He was discharged from military service following the Gulf War, as a sergeant, in 1994.[1]

As a member of the Nation of Islam, Muhammad helped provide security for the "Million Man March" in 1995, but Nation of Islam leader, Louis Farrakhan has publicly distanced himself and his organization from Muhammad's crimes.[6] Muhammad moved out of the country and spent time with his children in Antigua around 1999, apparently engaging in credit card and immigration document fraud activities. It was during this time that he became close with Lee Boyd Malvo, who later acted as his partner in the killings. John Allen Williams changed his name to John Allen Muhammad in October 2001.

After his arrest, authorities also claimed that Muhammad admitted that he admired and modeled himself after Osama bin Laden and Al Qaeda, and approved of the September 11 attacks. One of Malvo's psychiatric witnesses testified in his trial that Muhammad had indoctrinated him into believing that the proceeds of the extortion attempt would be used to begin a new nation of only young, "pure" black people somewhere in Canada. Muhammad witnessed the Mark Essex shootout live on television when he was 12.

Muhammad was twice divorced; his second wife, Mildred Muhammad, sought and was granted a restraining order. Muhammad was arrested on federal charges of violating the restraining order against him by possessing a weapon. Defense attorneys in the Malvo trial and the prosecution in Muhammad's trial argued that the ultimate goal of the killings was to kill Mildred so he would regain custody of his three children.[7]

Beltway sniper attacks

Police followed a lead in which an anonymous caller (presumably Muhammad) told a priest to tell the police to check out a liquor store robbery-murder that had occurred in Montgomery, Alabama. Investigators responding to that crime scene found one of the suspects had dropped a magazine with his fingerprints on it; these were subsequently identified as belonging to a 17-year-old Jamaican immigrant Lee Boyd Malvo, whose prints were on file with the INS. Malvo was known to associate with Muhammad. They had lived together in Tacoma, Washington for around one year, where Malvo used the alias John Lee Malvo.[citation needed] Muhammad's identification led to the discovery that he had purchased a former police car, a blue Chevrolet Caprice, in New Jersey on September 11, 2002. A lookout broadcast to the public on that vehicle resulted in their arrest when it was spotted parked in a Maryland rest area on Interstate 70.

Beltway sniper attack victims - Listed in chronological order, these are the names of the victims who were murdered or wounded in the Beltway sniper attacks:

James Martin 55 Killed October 2, 2002, 6:04 PM Wheaton, Maryland
James Buchanan 39 Killed October 3, 2002, 7:41 AM Rockville, Maryland
Premkumar Walekar 54 Killed October 3, 2002, 8:12 AM Aspen Hill, Maryland
Sarah Ramos 34 Killed October 3, 2002, 8:37 AM Silver Spring, Maryland
Lori Ann Lewis-Rivera 25 Killed October 3, 2002, 9:58 AM Kensington, Maryland
Pascal Charlot 72 Killed October 3, 2002, 9:20 PM Washington, D.C.
Caroline Seawell 43 Survived October 4, 2002, 2:30 PM Fredericksburg, Virginia
Iran Brown 13 Survived October 7, 2002, 8:09 AM Bowie, Maryland
Dean Harold Meyers 53 Killed October 9, 2002, 8:18 PM Manassas, Virginia
Kenneth Bridges 53 Killed October 11, 2002, 9:40 AM Fredericksburg, Virginia
Linda Franklin 47 Killed October 14, 2002, 9:19 PM Falls Church, Virginia
Jeffrey Hopper 37 Survived October 19, 2002, 8:00 PM Ashland, Virginia
Conrad Johnson 35 Killed October 22, 2002, 5:55 AM Aspen Hill, Maryland

These victims have also been linked to Muhammad and Malvo: Keenya Cook, Jerry Ray Taylor, Paul La Ruffa, Rupinder Oberoi, Muhammad Rahid, Million Woldemariam, Claudine Lee Parker, Kellie Adams, Hong Im Ballenger, Wright Williams, Jr.

Criminal case

Muhammad was captured in Maryland, where most of the attacks and murders took place. Although Maryland sought to bring him to trial, United States attorney general John Ashcroft reassigned[8] the case from the Maryland prosecutor Doug Gansler, a Democrat, to a Republican prosecutor in Virginia, Jerry W. Kilgore. Kilgore was planning to run for governor.[9][10]

In October 2003, Muhammad went on trial for the murder of Dean Meyers at a Prince William County service station near the city of Manassas. The trial had been moved from Prince William County, to Virginia Beach, approximately 200 miles away. Muhammad was granted the right to represent himself in his defense, and dismissed his legal counsel, though he immediately switched back to having legal representation after his opening argument. Muhammad was charged with murder, terrorism, conspiracy and the illegal use of a firearm, and faced a possible death sentence. Prosecutors said the shootings were part of a plot to extort $10 million from local and state governments. The prosecution said that they would make the case for 16 shootings allegedly involving Muhammad. The terrorism charge against Muhammad required prosecutors to prove he committed at least two shootings in a three-year period.

The prosecution called more than 130 witnesses and introduced more than 400 pieces of evidence intended to prove that Muhammad undertook the murders and ordered Malvo to help carry it out. Evidence included a rifle, found in Muhammad's car, that was linked by ballistics tests not only to 8 of the 10 killings in the Washington area but also to 2 others, in Louisiana and Alabama; the car itself, which was modified so that a sniper could shoot from inside the trunk; and a laptop computer, also found in the car, that contained maps with icons pinpointing shooting scenes.

There were also witness accounts that put Muhammad across the street from one shooting and his car near the scene of several others. There was also a recorded phone call to a police hotline in which a man, his voice identified by a detective as Muhammad's, demanded money in exchange for stopping the shootings.

Muhammad's defense asked the court to drop the capital murder charges due to the fact that there was no direct evidence. Malvo's fingerprints were on the Bushmaster rifle found in Muhammad's car, and genetic material from Muhammad himself was also discovered on the rifle, but the defense contended that Muhammad could not be put to death under Virginia's so-called trigger-man law unless he actually pulled the trigger to kill Meyers, and no one testified that they saw him do so.

On November 17, 2003, by verdict of his jury, Muhammad was convicted in Virginia of all four counts in the indictment against him: capital murder for the shooting of Dean H. Meyers; a second charge of capital murder under Virginia's antiterrorism statute, for homicide committed with an intent to terrorize the government or the public at large; conspiracy to commit murder; and the illegal use of a firearm.

In the penalty phase of the trial, the jury after five hours of deliberation over two days unanimously recommended that Muhammad should be sentenced to death. On March 9, 2004, a Virginia judge agreed with the jury's recommendation and sentenced John Allen Muhammad to death.

On April 22, 2005, the Virginia Supreme Court affirmed his death penalty, stating that Muhammad could be sentenced to death because the murder was part of an act of terrorism. The court also rejected an argument by defense lawyers that he could not be sentenced to death because he was not the triggerman in the killings done by Muhammad and his young accomplice Lee Boyd Malvo. Virginia Supreme Court Justice Donald W. Lemons said at the time, "With calculation, extensive planning, premeditation and ruthless disregard for life, Muhammad carried out his cruel scheme of terror."

In May 2005, Maryland and Virginia reached an agreement to allow his extradition to face Maryland charges, but Muhammad was fighting the action legally. He was held at the maximum security Sussex I State Prison near Waverly in Sussex County, Virginia, which houses Virginia's death row inmates. While awaiting execution in Virginia, in August 2005, he was extradited to Montgomery County, Maryland to face charges there.

On May 30, 2006, a Maryland jury found John Allen Muhammad guilty of six counts of murder in Maryland. In return, he was sentenced to six consecutive life terms without possibility of parole on June 1, 2006. Neither Alabama, Arizona, Louisiana, or Washington State moved to try Muhammad, given his death sentence for murder in Virginia. In 2006, Malvo confessed that the pair also killed victims in California, Arizona, and Texas, making 17 victims.

On May 6, 2008, it was revealed that Muhammad asked prosecutors in a letter to help him end legal appeals of his conviction and death sentence "so that you can murder this innocent black man." An appeal filed by Muhammad's defense lawyers in April 2008 cited evidence of brain damage that would render Muhammad incompetent to make legal decisions, and that he should not have been allowed to represent himself at his Virginia trial.[11]

On September 16, 2009, Muhammad's execution date was set for November 10, 2009.[12] On November 9, 2009, Muhammad's death sentence appeal was denied by the US Supreme Court.[13][14] Justice Stevens, joined by Justices Ginsburg and Sotomayor, wrote a separate opinion stating that Virginia's rush to set an execution date "highlights once again the perversity of executing inmates before their appeals process have been fully concluded,"[15] while noting that they concurred with the decision that the appeal ought not be heard.

Civil case

In 2003, Malvo, Muhammad and Chad White were named in a major civil lawsuit by the Legal Action Project of the Brady Center to Prevent Gun Violence on behalf of two of their victims who were seriously wounded and the families of some of those murdered. Although Malvo and Muhammad were each believed to be indigent, codefendants Bull's Eye Shooter Supply and Bushmaster Firearms, Inc. contributed to a landmark $2.5 million out-of-court settlement in late 2004.

Testimony of Lee Boyd Malvo

In John Allen Muhammad's May 2006 trial in Montgomery County, Maryland, Lee Boyd Malvo, who is serving a sentence of life without parole for his role in the shootings, took the stand and confessed to a more detailed version of the pair's plans. Malvo, after extensive psychological counseling, admitted that he was lying at the earlier Virginia trial where he had admitted to being the triggerman for every shooting. Malvo claimed that he had said this in order to protect John Allen Muhammad from the potential death penalty, because it was more difficult to achieve the death penalty for a minor. Malvo said that he wanted to do what little he could for the families of the victims by letting the full story be told. In his two days of testimony, Malvo outlined many very detailed aspects of all the shootings.

Part of his testimony concerned John Allen Muhammad's complete multiphase plan. His plan consisted of three phases in the Washington, D.C. and Baltimore metro areas. Phase One consisted of meticulously planning, mapping, and practicing their locations around the DC area. This way after each shooting they would be able to quickly leave the area on a predetermined path, and move on to the next location. John Allen Muhammad's goal in Phase One was to kill 6 white people a day for 30 days (180 per month). Malvo went on to describe how Phase One did not go as planned due to heavy traffic and the lack of a clear shot and/or getaway at different locations.

Phase Two was meant to be moved up to Baltimore. Malvo described how this phase was close to being implemented, but never was carried out. Phase Two would begin with the killing of a pregnant woman with a shot to the abdomen. The next step would have been to shoot and kill a Baltimore City police officer. Then, at the officer's funeral, they were to detonate several improvised explosive devices complete with shrapnel. These explosives were intended to kill a large number of officers, since many of them would be at a comrade's funeral.

Phase Three was to take place very shortly after, if not during, Phase Two. The third phase was to extort several million dollars from the United States government. This money would be used to finance a larger plan to travel north into Canada, stopping along the way in YMCAs and orphanages recruiting other impressionable young boys with no parents or guidance. John Allen Muhammad thought he could act as their father figure as he did with Lee Boyd Malvo. Once he recruited a large number of young boys and made his way up to Canada, he would begin their training. Malvo described how John Allen Muhammad intended to train the youths with weapons and stealth, as he had been taught. After their training was complete, John Allen Muhammad would send them out across the United States to carry out mass shootings in many different cities, just as he had done in Washington, D.C. and Baltimore.[16][17][18]

Execution

Wikinews has related news: Washington, DC sniper John Allen Muhammad executed by lethal injection

On September 15, 2009, a Virginia judge set a November 10, 2009, execution date for Muhammad.[12] On November 9, 2009, the Supreme Court of the United States refused a last-minute appeal.[13][14] On November 10, hours before Muhammad's scheduled execution, pleas for clemency were denied by Virginia Governor Tim Kaine.[19][20]

Under Virginia law, an inmate is allowed to choose the method by which he or she will be put to death, either lethal injection or the electric chair. Because Muhammad declined to select a method, by law, the method of lethal injection was selected for him. He was offered a selection of a last meal, which he accepted, but refused publication of its contents. However, his former attorney, J. Wyndal Gordon, told the Associated Press that his last meal consisted of chicken with red sauce and "some cakes".[21]

The execution began at 9:00 PM EST at the Greensville Correctional Center in Jarratt, Virginia.[22][23] According to the official statement of the prison spokesperson, the actual lethal injection process started at 9:06 pm EST. He was then pronounced dead at 9:11 PM EST; he declined to make a final statement.[24][25] The family's reaction was not discussed, nor apparently known outside of the family viewing room.[26][27] His family plans to bury Muhammad in his native Louisiana.[28]

New York Times

"Sniper Who Killed 10 Is Executed in Virginia," by Ian Urbina. (November 11, 2009)

WASHINGTON — John A. Muhammad, whose murderous shooting spree in the fall of 2002 left at least 10 dead, was executed at a Virginia state prison on Tuesday night. The execution closed a case that fixated the region ever since local residents were gunned down while doing the most mundane tasks, like shopping or pumping gas.

Mr. Muhammad, 48, was executed at the Greensville Correctional Center. He offered no final words as he entered the death chamber, and Larry Traylor, a prison official, said the process had gone smoothly. Mr. Muhammad retained a calm demeanor throughout, and once he was strapped to a gurney to receive a lethal injection, he closed his eyes, Mr. Taylor said. He was pronounced dead at 9:11 pm.

On Monday, the Supreme Court refused to intervene in the case of Mr. Muhammad, 48, who was sentenced to die for the killing of Dean H. Meyers, an engineer who was shot in the head at a gasoline station in Manassas, Va.

Mr. Meyers was one of 10 people killed in Maryland, Virginia and Washington over three weeks in October 2002. Mr. Muhammad’s accomplice, Lee B. Malvo, who was 17 at the time, was sentenced to life in prison without parole. The two are also suspected of fatal shootings in Alabama, Arizona and Louisiana.

On Tuesday afternoon, Gov. Tim Kaine of Virginia said he would not stay the scheduled execution. “I find no compelling reason to set aside the sentence that was recommended by the jury and then imposed and affirmed by the courts,” Mr. Kaine said in a written statement. “Accordingly, I decline to intervene.”

The random nature of Mr. Muhammad’s shootings left people fearful and led many to remain indoors as much as possible to avoid becoming a target. When the police announced that witnesses had reported having spotted white box trucks near the scenes of the shootings, the public became obsessed with the ubiquitous work vehicles and a sense of panic often beset people sitting at an intersection near such trucks.

After a teenager was shot outside his Maryland school, local officials decided to keep schoolchildren inside at recess and they began drilling on duck-and-cover techniques.

While the Supreme Court did not comment in refusing to hear Mr. Muhammad’s appeal, three justices objected to the relative haste accompanying the execution. Justice John Paul Stevens wrote that he did not disagree with the majority’s decision to decline the case, but he complained that “under our normal practice,” Mr. Muhammad’s petition for the court to take his case would have been discussed at the justices’ conference scheduled for Nov. 24.

But because Virginia scheduled the execution for Tuesday, the judicial process was rushed, Justice Stevens said in a statement joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.

After Mr. Muhammad was sentenced to death in Virginia for shooting Mr. Meyers, Maryland prosecutors arranged to have him tried again for six murders in Montgomery County. At that trial, Mr. Malvo, who is now 24, testified at length. Throughout both trials and a number of subsequent appeals, Mr. Muhammad continued to profess his innocence.

A soldier-turned-auto-mechanic, Mr. Muhammad held a deep grudge against his ex-wife and society. During the Maryland trial, Mr. Malvo testified that the intent of their shooting spree had been to create havoc to cover for Mr. Muhammad’s plans to kidnap his three children. The longer-term goal, Mr. Malvo said, was to extort law enforcement into giving them money to stop the shootings. Mr. Muhammad planned to take the money and move to Canada with Mr. Malvo and his three children, Mr. Malvo said.

In Canada, Mr. Malvo said, Mr. Muhammad planned to create a training ground for 140 young homeless men whom he would send out to wreak similar havoc and to “shut things down” in cities across the United States.

Although Governor Kaine, a Democrat, has said in the past that he is personally opposed to the death penalty, he has allowed a number of executions since he took office in 2006. Under Virginia law, a prisoner is allowed to choose the method of execution — either lethal injection or the electric chair. Mr. Muhammad declined to select a method, so, by law, he was ordered to receive a lethal injection.

PBS Online

Malvo Avoids Death Penalty
In light of Tuesday's Supreme Court's decision overturning the death penalty for juvenile offenders, Prince William County, Virginia, Commonwealth's Attorney Paul Ebert said he will not try Lee Boyd Malvo for the sniper shooting in Manassas, Va. Malvo was 17 at the time of the sniper shootings in 2002 and is already serving two life terms. (3/2/05)

Malvo Gets Second Life Term
Lee Boyd Malvo struck a deal to avoid the death penalty and instead get life in prison without parole for a second of the ten sniper killings in the Washington region. (10/26/04)

Malvo Gets Life Sentence in Va.
Circuit Judge Jane Marum Roush on Wednesday formally sentenced Lee Boyd Malvo to life in prison without parole for his part in the Washington area sniper shootings of 2002. A jury in Virginia had earlier recommended the sentence, which is the minimum punishment allowed for a capital murder conviction. (3/10/04)

Muhammad Sentenced to Death
Circuit Judge LeRoy Millett went with a jury's recommendation Tuesday and sentenced John Allen Muhammad to death for one of ten sniper attacks in the Washington region. Muhammad's execution is scheduled for Oct. 14, although that date will likely be postponed to allow appeals. (3/9/04)

Jury Finds Malvo Guilty of Capital Murder
Update: A jury found Lee Boyd Malvo guilty of capital murder and terrorism in the Washington-area sniper case, which left 10 people dead and terrorized the region. Malvo, who was 17 at the time of the shootings, could face the death penalty. (12/18/03)

Jury Recommends Death for Muhammad in Sniper Attacks
Update: A jury recommended Monday that John Allen Muhammad be executed for his role in the sniper attacks that killed 10 people and terrorized the Washington, D.C., area last fall. (11/24/03)

Terence Smith discusses the sentencing phase of the trial with New York Times national correspondent James Dao. (11/24/03)

Muhammad Convicted in Sniper Case
Update: A Virginia jury convicted Washington-area sniper suspect John Allen Muhammad on two counts of capital murder Monday, which means he could face the death penalty.

RealAudio: Gwen Ifill discusses the case with James Dao of The New York Times. (11/17/03)

Judge Allows Use of Malvo Confession in Trial
Update: A judge in Fairfax County, Va. ruled Tuesday that nearly all of the confession that sniper suspect Lee Boyd Malvo gave to police after his arrest can be used against him during his trial. (5/6/03) Text: The judge's full opinion. (Requires Adobe Acrobat) Virginia Gets Sniper Trial First Update: Attorney General John Ashcroft announces that the sniper shooting suspects will first stand trial in Virginia, where both could get the death penalty. (11/7/02)

Federal Prosecutors Charge Sniper Suspect
Update: Federal prosecutors filed a 20-count criminal complaint against sniper suspect John Allen Muhammad, charging him with discharging a firearm as part of an extortion scheme in the deaths of six people in Maryland and one in Washington, D.C. (10/29/02) Arrest Aftermath

RealAudio: Del Quentin Wilber of The Baltimore Sun and Tom Golden of The New York Times discusses what is known about those suspected in the Washington-area sniper. (10/25/02)

Police Link Suspects' Gun to Bullets From Sniper Attacks
Update: The law enforcement team investigating the shootings in the Washington, D.C. area confirmed late Thursday that a gun found in the car belonging to two men arrested overnight matches the bullets recovered after 11 of the sniper attacks.

Montgomery County Police Chief Charles Moose said the two are being held on unrelated charges, but said they are now considered suspects in the sniper investigation. (10/24/02)

RealAudio: Elaine Shannon of Time Magazine helps connect the dots that led police to the men arrested Thursday morning. (10/24/02)

Reporters from Washington, DC, Alabama and Seattle recap the suspects' arrest and recent developments in the investigation. (10/24/02)

RealAudio: The investigative team's press conference. (10/24/02)

Moose Announces Arrest Warrant for Person of Interest
RealAudio: Montgomery County, Md. Police Chief Charles Moose, the head of the task force investigating the D.C.-area sniper, said late Wednesday that authorities have issued an arrest warrant for a man who "may have information material to our investigation." (10/24/02)

Media's Role in Sniper Investigation
Terence Smith talks with reporters about coverage of the shootings and the search for the killer. (10/23/02)

Tracking Firearms
The rash of shootings in Washington sparks debate over the creation of a national database for ballistic fingerprints -- a technology that records the unique markings that experts say every gun leaves on its bullet casings. (10/18/02)

Military Joins Hunt for Shooter
The U.S. military agrees to use Army spy planes and other surveillance equipment to assist local and federal law enforcement officials in the hunt for the Washington, D.C.-area sniper. (10/16/02)

Fears Rise Amid Sniper Attacks
Examining the psychological effects the D.C.-area shootings are having on residents and the role law enforcement and the media can play in helping the community to cope. (10/15/02)

14. Oct. 22 – Montgomery County, Md.: Conrad Johnson, a 35-year-old bus driver, is shot and killed at about 6 a.m. while standing on the top step of his bus as he was preparing to begin his work day. News Update | NewsHour Report (10/23/02)

13. Oct. 19 – Ashland, Va.: A 37-year-old man is shot and wounded at 8 p.m. at a Ponderosa restaurant in suburban Richmond, located some 80 miles south of Washington, D.C. The man remains in critical, but stable condition. News Update | NewsHour Report (10/21/02)

12. Oct. 14 – Falls Church, Va.: Linda Franklin, a 47-year-old FBI analyst, is shot and killed at 9:15 p.m. in a covered parking garage outside a Home Depot store some 10 miles west of Washington. News Update (10/15/02)

11. Oct. 11 – Spotsylvania County, Va.: Businessman Kenneth H. Bridges, 53, of Philadelphia is fatally shot at 9:30 a.m. at an Exxon gas station at Massaponax, Va. near the city of Fredericksburg and some 50 miles south of Washington, DC News Update (10/12/02)

10. Oct. 9 – Manassas, Va.: Gaithersburg, Md. resident Dean Harold Meyers, 53, a longtime employee at an engineering firm, is killed by a single gunshot at 8:15 p.m. while refilling his car at a Sunoco gas station some 35 miles southwest of Washington. News Update | NewsHour report (10/10/02)

9. Oct. 7 – Bowie, Md.: A 13-year-old boy is shot and critically wounded at 8:09 a.m. after his aunt drops him off for class at Benjamin Tasker Middle School. The boy remains in serious condition. News Update (10/7/02)

8. Oct. 4 – Spotsylvania County, Va.: A 43-year-old woman is shot and wounded at 2:30 p.m. while loading bags into her minivan in the parking lot of a Michaels craft store some 50 miles south of Washington. She survived her wounds.

7. Oct. 3 – Washington, DC: Pascal Charlot, a 72-year-old Haitian immigrant, is fatally shot at 9:15 p.m. on a Northwest Washington street only a block from the Montgomery County line. "The whole neighborhood is shocked," neighbor Karen Archer told The Washington Post. "We just can't believe it."

6. Oct. 3 – Kensington, Md.: Silver Spring, Md. resident Lori Ann Lewis-Rivera, 25, a young mother who worked as a nanny, is shot and killed at 9:58 a.m. while vacuuming out her minivan at a Shell station just a few miles outside Washington. She moved to Washington from Idaho in 1996 and had a 3-year-old daughter.

5. Oct. 3 – Silver Spring, Md.: Thirty-four year-old Sarah Ramos is fatally shot at 8:37 a.m. while reading on a bench near a post office at a shopping center. Ramos immigrated to the U.S. three years ago with her husband and young son and was working as a housecleaner while her husband learned English, The Washington Post reports.

4. Oct. 3 – Rockville, Md.: Premkumar Walekar, a 54-year-old taxi driver, is shot and killed at 8:12 a.m. while refueling at a Mobil gas station. His brother told The New York Times that Walekar and his wife had bought a house in Walekar's hometown of Pune, India and had intended to return there.

3. Oct. 3 – Montgomery County, Md.: Thirty-nine year-old James "Sonny" Buchanan, a resident of Arlington, Va. is gunned down at 7:41 a.m. while mowing the lawn near the Fitzgerald Auto Mall in the White Flint area. An amateur poet, Buchanan grew up in nearby Gaithersburg, Md., worked as a landscaper and volunteered as a mentor for children, The Washington Post reports.

2. Oct. 2 – Wheaton, Md.: James D. Martin, a 55-year-old analyst at the National Oceanic and Atmospheric Administration's Office is shot and killed at 6:04 p.m. while carrying groceries from the Shoppers Food Warehouse store to his car. A resident of Colesville, Md., Martin had become a fixture at Shepherd Elementary School in Washington, where he judged science fairs and helped with student projects, school officials told The New York Times.

1. Oct. 2 – Montgomery Country, Md.: A bullet cracks through a window and damages the lighted number over a cash register at a Michaels craft store in the Aspen Hill area at 5:20 p.m. No one is reported hurt in the shooting.

Virginians for Alternatives to the Death Penalty

Muhammad v. Commonwealth, 269 Va. 451, 611 S.E.2d 537 (Va. 2005) (Direct Appeal).

Background: Defendant was convicted in the Circuit Court, Prince William County, LeRoy F. Millette, J., of two counts of capital murder, conspiracy to commit capital murder, illegal use of a firearm in the commission of murder, and was sentenced to death. Defendant appealed.

Holdings: The Supreme Court, Lemons, J., held that: (1) evidence supported capital murder instruction premised on theory of joint participation; (2) evidence was sufficient to support defendant's conviction for capital murder in the commission of an act of terrorism; (3) theories under which defendant and coperpetrator were contemporaneously prosecuted in separate counties for capital murder were not inconsistent; (4) defendant had no due process right to have aggravating circumstances recited in his capital murder indictments; (5) letters written by defendant to unidentified individual were not exculpatory material to which defendant was entitled; (6) record supported finding that defendant was tried by a fair and impartial jury and that his trial was not in any way tainted by pretrial publicity; and (7) death sentence was not disproportionate. Affirmed.

Kinser, J., concurred and filed a separate opinion.Agee, J., dissented in part, concurred in part, and filed a separate opinion in which Lacy and Koontz, JJ., joined.

LEMONS, Justice.

In these appeals, we consider two capital murder convictions and two death sentences imposed upon John Allen Muhammad (“Muhammad”), along with his convictions for conspiracy to commit capital murder and the illegal use of a firearm in the commission of murder. This prosecution arose from the investigation of a series of sixteen shootings, including ten murders that occurred in Alabama, Louisiana, Maryland, Washington, D.C., and Virginia over a 47-day period from September 5 to October 22, 2002. For the reasons discussed herein, the judgment of the trial court and the sentences of death will be affirmed.

I. Facts and Proceedings Below
A. Facts

On the morning of Wednesday, October 9, 2002, Dean H. Meyers (“Meyers”) was shot and killed while fueling his car at the Sunoco gas station on Sudley Road in Manassas, Virginia. Meyers was shot in the head by a single bullet. The bullet entered behind his left ear, where it fragmented into multiple small pieces. The bullet fragments shattered the temporal bone and the fragments of bullet and bone then traveled through his brain and caused multiple fractures of his skull. This gunshot wound was consistent with injuries from a bullet fired from a high velocity rifle,FN1 and was the cause of Meyers' death. Evidence at trial established that the bullet came from the .223 caliber Bushmaster rifle Muhammad possessed when he was arrested. An eyewitness testified that she saw Muhammad and Lee Boyd Malvo (“Malvo”) in the vicinity of the shooting approximately one hour beforehand. Police interviewed Muhammad immediately after the shooting in a parking lot across the street from where Meyers was shot. In both encounters, Muhammad was driving a Chevrolet Caprice (“Caprice”) in which he was later arrested. Muhammad's fingerprints were on a map police found in the parking lot where Muhammad had been interviewed.

FN1. Throughout the trial, various witnesses and counsel made references to a high velocity rifle, high velocity weapon, and high velocity bullet, cartridge, or load. The technical distinctions between these terms are insignificant to the analysis in this opinion.

Meyers was killed during a 47-day period, from September 5 to October 22, 2002, in which ten others were murdered and six more suffered gunshot wounds as a result of the acts of Muhammad and Malvo in concert. The murder of Meyers was the twelfth of these sixteen shootings.

The first shooting occurred in Clinton, Maryland on September 5, 2002. Paul J. LaRuffa (“LaRuffa”), the owner of Margellina's Restaurant, left the restaurant at closing and proceeded to his car with his briefcase and Sony portable computer. Inside the briefcase were bank deposit bags that contained $3,500 in cash and credit card receipts from that evening. LaRuffa placed the briefcase and laptop on the backseat of his car, and then sat behind the steering wheel. He testified that, almost immediately after he sat down, he saw a figure to his left and a flash of light. He heard gunshots and the driver's side window shattered. When he stepped out of his car, he realized he had been shot. The trauma surgeon who treated him testified that LaRuffa was shot six times: once in the back left side of his neck, three times in the left side of his chest, and twice in his left arm.

An employee who left the restaurant with LaRuffa, Paul B. Hammer (“Hammer”), witnessed the shooting and called “911.” Hammer testified that he saw a “kid” run up to LaRuffa's car, fire shots into it, and then open the rear door and take the briefcase and portable computer. He was unable to provide a detailed description because of lighting conditions, but testified that the shooter was a male in his late teens or early twenties. The briefcase and empty bank deposit bags, along with a pair of pants and a shirt, were found six weeks later in a wooded area about a mile from the shooting. Hair on the clothing yielded DNA that was consistent with Malvo's DNA.

Four days later, on September 9, Muhammad purchased a 1990 Caprice automobile from Christopher M. O'Kupski (“O'Kupski”) in Trenton, New Jersey. O'Kupski testified that before the purchase, Muhammad got into the trunk and lay down. O'Kupski also testified that, when Muhammad purchased it, the Caprice did not have a hole in the trunk or a passageway from the backseat to the trunk; the trunk was not spray-painted blue; and the windows were not tinted.

The second shooting occurred in Clinton, Maryland on September 15, 2002. Muhammad Rashid (“Rashid”) was closing the Three Roads Liquor Store. Rashid testified that he noticed the Caprice outside the store shortly before closing. He testified that he was in the process of locking the front door from the outside when he heard gunshots from behind him. At the same time, a young man with a handgun rushed towards Rashid and shot Rashid in the stomach. At trial, Rashid identified Malvo as the person who shot him. Two bullets were removed from inside the store. The bullets had been shot through the front door and the trajectory of the bullets placed the shooter in a field across the street from the store.

The third and fourth shootings occurred in Montgomery, Alabama on September 21, 2002. Claudine Parker (“Parker”) and Kelly Adams (“Adams”) closed the Zelda Road ABC Liquor Store and walked out. They were shot immediately. Parker died as a result of a single gunshot wound that entered her back, transected her spinal cord, and passed through her lung. Adams was shot once through her neck, but lived. The bullet exited through her chin, breaking her jaw in half, shattering her face and teeth, paralyzing her left vocal cord, and severing major nerves to her left shoulder. Both gunshot wounds were consistent with injuries caused by a high velocity rifle. Testing revealed that the bullet fragments recovered from the Parker shooting were fired from a Bushmaster rifle possessed by Muhammad when he was arrested.

As the rifle shots were fired, a young man, later identified as Malvo, ran up to Parker and Adams. A police car happened to pass the scene immediately after the shots were fired. A police officer observed Malvo with a handgun. He was going through the women's purses. The officer and another eyewitness chased Malvo. Although he escaped, Malvo dropped an “ArmorLite” gun catalogue during the chase. At trial, both the officer and the other eyewitness identified Malvo as the young man with the handgun who fled the scene. Additionally, Malvo's fingerprints were on the “ArmorLite” gun catalogue he dropped during the chase. The handgun Malvo carried that evening, a .22 caliber stainless steel revolver, was found in the stairwell of an apartment building that Malvo ran through during the chase. Forensic tests determined that this .22 caliber revolver was the same gun used to shoot both LaRuffa and Rashid.

The fifth shooting occurred in Baton Rouge, Louisiana on September 23. Hong Im Ballenger (“Ballenger”), the manager of the Beauty Depot store, closed the store for the evening. As she was walking to her car, she was shot once in the head with a bullet fired from a high velocity rifle. Ballenger died as the result of the single shot. The bullet entered the back of her head and exited through her jawbone. The wound caused massive bleeding and compromised her airway. Ballistic tests determined that the bullet fragments recovered from Ballenger were fired from the Bushmaster rifle possessed by Muhammad when he was arrested. An eyewitness saw a young man leave the scene with Ballenger's purse. At trial, this young man was identified as Malvo. Another eyewitness saw Malvo flee the scene with Ballenger's purse and get into the Caprice.

The sixth shooting occurred in Silver Spring, Maryland on October 3, 2002. At approximately 8:15 a.m., Premkumar A. Walekar (“Walekar”) was fueling his taxicab. He was shot once with a bullet from a high velocity rifle. The bullet passed through his left arm and then entered his chest, where it broke two ribs, shredded portions of his lungs, and damaged his heart. A physician, who was fueling her car next to Walekar, attempted CPR but was unsuccessful. Ballistic tests established that bullet fragments recovered from the Walekar shooting were fired from the Bushmaster rifle possessed by Muhammad when he was arrested.

The seventh shooting occurred in Silver Spring, Maryland on October 3, 2002. At approximately 8:30 a.m., Sarah Ramos (“Ramos”) was sitting on a bench in front of the Crisp & Juicy Restaurant in the Leisure World Shopping Center. She was shot once with a bullet from a high velocity rifle. The bullet entered the front of her head and exited through her spinal cord at the top of her neck. An eyewitness identified the Caprice at the scene prior to the shooting. Bullet fragments recovered from the Ramos shooting were fired from the Bushmaster rifle possessed by Muhammad when he was arrested.

The eighth shooting occurred in Kensington, Maryland on October 3, 2002. At approximately 10:00 a.m., Lori Lewis-Rivera (“Lewis-Rivera”) was vacuuming her car at the Shell gas station on the corner of Connecticut Avenue and Knowles Avenue. She was shot once in the back by a bullet from a high velocity rifle as she vacuumed her car. An eyewitness testified that he saw the Caprice in the vicinity of the gas station approximately 20 minutes before the shooting. Bullet fragments recovered from the Lewis-Rivera shooting were fired from the Bushmaster rifle possessed by Muhammad when he was arrested.

The ninth shooting occurred in Washington, D.C. on October 3, 2002. At approximately 7:00 p.m., a police officer stopped Muhammad for “running” two stop signs. The police officer testified that the windows of the Caprice were heavily tinted and that he could not see anyone else in the car. The police officer gave Muhammad a verbal warning and let him go.

At approximately 9:15 p.m. on that day, Paschal Charlot (“Charlot”) was shot in the chest as he crossed the intersection of Georgia Avenue and Kalmia Road. This intersection was about 30 blocks from where the police officer stopped Muhammad. The bullet entered Charlot's chest and shattered his collarbone and three ribs before lacerating his lungs. Charlot died before emergency personnel arrived. Eyewitnesses testified that they saw the Caprice at the scene at the time of the shooting, and that the driver drove away without its headlights on immediately after the shooting. It had been parked in a space on the street with its trunk positioned toward Georgia Avenue. One eyewitness testified that he saw a flash of light from the Caprice at the time the shot was fired. Ballistics tests determined that the bullet fragments recovered from the Charlot shooting were fired from the Bushmaster rifle possessed by Muhammad when he was arrested.

The tenth shooting occurred in Fredericksburg, Virginia on October 4, 2002. Caroline Seawell (“Seawell”) had finished shopping at a Michael's Craft Store, and was putting her bags in her minivan, when she was shot once in the back by a bullet from a high velocity rifle. The bullet severely damaged her liver and exited through her right breast. Seawell survived the shooting. An eyewitness testified that he saw the Caprice in the parking lot at the time of the shooting. Ballistics tests determined that the bullet fragments recovered from the Seawell shooting were fired from the Bushmaster rifle possessed by Muhammad when he was arrested.

The eleventh shooting occurred in Bowie, Maryland on October 6, 2002. Tanya Brown (“Tanya”) took Iran Brown (“Brown”) to Tasker Middle School. As Brown was walking on the sidewalk to the school, he was shot once in the chest by a bullet from a high velocity rifle. Tanya decided not to wait for emergency personnel and drove Brown to a health care center. Brown's lungs were damaged, there was a large hole in his diaphragm, the left lobe of his liver was damaged, and his stomach, pancreas, and spleen were lacerated by bullet fragments. Surgeons were able to save Brown's life and he spent eight weeks recovering in the hospital.

Two eyewitnesses testified that they saw the Caprice in the vicinity of Tasker Middle School the day before the shooting and the morning of the shooting. One of these eyewitnesses positively identified both Muhammad and Malvo in the Caprice the morning of the shooting. They were seen in the Caprice which was parked at an intersection with a line of sight to the school. Following the shooting, police searched the surrounding area and found a ballpoint pen and a shell casing in the woods next to the school. The pen and shell casing were located in an area that had been patted down like a hunting blind. This blind offered a clear line of sight to the scene of the shooting. Tissue samples from the pen matched Muhammad's DNA. The shell casing had been fired by the Bushmaster rifle possessed by Muhammad when he was arrested, and tests determined that the bullet fragments recovered from Brown were fired from that rifle.

In the woods, police also found the first communication from Muhammad and Malvo. A tarot card, the one for death, was found with handwriting that stated, “Call me God.” On the back of the card was handwriting that stated, “For you, Mr. Police. Code: Call me God. Do not release to the Press.”

The twelfth shooting, discussed above, was the murder of Dean Meyers in Manassas, Virginia on October 9, 2002.

The thirteenth shooting occurred in Massaponax, Virginia on October 11, 2002. Kenneth Bridges (“Bridges”) was at an Exxon gas station on Jefferson Davis Highway. He was shot once in the chest by a bullet from a high velocity rifle. The bullet damaged his lungs and heart, causing fatal internal injuries. Two eyewitnesses testified that they saw the Caprice at or near the Exxon station on the morning of the shooting. Ballistics tests determined that the bullet fragments recovered from the Bridges shooting were fired from the Bushmaster rifle possessed by Muhammad when he was arrested.

The fourteenth shooting occurred in Falls Church, Virginia on October 14, 2002. Linda Franklin (“Franklin”) and her husband were shopping at a Home Depot store. As they loaded their purchases in their car, Franklin was shot and killed by a single bullet from a high velocity rifle. The bullet entered the left side of her head, passed through her brain and skull, and exited from the right side of her head. An off-duty police officer testified that she saw Malvo driving the Caprice in the vicinity of the shooting immediatelyafter it occurred. Tests determined that bullet fragments recovered from the Franklin shooting were fired from the Bushmaster rifle possessed by Muhammad when he was arrested.

On October 15, the day after Franklin was murdered, a Rockville, Maryland police dispatcher received a telephone call in which the caller stated: Don't say anything, just listen, we're the people who are causing the killings in your area. Look on the tarot card, it says, “call me God, do not release to press.” We've called you three times before trying to set up negotiations. We've gotten no response. People have died. The dispatcher attempted to transfer the call to the Sniper Task Force, but the caller hung up.

Three days later, on October 18, Officer Derek Baliles (“Officer Baliles”), a Montgomery County, Maryland Police Information Officer, received a telephone call. The caller told Officer Baliles to “shut up” and stated that he knew who was doing the shootings, but wanted the police officer to verify some information before he talked further. The caller told Officer Baliles to verify information concerning a shooting at a liquor store near “Ann Street.” The caller gave Officer Baliles the name and telephone number of a police officer in Alabama. Officer Baliles confirmed the shootings of Parker and Adams. The caller called Officer Baliles again. Officer Baliles told him that he had verified the information concerning the shootings of Parker and Adams. The caller then said that he had to find more coins for the call and had to find a telephone without surveillance and then hung up. The fifteenth shooting occurred in Ashland, Virginia on October 19, 2002. Jeffrey Hopper (“Hopper”) and his wife stopped in Ashland to fuel their car and eat dinner. They left the restaurant and were walking to their car when Hopper was shot in the abdomen. Hopper survived the shooting, but underwent five surgeries to repair his pancreas, stomach, kidneys, liver, diaphragm, and intestines. In the woods near the shooting, police found a hunting-type blind similar to the one found at the Brown shooting. At the blind, police found a shell casing, a plastic sandwich bag attached to a tree with a thumbtack at eye level that was decorated with Halloween characters and self-adhesive stars, and a candy wrapper. Tests determined that the shell casing and bullet fragments recovered from the Hopper shooting came from the Bushmaster rifle possessed by Muhammad when he was arrested. Surveillance videotapes identified Muhammad in a Big Lots Store on October 19, 2002 near the shooting from which the plastic sandwich bag and decorations were likely obtained. The candy wrapper contained both Malvo's and Muhammad's DNA.

Police also found a handwritten message in the plastic sandwich bag that read: For you Mr. Police. “Call me God.” Do not release to the Press. We have tried to contact you to start negotiation ... These people took our call for a Hoax or Joke, so your failure to respond has cost you five lives. If stopping the killing is more important than catching us now, then you will accept our demand which are non-negotiable. (i) You will place ten million dollar in Bank of america account ... We will have unlimited withdrawl at any atm worldwide. You will activate the bank account, credit card, and pin number. We will contact you at Ponderosa Buffet, Ashland, Virginia, tel. # ... 6:00 am Sunday Morning. You have until 9:00 a.m. Monday morning to complete transaction. “Try to catch us withdrawing at least you will have less body bags.” (ii) If trying to catch us now more important then prepare you body bags. If we give you our word that is what takes place. “Word is Bond.” P.S. Your children are not safe anywhere at anytime.

The note was not found until after the deadline had passed. The day after Hopper was shot at the Ponderosa, an FBI agent operating the “Sniper Tip Line” received a call from a young male who said, “Don't talk. Just listen. Call me God. I left a message for you at the Ponderosa. I am trying to reach you at the Ponderosa. Be there to take a call in ten minutes.”

On October 21, 2002, an FBI agent received a call to the FBI negotiations team which had been re-routed from the Ponderosa telephone number referenced in the note left after the Hopper shooting. A recorded voice stated: Don't say anything. Just listen. Dearest police, Call me God. Do not release to the press. Five red stars. You have our terms. They are non-negotiable. If you choose Option 1, you will hold a press conference stating to the media that you believe you have caught the sniper like a duck in a noose. Repeat every word exactly as you heard it. If you choose Option 2, be sure to remember we will not deviate. P.S.-Your children are not safe.

The sixteenth shooting occurred in Aspen Hill, Maryland on October 22, 2002. At approximately 6:00 a.m., Conrad Johnson (“Johnson”), a bus driver for the Montgomery County Transit Authority, was shot in the chest at the entrance to his bus. Johnson remained conscious until rescue workers arrived, but died at the hospital. A single high velocity rifle bullet killed Johnson. The bullet entered his right chest, and caused massive damage to his diaphragm, liver, pancreas,kidneys, and intestines. Tests determined that the bullet fragments recovered from the Johnson shooting were fired from the Bushmaster rifle possessed by Muhammad when he was arrested. A hunting-type blind, similar to those found at the Brown and Hopper shootings, was found in the woods near where Johnson was shot. A black duffle bag and a left-handed glove were found. A hair from the duffle bag yielded DNA that matched Muhammad's DNA. The police also found another plastic sandwich bag which contained a note and self-adhesive stars.

Muhammad and Malvo were captured and arrested on October 24, 2002, by agents of the FBI at a rest area in Frederick County, Maryland. They were asleep in the Caprice at the time of their capture. Inside the Caprice, police found a loaded .223 caliber Bushmaster rifle behind the rear seat. Tests determined that the DNA on the Bushmaster rifle matched the DNA of both Malvo and Muhammad. The only fingerprints found on the Bushmaster rifle were those of Malvo.

The Caprice had been modified after Muhammad purchased it from O'Kupski. The windows were heavily tinted. The rear seat was hinged, providing easy access to the trunk from the passenger compartment. The trunk was spray-painted blue. A hole had been cut into the trunk lid, just above the license plate. The hole was blocked by a right-handed brown glove that matched the left-handed glove found in the woods near the Johnson shooting. The trunk also had a rubber seal that crossed over the hole.

Inside the Caprice, police found a global positioning system (GPS) receiver, a magazine about rifles, an AT & T telephone charge card, ear plugs, maps, plastic sandwich bags, a rifle scope, .223 caliber ammunition, “walkie-talkies,” a digital voice recorder, a receipt from a Baton Rouge, Louisiana grocery store dated September 27, 2002, an electronic organizer, a plastic bag from a Big Lots Store, a slip of paper containing the Sniper Task Force phone number, and a list of schools in the Baltimore area.

Police also found LaRuffa's portable computer in the Caprice. Muhammad had loaded software entitled “Microsoft Streets and Trips 2002” onto this computer on September 29, 2002. In this program, there were various maps showing particular routes and places marked with icons, some with a skull and crossbones. Icons had been added to mark the places where Walekar, Lewis-Rivera, Seawell, Brown, Meyers and Franklin were shot. There was also a Microsoft Word file titled “Allah8.rtf” that contained portions of the text communicated to police in the extortion demands.

B. Proceedings Below

Subsequent to his arrest on October 24, 2002, Muhammad was indicted by a grand jury on October 28, 2002, for the capital murder of Meyers in the commission of an act of terrorism, Code §§ 18.2-31(13) and 18.2-46.4; capital murder of Meyers and at least one other person within a three-year period, Code § 18.2-31(8); conspiracy to commit capital murder, Code §§ 18.2-22 and 18.2-32; and illegal use of a firearm in the commission of capital murder, Code § 18.2-53.1.

Muhammad waived his right to a speedy trial on November 13, 2002. Upon motion by Muhammad, and without objection by the Commonwealth, venue was changed from the Circuit Court of Prince William County to the Circuit Court of the City of Virginia Beach.

From October 20 through November 17, 2003, Muhammad was tried before a jury in the Circuit Court of the City of Virginia Beach. The jury convicted Muhammad of all charges in the grand jury indictments. In a separate sentencing proceeding from November 17 through November 24, 2003, the jury sentenced Muhammad to two death sentences for the capital murder convictions, finding both the future dangerousness and vileness aggravating factors. The jury also sentenced Muhammad to 13 years in prison upon the remaining convictions. At the conclusion of the sentencing proceeding, venue was transferred back to the Circuit Court of Prince William County.

On March 9, 2004, the trial court imposed the two death sentences and the sentences of imprisonment as fixed by the jury. A final sentencing order was entered on March 29, 2004. Muhammad noted appeals of his convictions. On May 7, 2004, this Court certified Muhammad's appeals of his non-capital convictions under Code § 17.1-409 for consolidation with the appeals of his capital murder convictions and the review mandated by Code § 17.1-313.

We will recite additional facts and incidents of trial as necessary in context as specific assignments of error are considered.

II. Preliminary Issues
A. Issues Abandoned or Waived

Muhammad advances 102 assignments of error in his appeal. The Commonwealth maintains that Muhammad failed to sufficiently argue in his brief assignments of error 33, 34, 43, 45, 47, 52, 53, 68, 70, 78, 79, 80, 82, 83, 88, and 96. Rules 5:17(c)(4) and 5:27 require that a brief contain “[t]he principles of law, the argument, and the authorities relating to each assignment of error,” and further require that “[w]ith respect to each assignment of error, the principles, the argument, and the authorities shall be stated in one place and not scattered through the petition.” In his reply brief, Muhammad contests the Commonwealth's assertion only as to assignments of error 43, 52, 78, 79, 80, 81, and 83.FN2 Accordingly, assignments of error 33, 34, 45, 47, 53, 68, 70, 82, 88, and 96 are waived. Consequently, we will consider only assignments of error 43, 52, 78, 79, 80 and 83 as being in controversy.

FN2. The Commonwealth did not claim that Muhammad waived assignment of error 81.

Assignment of error 43 pertains to the admission of crime scene and autopsy photographs. Assignment of error 52 refers to testimony of Officer Cindy Martin concerning her observations of “brain matter” at the scene of the Ramos shooting. With respect to both of these assignments, there is insufficient argument in the brief. Having been directed by Muhammad to particular page citations where he claims to have presented these arguments, we agree with the Commonwealth's observation that Muhammad merely restates his assignment of error and makes reference to pages in the appendix where his trial court arguments can be found. We have previously held that such a practice is improper and is insufficient to meet the requirements of our Rules. Schmitt v. Commonwealth, 262 Va. 127, 138, 547 S.E.2d 186, 194 (2001), cert. denied, 534 U.S. 1094, 122 S.Ct. 840, 151 L.Ed.2d 719 (2002). Failure to adequately brief an assignment of error is considered a waiver. Powell v. Commonwealth, 267 Va. 107, 135, 590 S.E.2d 537, 554, cert. denied, 543 U.S. 892, 125 S.Ct. 86, 160 L.Ed.2d 157 (2004). Therefore, assignments 43 and 52 are deemed waived.

The remaining assignments of error claimed by the Commonwealth to be waived by lack of argument pertain to unadjudicated criminal conduct evidence presented at the bifurcated sentencing proceeding. Assignment of error 78 refers to evidence of the killing of Kenya Cook in Tacoma, Washington. Assignment of error 79 refers to a shooting into Temple Beth El Synagogue in Tacoma, Washington. Assignment of error 80 refers to testimony about the presence of a .308 caliber rifle found pointing to a particular apartment in Tacoma, Washington. Assignment of error 83 refers to evidence of a sharpened spoon handle in Muhammad's cell in the Prince William County jail.

For each of these assignments of error related to unadjudicated criminal conduct, Muhammad cites pages in the section of his brief entitled “Statement of Facts” and one page in the “Argument” section of his brief. The references in the “Statement of Facts” are to arguments made in the trial proceeding. Even giving Muhammad the benefit of examining additional pages of his brief not referred to as the location of his argument, Muhammad does not make particularized arguments in his brief concerning each of the categories of evidence he finds objectionable, except for evidence of the alleged escape attempt contained in assignment of error 81, which the Commonwealth agrees was not waived. Assignments of error 80 and 83 raise issues of lack of notice of presentation of unadjudicated criminal conduct; however, there is no argument of the question in the brief itself. Assignments of error 78, 79, 80, and 83 are not sufficiently argued in the brief. We will not consider them. Rule 5:17(c)(4); Rule 5:27; Elliott v. Commonwealth, 267 Va. 396, 422, 593 S.E.2d 270, 286 (2004), cert. denied, 543 U.S. 1081, 125 S.Ct. 875, 160 L.Ed.2d 825 (2005); Williams v. Commonwealth, 248 Va. 528, 537, 450 S.E.2d 365, 372 (1994), cert. denied, 515 U.S. 1161, 115 S.Ct. 2616, 132 L.Ed.2d 858 (1995).

B. Sufficiency of the Commonwealth's Capital Murder Theories and of the Evidence to Support These Theories

We first address the dominant issue presented in this case, namely the legal viability of the Commonwealth's theories of capital murder and the sufficiency of the evidence to support its theories. Muhammad's assignments of error 63-69, 71-74, 97, and 102, present these issues. We review questions of law, and mixed questions of law and fact, utilizing a de novo standard of review. Quatannens v. Tyrrell, 268 Va. 360, 365, 601 S.E.2d 616, 618 (2004), McCain v. Commonwealth, 261 Va. 483, 489-90, 545 S.E.2d 541, 545 (2001).

In accordance with established principles of appellate review, we state the facts in the light most favorable to the Commonwealth, the prevailing party in the trial court. We also accord the Commonwealth the benefit of all inferences fairly deducible from the evidence. Riner v. Commonwealth, 268 Va. 296, 303-04, 601 S.E.2d 555, 558-59 (2004), Armstrong v. Commonwealth, 263 Va. 573, 576, 562 S.E.2d 139, 140 (2002); Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

There is no distinction in the law between the weight or value to be given to either direct or circumstantial evidence. The finder of fact is entitled to consider all the evidence, without distinction, in reaching its determination. Commonwealth v. Hudson, 265 Va. 505, 512-13, 578 S.E.2d 781, 785, cert. denied, 540 U.S. 972, 124 S.Ct. 444, 157 L.Ed.2d 322 (2003). Circumstantial evidence is not viewed in isolation. While no single piece of evidence may be sufficient, the combined force of many concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion. Id. at 514, 578 S.E.2d at 786. We will set aside the judgment only if it is clearly wrong or unsupported by the evidence. Powell v. Commonwealth, 268 Va. 233, 236, 602 S.E.2d 119, 120-21 (2004).

The jury found Muhammad guilty of capital murder under two separate provisions of Virginia law: Code § 18.2-31(8) for the “willful, deliberate, and premeditated killing of more than one person within a three-year period;” and Code § 18.2-31(13) for the “willful, deliberate and premeditated killing of any person by another in the commission of or attempted commission of an act of terrorism.” Among the challenges made, Muhammad argues that the trial court erred in permitting a legally flawed “triggerman” theory to be presented to the jury as a result of various rulings and instructions. Muhammad further argues that, even under the Commonwealth's theory, the evidence was insufficient to prove that he was the so-called “triggerman.” Also, Muhammad challenges the sufficiency of the evidence to support his capital murder conviction based upon acts of terrorism. His constitutional challenges to the capital murder statute based upon terrorism are addressed elsewhere in this opinion.

1. Capital Murder Conviction Based Upon Murder of More Than One Person in Three Years
(a) Sniper Team Theory

The Commonwealth introduced the testimony of Sergeant Major Mark Spicer (“Spicer”) of the British Armed Forces as an expert in sniper methodology. His testimony and the direct and circumstantial evidence presented to the jury are more than sufficient to support, beyond a reasonable doubt, Muhammad's conviction for the capital murder of Dean Meyers and others within three years.

Spicer testified that “sniping is the ability of two men to go out and inflict injuries or kill people and more importantly spread terror across a much larger force.” While acknowledging that a sniper can act alone or in a team of three, he stated, “the basic unit for a sniper team ... is ... a two-man unit.” Spicer testified at length about the distinct responsibilities of each member of a two-man sniper unit. Essentially, one member of the team is the long-range shooter occupying an obscured position with the opportunity to shoot a particular victim. Because of the intensity and discipline required to take advantage of the narrow window of opportunity to take the long-range shot, the other member of the team, the “spotter,” informs the long-range shooter by radio that the victim is coming within the zone of potential fire and that other circumstances are ripe for the shot. The “spotter” may ultimately give the order to shoot.

Spicer connected the evidence found by police investigators in this case to the tools and methods ordinarily used by a sniper team. The .223 caliber Bushmaster rifle used in at least ten of the shootings, including Dean Meyers, is equivalent to the M4 rifle used by military snipers. Additionally, sniper teams use tools such as those found in the Caprice: a bipod support system for support of the rifle; holographic and telescopic scopes to aid sighting; GPS equipment to locate and relocate a vantage point for the long-range shot; “walkie-talkie” handheld radio sets for communication; pocket recording equipment for recording data in the dark, bungee cords for easy “break down” of the rifle for transportation; maps; silencers.

Spicer also testified about the methodology of a sniper team which was supported by the evidence in this case. Spicer emphasized the constant training with the rifle to maintain skills, the creation of a camouflaged location for firing, the use of existing traffic to facilitate escape, and the “team” approach with a “spotter” who is armed with a handgun and may additionally participate in the assault by firing from close range.

With regard to the Caprice, Spicer testified about the alterations made to it to facilitate the methodology of the sniper team. The rear firewall had been removed from the Caprice to provide entry into the trunk from the passenger compartment. The trunk compartment had been spray-painted a dark color to minimize contrast and shadow to avoid detection in the event the trunk was opened.

Finally, Spicer gave particular significance to the peculiar hole placed in the back of the trunk lid that enlarged the field of vision while minimizing the ability to see the person in the trunk. He referred to this special process as implementing the “castle principle” making reference to ancient methods of protecting the castle while minimizing danger to the shooter and maximizing the range of fire.

The Commonwealth presented compelling evidence that such a sniper team methodology was used by Muhammad and Malvo in multiple shootings prior to and after the murder of Dean Myers. Perhaps no one or two incidents could reasonably confirm the use of this methodology by the two perpetrators of this unique criminal enterprise. But in its entirety, the weight of the direct and circumstantial evidence in the case is sufficient to prove that Muhammad and Malvo acted together as a sniper team.

(b) Jury Instructions on Multiple Homicide Theory of Capital Murder

Muhammad was convicted under Code § 18.2-31(8), of the willful, deliberate, and premeditated killing of Dean Meyers and others within a three-year period. He maintains, “Only the immediate perpetrator of a homicide, the one who fired the fatal shot, and not an accessory before the fact or a principal in the second degree, may be convicted of capital murder.” He claims that under the Commonwealth's theory of the case, Muhammad could never be the “triggerman” as defined in our cases.

It is well-established that in felony cases: A principal in the first degree is the actual perpetrator of the crime. A principal in the second degree, or an aider or abettor as he is sometimes termed, is one who is present, actually or constructively, assisting the perpetrator in the commission of the crime. In order to make a person a principal in the second degree actual participation in the commission of the crime is not necessary. The test is whether or not he was encouraging, inciting, or in some manner offering aid in the commission of the crime. If he was present lending countenance, or otherwise aiding while another did the act, he is an aider and abettor or principal in the second degree. Jones v. Commonwealth, 208 Va. 370, 372-73, 157 S.E.2d 907, 909 (1967). A principal in the second degree “must share the criminal intent of the actual perpetrator or be guilty of some overt act.” Hall v. Commonwealth, 225 Va. 533, 536, 303 S.E.2d 903, 904 (1983). That there may be more than one principal in the first degree for a particular offense is beyond dispute:

Where two people engage in criminal conduct together, as where they participate in striking and killing another, each participant is a principal in the first degree in the homicide. Likewise, where part of a crime is committed in one place and another part is committed in a different place, the author of each part is a principal in the first degree. 1 Wharton's Criminal Law § 30 (15th ed.1993).

Generally in Virginia, a principal in the second degree is subject to the same punishment as the principal in the first degree. Taylor v. Commonwealth, 260 Va. 683, 687-88, 537 S.E.2d 592, 594 (2000). However, with the exception of capital murder prosecutions for a killing for hire, or a killing pursuant to the direction or order of one who is engaged in a continuing criminal enterprise, or a killing pursuant to the direction or order of one who is engaged in the commission of or attempted commission of an act of terrorism, “an accessory before the fact or principal in the second degree to a capital murder shall be indicted, tried, convicted and punished as though the offense were murder in the first degree.” Code § 18.2-18. Accordingly, pursuant to the charge of capital murder based upon killing of two or more persons within a three-year period, the Commonwealth must prove that Muhammad was a principal in the first degree.

The euphemism, “triggerman,” is inadequate to describe the breadth of criminal responsibility subject to the death penalty in Virginia. Immediately and obviously, capital murder cases are not confined to murders completed by the instrumentality of a firearm. Recognizing this inadequacy, our capital murder cases routinely use the term “immediate perpetrator” as the appropriate descriptive term. The term is not new, having been used as early as 1880 in our case law. Mitchell v. Commonwealth, 74 Va. (33 Gratt.) 845, 868 (1880).

Muhammad argues in assignments of error 66 and 69 that the trial court erred in giving instructions 4 (capital murder finding instruction) and 9 (defining principals in the first and second degree), and further argues in assignments of error 71 and 73 that the trial court erred in refusing to give his proffered instruction J (concerning multiple killings) and L (concerning the definition of a principal in the first and principal in the second degree). Muhammad's quarrel with the instructions is a function of his disagreement over the scope of the concept of “immediate perpetrator” for the purposes of the capital murder statutes. He further argues that the instructions at issue confuse the concept of principal in the first degree with the requirements of principal in the second degree and undermine the concept of “aiding and abetting.”

Instruction 4 required Muhammad to be a “princip[al] in the first degree, as defined in Instruction No. 9” for the jury to convict for capital murder. The pertinent part of Instruction 9 states: A principal in the first degree is the immediate perpetrator of the offense. Where two or more persons take a direct part in inflicting fatal injuries, each joint participant is an immediate perpetrator for the purpose of proving capital murder.

The principal in the second degree is a person who is present, aiding and abetting, by helping in some way in the commission of the crime. Presence and consent alone are not sufficient to constitute aiding and abetting. It must be shown the Defendant, John Allen Muhammad, intended his word, gestures, signals or actions to in some way, encourage, advise or urge, or in some way help the person committing the crime commit it ....

In Strickler v. Commonwealth, 241 Va. 482, 404 S.E.2d 227, cert. denied, 502 U.S. 944, 112 S.Ct. 386, 116 L.Ed.2d 337 (1991), we reviewed a capital murder conviction wherein the “Commonwealth's theory of the case was that Strickler and Henderson had acted jointly to accomplish the actual killing” of the victim by crushing her skull with a 69-pound rock. Id. at 494, 404 S.E.2d at 235. The evidence was consistent with the Commonwealth's argument that one of the two men held the victim immobile while the other dropped or threw the rock on her head. Citing Coppola v. Commonwealth, 220 Va. 243, 256-57, 257 S.E.2d 797, 806 (1979), cert. denied, 444 U.S. 1103, 100 S.Ct. 1069, 62 L.Ed.2d 788 (1980), where we held that a defendant who “jointly participated in [a] fatal beating” was subject to conviction and punishment for capital murder, we restated the rule of culpability for capital murder as follows:

We adhere to the view that where two or more persons take a direct part in inflicting fatal injuries, each joint participant is an “immediate perpetrator” for the purposes of the capital murder statutes. Strickler, 241 Va. at 495, 404 S.E.2d at 235. This rule has been reaffirmed in several cases since Strickler. See Lenz v. Warden, 265 Va. 373, 381, 579 S.E.2d 194, 199 (2003); Remington v. Commonwealth, 262 Va. 333, 349-50, 551 S.E.2d 620, 630 (2001), cert. denied, 535 U.S. 1062, 122 S.Ct. 1928, 152 L.Ed.2d 834 (2002); Williams, 248 Va. at 545, 450 S.E.2d at 376; Hancock v. Commonwealth, 12 Va.App. 774, 779-81, 407 S.E.2d 301, 304-05 (1991).

In Lenz and Remington, two criminal actors were immediate perpetrators because they “jointly participated in the fatal stabbing.” Remington, 262 Va. at 350, 551 S.E.2d at 630. Another category of multiple actors who may be immediate perpetrators was established in Strickler. The Court held that the evidence supported the Commonwealth's theory that one actor held the victim while the other actor dropped a large rock on her head. We observed that “it would have been necessary that she be held down by one assailant while the other lifted the rock and dropped it on her head.” Strickler, 241 Va. at 494, 404 S.E.2d at 235. As established in Strickler, conduct of two criminal actors may be such that they jointly complete the criminal act. It is not a matter of encouraging, advising, urging, or facilitating another in the commission of the crime. It is the actual participation together in a unified act that permits two or more persons to be immediate perpetrators. In Strickler, the Commonwealth advanced its theory concerning how the murder was accomplished. Our review on appeal considered whether the evidence supported the theory.

Similarly, we must consider the evidence in support of the Commonwealth's theory of how Muhammad and Malvo acted together in the murder of Dean Meyers. Spicer's expert testimony, the evidence recovered from the Caprice, the evidence from the 16 shootings, and the additional evidence concerning Malvo and Muhammad's relationship and activities support the Commonwealth's theory of the case. Muhammad and Malvo and the Caprice were identified in the immediate vicinity of Dean Meyers' murder approximately one hour before it occurred. Immediately after the murder, Muhammad was identified in the parking lot across the street from where Meyers was shot. Muhammad was driving the Caprice in which he and Malvo were later arrested. Ballistics tests determined that the bullet that killed Meyers was shot from the .223 caliber Bushmaster rifle found in the Caprice with Muhammad and Malvo when they were arrested. The Caprice was located in a position providing a direct line of fire to accomplish the murder. Significantly, the shot from the parking lot had to cross nine lanes of traffic on a heavily traveled highway at approximately 8:15 p.m. on a weekday evening. With the relatively small portal offered by the hole in the trunk of the Caprice and the obstacle presented by nine traffic lanes, the evidence supports the Commonwealth's theory of a “shooter” and a “spotter” and the direction by the spotter to shoot at the opportune time. As in Strickler, we review the evidence in the light most favorable to the Commonwealth to determine if it is sufficient to support the Commonwealth's theory. 241 Va. at 485, 404 S.E.2d at 230. Upon review of that evidence, we cannot say that the trial court was plainly wrong or without evidence to support its judgment.

The jury instructions given by the trial court accurately conveyed applicable law without confusion to the jury. Furthermore, Instructions J and L offered by Muhammad did not embrace a correct definition of immediate perpetrator and were properly refused by the trial court.

The theory of the Commonwealth concerning multiple immediate perpetrators acting as principals in the first degree accurately encompasses Virginia law. The jury instructions in question properly instructed the jury on the law and the facts of the case.

2. Capital Murder in the Commission of an Act of Terrorism
(a) Sufficiency of Evidence

Muhammad was also convicted of capital murder pursuant to Code § 18.2-31(13) for the willful, deliberate, and premeditated killing of Dean Meyers in the commission of an act of terrorism as defined in Code § 18.2-46.4. Code § 18.2-46.4 defines an “act of terrorism” as an act of violence as defined in clause (i) of subdivision A of § 19.2-297.1 committed with the intent to (i) intimidate the civilian population at large; or (ii) influence the conduct or activities of the government of the United States, a state or locality through intimidation. Code § 19.2-297.1 includes, among the acts of violence the offenses of first and second degree murder, voluntary manslaughter, malicious wounding, and robbery. Additionally, Code § 18.2-18 provides that a person convicted of capital murder under Code § 18.2-31(13) is not required to be a principal in the first degree to the murder if the killing was “pursuant to the direction or order of the one who is engaged in the commission of ... an act of terrorism.”

Significantly, Muhammad does not contest the sufficiency of evidence to support the charge that acts of violence committed by him and Malvo were done with the intent to “intimidate the civilian population at large” or to “influence the conduct or activities of the government of the United States, a state or locality through intimidation.” Rather, he challenges his conviction for capital murder based upon the terrorism predicate by attacking the validity of the statute, constitutionally and otherwise, and by challenging the sufficiency of the evidence that he “directed” or “ordered” Malvo with respect to the killing of Dean Meyers. We will consider Muhammad's challenge to the validity of the statute elsewhere in this opinion.

The Commonwealth argues that the evidence is sufficient to support two separate evidentiary theories upon which Muhammad's conviction for capital murder in the commission of an act of terrorism is based. One theory is based upon Muhammad committing the murder of Dean Meyers as a principal in the first degree because he is an immediate perpetrator of the crime. The second evidentiary theory is based upon Muhammad giving a direction or order to Malvo to kill Dean Meyers. Either or both theories are sufficient to sustain the proof necessary to affirm Muhammad's conviction for capital murder in the commission of an act of terrorism.

As stated above, the proof is sufficient to establish beyond a reasonable doubt that Muhammad acted as a principal in the first degree, as an immediate perpetrator, in the death of Dean Meyers. The “sniper theory” advanced by the Commonwealth is supported through Spicer's expert testimony, the ample evidence of such a methodology, and our prior decisions. As an immediate perpetrator of the death of Dean Meyers in a murder that qualifies as an act of violence under Code § 19.2-297.1, Muhammad was a principal in the first degree in the “willful, deliberate, and premeditated killing of [a] person ... in the commission ... of an act of terrorism.” Code § 18.2-31(13).

Additionally, the combined weight of direct and circumstantial evidence is sufficient to sustain Muhammad's conviction even if he is considered to have been a criminal actor in the second degree who gave an order or direction to Malvo to kill Dean Meyers. Malvo and Muhammad were seen in the Caprice in the vicinity of Meyers' shooting approximately one hour beforehand. The Caprice was the same vehicle in which Muhammad and Malvo were arrested. It was altered to provide access to the trunk from the inside and a portal for firing a rifle through the trunk lid. Muhammad was interviewed by police immediately after the shooting in a parking lot across the street from where Meyers was shot. Malvo was not seen at the parking lot. There was a direct line of fire between the parking lot and the Sunoco station where Meyers was shot. Between the parking lot and the site where Meyers was shot were nine traffic lanes. The evidence shows that Malvo and Muhammad possessed the .223 caliber Bushmaster rifle, mittens with open fingers, a GPS receiver, earplugs, maps, rifle scopes, “walkie-talkies,” a voice recorder, an electronic organizer, and other evidence previously described. The evidence proves that the bullet that killed Dean Meyers came from the .223 caliber Bushmaster rifle in the possession of Muhammad and Malvo when they were arrested. The evidence also contains direct or circumstantial proof of instances where the two men committed similar crimes together.

Muhammad and Malvo were seen nearby in the Caprice immediately before the murder of Dean Meyers. Only Muhammad was seen immediately afterward. The weight of the evidence supports the conclusion that either Muhammad or Malvo fired the fatal shot that killed Dean Meyers. If it was Muhammad, he is a principal in the first degree, with or without the sniper theory advanced by the Commonwealth. The evidence more reasonably proves that Malvo was the shooter and was in the converted trunk when Muhammad was interviewed in the parking lot immediately after the murder.

The circumstances of this murder are consistent with the expert testimony concerning a two-man sniper team. As Spicer testified, the “spotter” sets up the shot at a position safe from view yet within range of the target. In this case, the relatively limited range of the shooter in the trunk of the car requires split-second timing to successfully hit a target that quickly comes into range and just as quickly moves out of range. This abbreviated window of opportunity is made all the more difficult by nine lanes of traffic passing between the shooter and the target. According to Spicer, the job of the spotter is to communicate with the shooter, give the order or direction, and then to provide an undetected getaway.

Furthermore, the record is replete with evidence that Muhammad directed and ordered Malvo in the entire criminal enterprise. As the Commonwealth argued based upon evidence presented:

It was Muhammad who brought Malvo to this country from Jamaica. It was Muhammad who had the military background in shooting and snipering skills and who trained Malvo. It was Muhammad who provided the weapons. It was Muhammad who was determined to terrorize his ex-wife's area of the country. It was Muhammad who was the “father” and Malvo who was the “son.” All the evidence about their relationship-from the Lighthouse Mission and friends in Washington state to Muhammad's cousin in Baton Rouge and the YMCA personnel in Maryland-consistently showed Muhammad directing and ordering Malvo's conduct. Everyone who saw them together observed that Malvo was extremely obedient to Muhammad, not the other way around.

On this issue, the trial court held that there was “overwhelming circumstantial evidence regarding [Muhammad's] direction and ordering of Mr. Malvo.” Upon review of the evidence, we cannot say that the trial court was clearly wrong or without evidence to support this conclusion. Powell, 268 Va. at 236, 602 S.E.2d at 120-21.

We hold that Muhammad was an immediate perpetrator and as such was a principal in the first degree in the commission of capital murder during the commission of an act of terrorism. We further hold that the evidence proves that Muhammad gave a direction or order sufficient to satisfy the requirements of Code § 18.2-18 such that even if he were a criminal actor ordinarily demonstrating culpability as a principal in the second degree, he is nonetheless guilty of capital murder under Code §§ 18.2-31(13) and 18.2-18.

(b) Jury Instructions on the Terrorism Capital Offense
Muhammad maintains that it was error for the trial court to give Instructions 5 and 6 and to refuse his Instructions K and M. (Assignments of Error 67, 68, 72, 74). Assignment of error 68 regarding instruction 6 has been waived for failure to brief the issue. Upon review of the evidence and the instruction, we hold that the trial court did not err in granting instruction 5. With respect to Muhammad's proffered instructions K and M, he states in his brief only that they properly addressed the terrorism issues. There is no argument concerning why it would be error to refuse them in light of the other instructions given. We will not consider this argument. Rule 5:17(c).

C. Alleged Inconsistent Prosecution Theories

The independently elected Commonwealth's Attorneys of Prince William County and Fairfax County maintained contemporaneous prosecutions of Muhammad and Malvo. In Fairfax County, Malvo was prosecuted for the murder of Linda Franklin wherein Malvo interposed an insanity defense. In Prince William County, Muhammad was prosecuted for the murder of Dean Meyers. Much of the same evidence was utilized in each prosecution. In assignments of error 8, 100, and 101, Muhammad argues that the Commonwealth violated principles of due process “by simultaneously taking materially inconsistent positions in the Muhammad case, where it claimed Muhammad directed and controlled Malvo, and in the Malvo case where it claimed that Malvo was a free agent.” Muhammad further argues that the Commonwealth should be judicially estopped from maintaining prosecution theories in two cases based upon the same evidence because the theories of prosecution are “inconsistent” and “irreconcilable.” We need not address the legal arguments advanced by Muhammad because we hold that the theories of prosecution by the two independent prosecutors were not inconsistent.

Malvo sought to prove in his case in Fairfax County that he was insane or “brainwashed” by Muhammad. Evidence was successfully offered to rebut such claims. In the Fairfax County prosecution, the Commonwealth offered expert testimony that Malvo was “fully cognizant, conscious, deliberate, [and] purposeful.” The Commonwealth argued in Malvo's case that he was a “bright, clever human being” who knew what he was doing when he acted in concert with Muhammad. In the Prince William County case against Muhammad, the Commonwealth presented evidence that Muhammad was the “leader” and “teacher” who trained and directed Malvo to perfect his sniper skills. A successful rebuttal of Malvo's affirmative defense of insanity is not inconsistent with a theory of prosecution that includes Muhammad engaged in training and directing Malvo in their sniper team activity. It is beyond peradventure that businesses, sports teams, and military operations involve training and direction without insanity of the participants as an issue. The trial court did not err in rejecting Muhammad's claim of inconsistent theories of prosecution.

III. Indictment and Grand Jury Process

Muhammad asserts in multiple assignments of error that often overlap that there were fatal flaws in the indictment process. (Assignments of Error 4, 6, 7, 9, 10, 14, 15, 17, 18, 19, 27). We will consider them topically.

A. Alleged Failure to Accuse Muhammad as the “Triggerman”

Muhammad argues the Commonwealth failed to allege facts necessary for a death sentence in the indictment because it did not allege that he actually fired the shot that killed Dean Meyers. He further alleges that it was error to deny his motion for a bill of particulars to accomplish this end. Also, he argues that the Commonwealth's notice of intent to seek the death penalty does not cure this alleged legal flaw in the indictment. Finally, he argues that the trial court should have dismissed the indictment for its failure to indict Muhammad for murder in the second degree rather than capital murder because of lack of allegations that he was the “triggerman.”

These related allegations simply advance Muhammad's argument that upon the facts of this case, only the person who “pulls the trigger” is eligible for the death sentence under Virginia law. As we have set forth, an immediate perpetrator of the act is eligible for the death sentence. The trial court did not err in recognizing this principle of law in its rulings on these motions.

B. Failure to State Aggravating Factors in the Indictment

Muhammad alleges that the capital murder indictments are defective because they failed to recite aggravating factors that would support a death sentence. He argues that pursuant to Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), aggravating factors in support of the death penalty are the functional equivalent of elements of the offense of capital murder. He further alleges that it was error to refuse his request for a bill of particulars specifying the aggravating factors upon which the Commonwealth would rely. Finally, despite the fact that the Commonwealth filed a notice of intent to seek the death penalty based upon both aggravating factors of vileness and future dangerousness, he argues that the Commonwealth's notice did not cure the defect in the indictments.

Ring involved the statutory sentencing scheme in Arizona where a death sentence may not legally be imposed unless at least one aggravating factor is found to exist beyond a reasonable doubt. Ring, 536 U.S. at 596, 122 S.Ct. 2428. Additionally, the Arizona statutes provided that the judge, without a jury, was to make this determination. Id. at 592-93, 122 S.Ct. 2428. The issue before the Supreme Court of the United States was stated as follows, “The question presented is whether that aggravating factor may be found by the judge, as Arizona law specifies, or whether the Sixth Amendment's jury trial guarantee, made applicable to the States by the Fourteenth Amendment, requires that the aggravating factor determination be entrusted to the jury.” Id. at 597, 122 S.Ct. 2428. Citing the Court's prior opinion in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the precise answer was provided: “Because Arizona's enumerated aggravating factors operate as ‘the functional equivalent of an element of a greater offense,’ Apprendi, 530 U.S. at 494, n. 19, 120 S.Ct. 2348, the Sixth Amendment requires that they be found by a jury.” Ring, 536 U.S. at 609, 122 S.Ct. 2428.

The Virginia statutory scheme does not suffer from the infirmities found in Apprendi and Ring. In Virginia, if the defendant elects a jury trial, the existence of one or both aggravating factors of vileness or future dangerousness is submitted to a jury. Muhammad recognizes that Virginia's statutory scheme provides for jury determination of aggravating factors; however, he argues that the indictments in his case were defective for failure to set out the aggravating factors upon which the Commonwealth would seek the death penalty.

In Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), the Supreme Court reviewed a conviction under a federal statute prosecuted in federal court. The Court stated, “under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Id. at 243, n. 6, 119 S.Ct. 1215. The Court in Apprendi quoted this statement and added, “The Fourteenth Amendment commands the same answer in this case involving a state statute.” Apprendi, 530 U.S. at 476, 120 S.Ct. 2348. However, in a footnote to the opinion, the Court stated,

Apprendi has not here asserted a constitutional claim based on the omission of any reference to sentence enhancement or racial bias in the indictment. He relies entirely on the fact that the “due process of law” that the Fourteenth Amendment requires the States to provide to persons accused of crime encompasses the right to a trial by jury ... and the right to have every element of the offense proved beyond a reasonable doubt .... That Amendment has not, however, been construed to include the Fifth Amendment right to “presentment or indictment of a Grand Jury” that was implicated in our recent decision in Almendarez-Torres v. United States, 523 U.S. 224 [118 S.Ct. 1219, 140 L.Ed.2d 350] (1998). We thus do not address the indictment question separately today. Apprendi, 530 U.S. at 477, n. 3, 120 S.Ct. 2348. As if to emphasize the point, the Court stated in a footnote to Ring,

Ring does not contend that his indictment was constitutionally defective. See Apprendi, 530 U.S. at 477, n. 3[, 120 S.Ct. 2348] (Fourteenth Amendment “has not ... been construed to include the Fifth Amendment right to ‘presentment or indictment of a Grand Jury’ ”). Ring, 536 U.S. at 597, n. 4, 122 S.Ct. 2428.

Muhammad concedes in his brief, “[w]e have acknowledged that states are currently not bound by the federal constitution to proceed in felony cases by way of indictment.” He then makes the argument that is now before this Court: “Nevertheless, having chosen to establish a grand jury system in Virginia, there is a federal due process right that demands the state properly follow that scheme.” We disagree with Muhammad. A similar argument was made and rejected in Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). In Finley, Pennsylvania provided court appointed counsel for collateral attacks upon conviction, a right not required by the Constitution of the United States. The Court held that Finley could not sustain a federal constitutional claim for deficient performance of counsel in such collateral proceedings where there was no federal constitutional right to counsel in the first place. Id. at 558-59, 107 S.Ct. 1990. Similarly, Muhammad has no constitutional claim for failure to include aggravating factors in the two capital murder indictments because proceeding by indictment is not constitutionally required of the states.

Additionally, in Virginia, if the indictment gives a defendant sufficient notice of the nature and character of the offense charged so he can make his defense, no bill of particulars is required. Roach v. Commonwealth, 251 Va. 324, 340, 468 S.E.2d 98, 107, cert. denied, 519 U.S. 951, 117 S.Ct. 365, 136 L.Ed.2d 256 (1996), Wilder v. Commonwealth, 217 Va. 145, 147, 225 S.E.2d 411, 413 (1976). In Goins v. Commonwealth, 251 Va. 442, 454, 470 S.E.2d 114, 123, cert. denied, 519 U.S. 887, 117 S.Ct. 222, 136 L.Ed.2d 154 (1996), we held that an indictment reciting an offense under Code § 18.2-31 was sufficient to place the defendant on notice of the nature and character of the offense charged. We noted that:

The capital murder indictment alleged that “on or about October 14, 1994, in the City of Richmond, Christopher Cornelius Goins did feloniously and unlawfully commit capital murder in that he did kill and murder Robert Jones in a willful, deliberate and premeditated killing of more than one person as part of the same act or transaction.” Id. at 454 n. 1, 470 S.E.2d at 123 n. 1. We held that the indictment in Goins was sufficient. Muhammad's indictments were sufficient as well.

A defendant is not entitled to a bill of particulars as a matter of right. Code § 19.2-230 provides that a trial court “may direct the filing of a bill of particulars.” The trial court's decision whether to require the Commonwealth to file a bill of particulars is a matter committed to its sound discretion. Quesinberry v. Commonwealth, 241 Va. 364, 372, 402 S.E.2d 218, 223, cert. denied, 502 U.S. 834, 112 S.Ct. 113, 116 L.Ed.2d 82 (1991). Here, the trial court denied Muhammad's motion for a bill of particulars identifying the aggravating factors upon which the Commonwealth would rely. After the trial court denied the bill of particulars, the Commonwealth nonetheless filed a notice of intent to seek the death penalty which fully placed Muhammad on notice that the Commonwealth intended to prove both future dangerousness and vileness as aggravating factors.

We hold that aggravating factors are not constitutionally required to be recited in a capital murder indictment. We hold that the indictments in this case were sufficient under Virginia law. We hold that the purported violation of Virginia's indictment provisions in this case does not rise to the level of a federal constitutional claim. We hold that it was not an abuse of discretion to refuse Muhammad's motion for a bill of particulars. Finally, we hold that any error that could have been committed by the failure to order a bill of particulars was rendered harmless by the provision of the information Muhammad sought in the Commonwealth's notice of intent to seek the death penalty.

C. Alleged Defect in Indictment Because of Disjunctive Language

In assignment of error 15, Muhammad asserts that the indictment charging capital murder under the terrorism predicate is defective because of the use of disjunctive terms. The indictment in question follows the language of Code § 18.2-46.4 which states in pertinent part: “Act of terrorism” means an act of violence as defined in clause (i) of subdivision A of § 19.2-297.1 committed with the intent to (i) intimidate the civilian population at large; or (ii) influence the conduct or activities of the government of the United States, a state or locality through intimidation. Code § 18.2-46.4 (emphasis added). Muhammad claims that the indictment is defective because it did not specify which of the two intents Muhammad had at the time of the killing. His argument is not based upon any constitutional claims; rather, his argument is confined to state law issues.

The indictment charges a single offense and not two separate offenses. The single offense can be satisfied upon proof of either or both of two mens rea conditions. A reasonable construction of the indictment as rendered by the grand jury includes both. Here, the trial court permitted the amendment of the indictment to more particularly express what was already a reasonable construction of the meaning of the indictment as delivered. The indictment was amended from “or” to “and/or.”

Previously, we considered a similar claim of defective indictment based upon the use of the disjunctive, “or.” In Buchanan v. Commonwealth, 238 Va. 389, 398, 384 S.E.2d 757, 763 (1989), cert. denied, 493 U.S. 1063, 110 S.Ct. 880, 107 L.Ed.2d 963 (1990), the defendant was charged with capital murder based upon the killing of more than one person as a part of the same act or transaction. Buchanan killed four people. We observed that:

The first indictment charged, in essence, that Buchanan killed Buchanan, Sr. as part of the same act or transaction in which he killed J.J., Donnie, or, Mrs. Buchanan. 238 Va. at 396, 384 S.E.2d at 762. We held that this indictment reasonably placed Buchanan on notice in the following manner: Under the first indictment, Buchanan was on notice that he had to defend against a claim that he killed Buchanan, Sr. and all three of the other victims as part of the same act or transaction; that he killed Buchanan, Sr. and any two of the other victims as part of the same act or transaction; or that he killed Buchanan, Sr. and any one of the other victims as part of the same act or transaction. Id. at 397, 384 S.E.2d at 762.

Muhammad had notice in the indictment, as originally found by the grand jury and as amended, that he was charged with a single offense that could be proved by showing: (1) his intent to intimidate the civilian population at large, or (2) his intent to influence the conduct or activities of the government of the United States, a state or locality through intimidation; or (3) his intent to do both 1 and 2 above. The trial court did not err in refusing to dismiss the terrorism indictment.

D. Alleged Deficiencies in the Composition of the Grand Jury

Muhammad argues that the process utilized in his indictment was fatally flawed because the grand jury that indicted him was “improperly constituted in violation of Virginia Law and [his] rights to due process and equal protection.” Other than this conclusory statement and the further statement that the process is “arbitrary and vague,” Muhammad makes no constitutional argument in his brief in support of his contentions. His argument is insufficient. Rule 5:17(c). Furthermore, no constitutional argument was raised in the trial court. Rule 5:25. We will not consider this vague and uncertain constitutional challenge to the composition of the grand jury.

Additionally, his statutory challenge is without merit. Code §§ 19.2-191 through -205 govern the selection of regular grand jurors. The record reveals that the grand jurors who returned indictments against Muhammad were selected pursuant to the following routine process. The clerk of the court creates a list of individuals who have been called to serve as petit jurors at least three times, but not in the immediately preceding three years. From that list, a smaller list of 120 names is created. The list of 120 names is reviewed by all the judges of the circuit. Questionnaires are sent to the persons on the list. At each term of court, seven jurors are randomly selected to serve as regular grand jurors. The chief judge of the circuit reviews the questionnaires prior to the first meeting of the grand jury. During his first meeting with the grand jurors, the chief judge discusses their duties with them and selects one of them to be the foreperson.

The procedure employed in this case complies with the requirements outlined by statute that the grand jury be composed of “persons 18 years of age or over, of honesty, intelligence and good demeanor and suitable in all respects to serve as grand jurors,” Code § 19.2-194, and “a citizen of this Commonwealth, eighteen years of age or over, and shall have been a resident of this Commonwealth one year and of the county or corporation in which the court is to be held six months, and is in other respects a qualified juror.” Code § 19.2-195.

Finally, Muhammad claims that the grand jurors “were not properly rotated as required by Section 19.2-194.” There is no evidence to support his claim. The evidence does establish that this grand jury was sworn to sit for a two month term in October and November 2002. We hold that the evidence does not sustain a claim that there were infirmities in the process, selection, or make-up of the grand jury that indicted Muhammad.

IV. Constitutional Challenge to the Terrorism Statute

In assignment of error 17, Muhammad maintains that the terrorism statutes, Code §§ 18.2-31(13) and 18.2-46.4 are unconstitutionally overbroad and vague. We disagree.

As the Supreme Court stated in Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982): In a facial challenge to the overbreadth and vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications. A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law. Id. at 494-95, 102 S.Ct. 1186. See Chicago v. Morales, 527 U.S. 41, 52, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999). The First Amendment doctrine of overbreadth requires proof that a law “punishes a ‘substantial’ amount of protected free speech, ‘judged in relation to the statute's plainly legitimate sweep.’ ” Virginia v. Hicks, 539 U.S. 113, 118, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003) (citing Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)). While Muhammad utilizes the term “overbroad,” he offers no evidence or argument in support of the requirements of this doctrine. Instead, Muhammad confines his argument to vagueness.

A successful challenge to the facial validity of a criminal statute based upon vagueness requires proof that the statute fails to provide notice sufficient for ordinary people to understand what conduct it prohibits, or proof that the statute “may authorize and even encourage arbitrary and discriminatory enforcement.” Morales, 527 U.S. at 56, 119 S.Ct. 1849; Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). But “[o]ne to whose conduct a statute clearly applies may not successfully challenge it for vagueness.” Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974); Commonwealth v. Hicks, 267 Va. 573, 580-81, 596 S.E.2d 74, 78 (2004); accord Gibson v. Mayor of Wilmington, 355 F.3d 215, 225 (3d Cir.2004); Fuller v. Decatur Public School Board of Education School District 61, 251 F.3d 662, 667 (7th Cir.2001); Joel v. City of Orlando, 232 F.3d 1353, 1359-60 (11th Cir.2000); United States v. Tidwell, 191 F.3d 976, 979 (9th Cir.1999); United States v. Hill, 167 F.3d 1055, 1063-64 (6th Cir.), cert. denied, 528 U.S. 872, 120 S.Ct. 175, 145 L.Ed.2d 148 (1999); Woodis v. Westark Community College, 160 F.3d 435, 438-39 (8th Cir.1998); United States v. Corrow, 119 F.3d 796, 803 (10th Cir.1997), cert. denied, 522 U.S. 1133, 118 S.Ct. 1089, 140 L.Ed.2d 146 (1998); Love v. Butler, 952 F.2d 10, 14 (1st Cir.1991); Hastings v. Judicial Conference of the United States, 829 F.2d 91, 107 (D.C.Cir.1987), cert. denied, 485 U.S. 1014, 108 S.Ct. 1487, 99 L.Ed.2d 715 (1988); Hill v. City of Houston, 789 F.2d 1103, 1127 (5th Cir.1986), aff'd, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987); Gallaher v. City of Huntington, 759 F.2d 1155, 1160 (4th Cir.1985).

Capital murder pursuant to Code § 18.2-31(13) is defined as the “willful, deliberate and premeditated killing of any person by another in the commission of or attempted commission of an act of terrorism as defined in Code § 18.2-46.4.” “Act of terrorism” means an act of violence as defined in clause (i) of subdivision A of § 19.2-297.1 committed with the intent to (i) intimidate the civilian population at large; or (ii) influence the conduct or activities of the government of the United States, a state or locality through intimidation. Code § 18.2-46.4. The “act of violence” reference to Code § 19.2-297.1 includes a list of certain specific aggravated felonies including murder, voluntary manslaughter, mob-related felonies, malicious assault or bodily wounding, robbery, carjacking, sexual assault and arson. The combination of these statutes defines criminal conduct that constitutes a willful, deliberate and premeditated killing in the commission, or attempted commission, of one of the designated felonies with the intent to intimidate the civilian population or influence the conduct of government through intimidation. Additionally, under Code § 18.2-18 the General Assembly extended the reach of criminal conduct subject to the death penalty to include “a killing pursuant to the direction or order of one who is engaged in the commission of or attempted commission of an act of terrorism under the provisions of subdivision 13 of § 18.2-31.”

Muhammad raises questions about the definition of “intimidation,” “civilian population at large,” and “influence the conduct or activities of government.” He suggests that failure to statutorily define these phrases renders the statutes unconstitutional. He further complains that “no distinction can be drawn between the newly defined crime and any ‘base offense’ which carries with it the same hallmarks of intimidation and influence,” and that this allows “unguided and unbridled law enforcement discretion.” Muhammad further maintains that extending the scope of the statute to reach those who order or direct a killing in the commission of or attempted commission of an act of terrorism somehow violates what he calls the “ triggerman rule.” In a particularly exaggerated statement, Muhammad claims that extending the scope of the statute “allows almost any violent criminal act to be classified as terrorism and thereby rendering any individual charged eligible for the death penalty.” We disagree with each of Muhammad's contentions.

By referencing established criminal offenses as acts of violence subject to the statutory scheme, the legislature included offenses with previously defined elements and mens rea requirements. Additionally, the term “intimidate” has been defined by case law. See Sutton v. Commonwealth, 228 Va. 654, 663, 324 S.E.2d 665, 669 (1985) (defining intimidation as unlawful coercion; extortion; duress; putting in fear).

We have no difficulty understanding that “population at large” is a term that is intended to require a more pervasive intimidation of the community rather than a narrowly defined group of people. Examples are illustrative. When used in a descriptive sense referring to a prison, the prison “population at large” consists of everyone in the prison rather than a small subset of prisoners. Lewis v. Casey, 518 U.S. 343, 358, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); Cleavinger v. Saxner, 474 U.S. 193, 210, 106 S.Ct. 496, 88 L.Ed.2d 507 (1985). In a case involving the exclusion of certain people from capital juries, the term “population at large” meant the community from which the jury pool could be chosen. Lockhart v. McCree, 476 U.S. 162, 179, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986). It is significant to note that Muhammad offered a similar understanding of the term when he argued below that all potential jurors in his case were victims. We do not believe that a person of ordinary intelligence would fail to understand this phrase.

Similarly, we do not believe that a person of ordinary intelligence needs further definition of the phrase “influence the conduct or activities of government.” Muhammad's argument on this point is essentially a strained “legislative history” argument. Quoting former Attorney General Jerry Kilgore's press releases, Muhammad claims that the statutes are designed “to address al-Qaeda type attacks-attacks motivated by a greater political purpose.” Even if a press release could qualify as legislative history, it is quite a leap to impute, from the press releases of an Attorney General, the intent of the General Assembly. We find the intent of the General Assembly primarily in the words it employs in enacting legislation. Nothing in the words of these statutes evinces an intent to limit its application to criminal actors with political motives.

Muhammad maintains that there is no distinction between the “base offense” and the capital offense based upon terrorism. What he appears to be arguing is that the terrorism statute is unnecessary on the one hand because a killing in the commission of one of the enumerated violent acts could result in the death penalty anyway, and on the other hand, its reach is extended too far by including those who order or direct such killings. Clearly, the General Assembly has the power to define criminal conduct even if statutes overlap in coverage. Whether a defendant can be simultaneously or successively charged with overlapping offenses implicates other questions not presented here.

Muhammad's quarrel with the expansion of the potential imposition of the death penalty to those who order or direct another in a killing in the commission of or attempted commission of an act of terrorism is a policy question well within the purview of legislative power so long as it is not otherwise unconstitutional. In that respect, Muhammad argues in assignment of error 18 that the provisions of Code § 18.2-18 allow the death penalty for a defendant with no demonstrated intent to kill the victim. Muhammad incorrectly characterizes the extension of the scope of the statute to reach traditional “aiders and abettors.” The provisions of Code § 18.2-18 do not extend to “aiders and abettors;” rather, it extends only to those who “direct” or “order” the killing. The criminal actor who “orders” or “directs” the killing is not unlike the criminal actor who hires another to kill and is potentially subject to the death penalty under Code § 18.2-31(2). The criminal actor who “orders” or “directs” the killing shares the intent to kill with the one who carries out the murder. The provisions of Code § 18.2-18 do not have the effect imagined by Muhammad.

Muhammad's argument concerning vagueness does not focus on his conduct. Indeed, Muhammad does not claim in his brief that his actions and those of Malvo were not acts of terrorism under the statutory provisions. Rather, Muhammad hypothetically poses questions about the applicability of the statute in other circumstances. As discussed above, the statutes provide notice sufficient for ordinary people to understand what conduct they prohibit, and do not authorize and/or encourage arbitrary and discriminatory enforcement. More importantly, Muhammad cannot and does not maintain that the statutes do not give him notice that his conduct and Malvo's conduct was prohibited. Nor does Muhammad allege that he has been subject to arbitrary or discriminatory enforcement of the statutes. One who engages in conduct that is clearly proscribed and not constitutionally protected may not successfully attack a statute as void for vagueness based upon hypothetical conduct of others. Hoffman Estates, 455 U.S. at 494-95, 102 S.Ct. 1186.

V. Alleged Conflict Between Sentencing Provisions

Muhammad argues in assignment of error 27 that he may not be sentenced to death because of an “absolute and un-rectifiable conflict” between the capital murder statute (Code § 18.2-31(13)), and the terrorism statute (Code § 18.2-46.4, et seq.). Capital murder is a Class 1 felony punished by life imprisonment or death. The terrorism statute provides for a penalty as a Class 2 felony “if the base offense of such act of terrorism may be punished by life imprisonment, or a term of imprisonment of not less than twenty years.” Code § 18.2-46.5. Muhammad argues that there is “no discernable distinction whatsoever between murder committed under the terrorism provision and murder committed under the capital murder provision.” He maintains that he may not be subject to the greater punishment.

The Supreme Court of the United States resolved this same issue in a case involving sentencing provisions under two statutes that encompassed the same criminal act. Holding that the prosecutor had discretion to choose which statute to base the prosecution upon, the Court stated:

The provisions in issue here, however, unambiguously specify the activity proscribed and the penalties available upon conviction. That this particular conduct may violate both Titles does not detract from the notice afforded by each. Although the statutes create uncertainty as to which crime may be charged and therefore what penalties may be imposed, they do so to no greater extent than would a single statute authorizing various alternative punishments. So long as overlapping criminal provisions clearly define the conduct prohibited and the punishment authorized, the notice requirements of the Due Process Clause are satisfied.

This Court has long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants. United States v. Batchelder, 442 U.S. 114, 123-24, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). Muhammad makes no constitutional argument in his brief on this issue. He merely recites that there is a conflict. He does not argue that there is ambiguity in either statute nor does he argue that application of the statute discriminates against any class of defendants. The trial court did not err in denying Muhammad's motion to preclude a death sentence on this basis.

VI. Right to Self-Representation

Muhammad alleges in briefing assignment of error 35 that the trial court violated Muhammad's “Sixth Amendment right to self-representation by unduly interfering with his ability to consult with standby counsel.” The right of a criminal defendant to represent himself is found in the Sixth Amendment to the Constitution of the United States. Faretta v. California, 422 U.S. 806, 807, 836, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The right is not without limitations and conditions. Only after the jury panel had been sworn, did Muhammad request permission to represent himself. At that time, Muhammad did not have a constitutional right to proceed pro se. As the United States Court of Appeals for the Fourth Circuit has held, we think it is reasonable, and entirely compatible with the defendant's constitutional rights, to require that the right of self-representation be asserted at some time “before meaningful trial proceedings have commenced,” and that thereafter its exercise rests within the sound discretion of the trial court. United States v. Lawrence, 605 F.2d 1321, 1325 (4th Cir.1979), cert. denied, 444 U.S. 1084, 100 S.Ct. 1041, 62 L.Ed.2d 770 (1980). Nonetheless, after extensive questioning of Muhammad concerning his decision and appropriate admonition concerning the risks involved and the manner in which it would be permitted, the trial court exercised its discretion and allowed Muhammad to represent himself. The trial court directed his lawyers to be “standby counsel.” The trial court informed Muhammad that “standby counsel” could sit at counsel table with him, and “you can perhaps upon occasion ask them questions, but I don't expect you to ask them every question that's being formulated. That would, I think, unduly hinder the trial process.”

After two days of self-representation, Muhammad changed his mind and requested that his “standby counsel” resume their previously assigned role. Now Muhammad complains about the limitations and restrictions placed upon him during those two days. The only issue presented in this assignment of error is stated by Muhammad as follows: “whether the court improperly prohibited Muhammad from consulting with his standby counsel.”

Soon after Muhammad began representing himself, the Commonwealth objected to the extensive interaction between Muhammad and standby counsel. The Commonwealth complained that standby counsel was actually acting as co-counsel in contravention of the trial court's instructions. An exchange between the trial court and standby counsel appears to confirm the Commonwealth's concern. Standby counsel stated:

Mr. Muhammad has asked about things such as objections-what is hearsay? What is a leading question? and so on. And so he's inquired about that and the timing of objections and so on, which as the court knows is obviously crucial or else it's waived. That's the context of it. We'd say hearsay, and he knew the argument to make to Your Honor and same thing as far as leading questions. It is apparent from this exchange that standby counsel was doing far more than responding to inquiries made by Muhammad. Rather, as they admit, they were prompting him to make objections during the course of testimony.

The trial court indicated that Muhammad would not be permitted to have “hybrid” representation where standby counsel becomes co-counsel by extensive participation and direction of the defense. “ Faretta does not require a trial judge to permit ‘hybrid’ representation.” McKaskle v. Wiggins, 465 U.S. 168, 183, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). As Muhammad acknowledges in his brief, “[t]he court's solution to the perceived problem was to move standby counsel down the table, away from Mr. Muhammad, something that Mr. Muhammad had suggested.” Muhammad does not now complain that he could not have taken an extra step or two to consult with counsel. He cannot be heard to complain of a solution he proposed. There is no specific ruling of the trial court that Muhammad identifies as error. Muhammad points to no objection made by him concerning the trial court's direction or handling of the issue. The record reveals that Muhammad expressly agreed with the trial court's instructions to standby counsel. Upon review of the specific arguments made by Muhammad and the relevant portions of the record he identifies, we hold that the trial court did not abridge his rights under the Sixth Amendment to properly consult with standby counsel.

VII. Refusal to Permit Expert Healthcare Testimony at Sentencing

The trial court granted Muhammad's motion under the provisions of Code § 19.2-264.3:1 for the appointment of mental health experts to assist him in his defense. Thereafter, Muhammad gave notice of his intent to use expert psychiatric testimony at the sentencing phase to prove mitigating factors. In response, the Commonwealth moved the trial court for an order appointing an expert for the Commonwealth pursuant to Code § 19.2-264.3:1(F).

At the hearing on the Commonwealth's motion for the appointment of an expert, the trial court granted Muhammad's request that the Commonwealth's expert be prohibited from inquiring into circumstances of the crimes alleged or Muhammad's relationship with Malvo. This restriction was based upon Muhammad's declaration that he did not intend to present evidence that he acted under extreme mental disturbance or failed to appreciate the criminality of his conduct. At that time, the trial court advised Muhammad that if he refused to cooperate with the Commonwealth's expert, it could result in the exclusion of Muhammad's expert's testimony. Muhammad acknowledged to the trial court that he understood the requirements and the potential consequences for noncompliance.

Nonetheless, on October 8, 2003, Muhammad refused to be interviewed by the Commonwealth's expert without his counsel present. Also, he objected to the expert's use of a video camera during the interview. After a hearing on the matter, the trial court permitted counsel to be present at the interview by the Commonwealth's expert and further ruled that the interview could be recorded by video camera. Nonetheless, the following day, Muhammad refused to meet with the Commonwealth's expert under any circumstances.

In response, the Commonwealth moved the trial court under the provisions of Code § 19.2-264.3:1 to prohibit Muhammad from presenting expert testimony from his court appointed experts at sentencing. At the hearing, the trial court again directly addressed Muhammad concerning the potential effect of his refusal to cooperate with the Commonwealth's expert. Muhammad indicated that he understood and that he had made the choice not to cooperate. The trial court exercised its discretion under the statute and barred Muhammad from presenting expert testimony from his court appointed experts regarding mitigating factors at the sentencing proceeding.

Despite the trial court's ruling, at the conclusion of the evidence in the guilt phase of the trial, Muhammad moved the trial court to permit him to present expert testimony from one of his court appointed mental health experts, Dr. Cunningham, in the sentencing phase. Muhammad represented that Dr. Cunningham would not testify based upon anything he learned from his examination; rather, he would testify based upon statistical analyses about prison populations. Apparently, this testimony would be offered as relevant to the question of Muhammad's future dangerousness. The Commonwealth objected, but the trial court overruled the Commonwealth's objection at that time and invited Muhammad to present Dr. Cunningham's testimony outside the presence of the jury for a determination of its admissibility. Muhammad did not do so.

After all of the evidence had been presented to the jury in the sentencing phase and after both sides rested their case, Muhammad announced that he would present a proffer from Dr. Cunningham. An affidavit from Dr. Cunningham was thereafter submitted to the trial court.

In assignments of error 29, 75, and 76, Muhammad attacks various rulings of the trial court on this matter. Muhammad argues that it was an abuse of discretion for the trial court to deny him the opportunity to present expert testimony. He further states, in conclusory fashion, that the denial violated his constitutional rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments. He further complains that he was not able to present lay testimony in mitigation. Finally, he argues that, because of the notice of intent to use expert testimony in a limited fashion, the Commonwealth was not entitled to an expert evaluation of Muhammad.

Considering the Commonwealth's right to an evaluation of Muhammad, the trial court found, and Muhammad agreed, that the issue of notice of use of evidence in a limited fashion was not raised before the trial court ruled on the matter. It was raised for the first time in post trial proceedings. The trial court ruled that it was waived. Objections must be stated with reasonable certainty at the time of the trial court's ruling in order to be preserved for appellate review. This objection will not be considered on appeal. Rule 5:25.

Consideration of Muhammad's arguments on these matters requires a clear understanding of what the trial court ruled concerning these issues. The trial court ruled that Muhammad could not present expert testimony on mitigation factors at sentencing because of his refusal to abide by the trial court's order to submit to an evaluation by the Commonwealth. The trial court did not bar the presentation of non-expert testimony on this issue. Thereafter, Muhammad sought the ability to present limited expert testimony purporting not to be based upon expert interviews. The Commonwealth objected. The trial court overruled the Commonwealth's objection and gave Muhammad the opportunity to present evidence out of the presence of the jury that would allow the trial court to rule on its admissibility. Muhammad did not take advantage of this invitation. Only after all the evidence was presented at the sentencing phase and both parties rested their case did Muhammad offer an affidavit as a proffer of Dr. Cunningham's testimony. He may not be heard to complain about the exclusion of Dr. Cunningham's limited testimony when he did not give the trial court the contemporaneous opportunity to evaluate its admissibility. Rule 5:25.

Nothing in the trial court's ruling prohibited non-expert testimony on mitigating factors in the sentencing proceeding. Muhammad cites Lovitt v. Warden, 266 Va. 216, 257, 585 S.E.2d 801, 825-26 (2003), cert. denied, 541 U.S. 1006, 124 S.Ct. 2018, 158 L.Ed.2d 523 (2004), and suggests that somehow that case further prohibits such testimony in the absence of expert testimony. Nothing in Lovitt suggests such a bar.

Considering the main thrust of Muhammad's argument, we turn our attention to the claim that the trial court abused its discretion, and that its decision barring expert testimony on mitigation factors and the statutes that permit such a decision are unconstitutional. Muhammad makes no argument on brief that the statutes are overbroad or vague. His only argument is that their application to him under these circumstances violated various constitutional rights.

The trial court provided Muhammad with the experts he requested at state expense. The trial court granted Muhammad's request that his counsel be present during any evaluation by the Commonwealth. The trial court engaged Muhammad directly in court on multiple occasions concerning the potential consequences of his failure to cooperate with the evaluation. On these occasions, Muhammad affirmatively expressed his understanding and further acknowledged that he freely decided not to cooperate. After the trial court made its ruling, it even considered permitting expert mitigation testimony not based upon his own expert's interview with him. Muhammad did not avail himself of the opportunity.

Muhammad is correct that limiting the evidence that a criminal defendant may present in his defense implicates numerous constitutional rights. What Muhammad fails to appreciate is that he may, by his knowing and informed decisions, waive such rights. These rights may be as venerated as the right to a jury, the right to counsel, the right against self-incrimination, and the right to exclusion of evidence seized in an unconstitutional manner. As the Supreme Court recently noted, “Waiver of the right to counsel, as of constitutional rights in the criminal process generally, must be a ‘knowing, intelligent ac[t] done with sufficient awareness of the relevant circumstances.’ ” Iowa v. Tovar, 541 U.S. 77, 80, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004) (quoting Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)). We have no difficulty including the right to present mitigating testimony within the panoply of constitutional rights that may be waived by the accused.

Upon review of the record, we agree with the trial court that Muhammad's decision not to cooperate was knowingly and intelligently made. The real issue presented is whether the trial court's exercise of discretion was reasonable under the circumstances.

The detailed and balanced statutory scheme provided by Code § 19.2-264.3:1 anticipates decisions made by the accused and the Commonwealth regarding expert mental health evaluations and testimony regarding sentencing issues in a capital murder trial. One of those circumstances arises when the defendant gives notice of intent to present certain types of testimony at sentencing. In response, the Commonwealth may request an evaluation of the defendant. The statute explicitly provides that the trial court must “advise the defendant on the record in court that a refusal to cooperate with the Commonwealth's expert could result in exclusion of the defendant's expert evidence.” Code § 19.2-264.3:1(F)(1). The statute explicitly provides the remedy for lack of cooperation: “the court may admit evidence of such refusal or, in the discretion of the court, bar the defendant from presenting his expert evidence.” Code § 19.2-264.3:1(F)(2).

The Supreme Court has recognized that the prosecution has the right to a fair rebuttal of mental health evidence presented by the defendant. In Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987), the defendant challenged the introduction of evidence from a psychiatric report prepared upon joint motion of the defendant and the prosecution. The Court stated, “if a defendant requests such an evaluation or presents psychiatric evidence, then, at the very least, the prosecution may rebut this presentation with evidence from the reports of the examination that the defendant requested.” Id. at 422-23, 107 S.Ct. 2906.

We agree with the Commonwealth's characterization of the circumstances presented on this question. “By his own deliberate conduct, the defendant sought to gain an unfair benefit by obtaining an evaluation that the Commonwealth would be powerless to contest at trial either by meaningful cross-examination or by presenting its own expert testimony. The trial court's remedy thus was protective of the interests of all parties in a fair trial and was not punitive.” The trial court's ruling was not unreasonable, especially considering that it was willing to consider expert testimony from Dr. Cunningham not based upon interviews with Muhammad, but Muhammad did not avail himself of the opportunity. We hold that the trial court did not abuse its discretion by excluding Muhammad's expert witness testimony concerning mitigation factors at sentencing.

VIII. Discovery Issues

In assignments of error 1, 2, 3, 22, 98, and 99, Muhammad attacks the constitutionality of criminal discovery rules in Virginia, specific rulings of the trial court regarding discovery, the refusal of the trial court to permit ex parte application for expert witness assistance, and the refusal to grant a new trial upon “after-discovered” evidence of an alleged exculpatory nature. There is no merit to any of Muhammad's contentions.

Muhammad's claim that criminal discovery rules in Virginia are unconstitutional because they provide for limited discovery, has been previously decided. Bailey v. Commonwealth, 259 Va. 723, 736, 529 S.E.2d 570, 577, cert. denied, 531 U.S. 995, 121 S.Ct. 488, 148 L.Ed.2d 460 (2000); Walker v. Commonwealth, 258 Va. 54, 63, 515 S.E.2d 565, 570-71 (1999), cert. denied, 528 U.S. 1125, 120 S.Ct. 955, 145 L.Ed.2d 829 (2000). We see no reason to revisit this issue.

Additionally, the trial court did not err in denying certain specific requests for discovery: a. The trial court was correct in denying Muhammad's request 1(b) seeking “the specific questions, comments or statements of any person involved in the conversation with, or interrogation of, John Allen Muhammad, which brought about any response.” Rule 3A:11 requires production of the substance of the defendant's statements but does not require production of the statements sought by Muhammad in this request. Nonetheless, the trial court did order that if a video, audio, or otherwise transcribed interrogation existed, the entirety of such material would be provided to the defendant. b. The trial court was correct in denying Muhammad's request for “any contemporaneously made notes of statements attributed to the defendant.” Except for specifically designated items, subsection (b) of the Rule 3A:11 excludes the production of such notes. c. The trial court did not err in denying Muhammad's discovery request seeking “charged offenses, investigation or [items] which allege unadjudicated conduct.” Such items are not discoverable under Rule 3A:11; rather such information and items may be provided by motion under Code § 19.2-264.3:2. Similarly, Muhammad's request for evidence of unadjudicated criminal conduct in request 8 was properly denied under Rule 3A:11.

Muhammad alleges that it was error for the trial court to refuse to permit him to make ex parte application to the court “in order to seek funds and authorization to retain expert evaluations.” We have previously rejected this argument and find no reason to revisit the issue. Weeks v. Commonwealth, 248 Va. 460, 473, 450 S.E.2d 379, 388 (1994), cert. denied, 516 U.S. 829, 116 S.Ct. 100, 133 L.Ed.2d 55 (1995); Ramdass v. Commonwealth, 246 Va. 413, 422, 437 S.E.2d 566, 571 (1993), vacated on other grounds, 512 U.S. 1217, 114 S.Ct. 2701, 129 L.Ed.2d 830 (1994).

The final issue related to discovery questions involves Muhammad's assertion that the trial court erred in failing to grant him a new trial because the Commonwealth allegedly failed to provide exculpatory evidence to him pursuant to Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Malvo wrote certain letters from jail addressed to “Pacman,” a person who remains unidentified. Counsel for Muhammad state that they first became aware of the existence of these letters when they were the subject of testimony in Malvo's trial. The Commonwealth represented to the trial court that prosecutors in Muhammad's case were unaware of the letters before the post-trial motion for a new trial was filed.

Muhammad claims that the so-called “Pacman letters” are exculpatory in nature because of the issue raised by Code § 18.2-18, previously discussed herein, extending the potential applicability of the death sentence in a capital murder prosecution under the terrorism statute where there is proof that the accused “directed” or “ordered” the killing. Muhammad maintains that the letters show the independence of Malvo from him and demonstrate that Malvo could not have acted under Muhammad's “direction” or “order.”

We have previously stated: In Brady v. Maryland, 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215] (1963), the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87[, 83 S.Ct. 1194]. Whether evidence is material and exculpatory and, therefore, subject to disclosure under Brady is a decision left to the prosecution. Pennsylvania v. Ritchie, 480 U.S. 39, 59 [107 S.Ct. 989, 94 L.Ed.2d 40] (1987). Inherent in making this decision is the possibility that the prosecution will mischaracterize evidence, albeit in good faith, and withhold material exculpatory evidence which the defendant is entitled to have under the dictates of Brady. If the defendant does not receive such evidence, or if the defendant learns of the evidence at a point in the proceedings when he cannot effectively use it, his due process rights as enunciated in Brady are violated. United States v. Russell, 971 F.2d 1098 (4th Cir.1992); United States v. Shifflett, 798 F.Supp. 354 (1992); Read v. Virginia State Bar, 233 Va. 560, 564-65, 357 S.E.2d 544, 546-47 (1987). . . . . . Exculpatory evidence is material if there is a reasonable probability that the outcome of the proceeding would have been different had the evidence been disclosed to the defense. “A reasonable probability” is one which is sufficient to undermine confidence in the outcome of the proceeding. United States v. Bagley, 473 U.S. 667, 682 [105 S.Ct. 3375, 87 L.Ed.2d 481] (1985); Robinson v. Commonwealth, 231 Va. 142, 151, 341 S.E.2d 159, 164 (1986). Bowman v. Commonwealth, 248 Va. 130, 133, 445 S.E.2d 110, 111-12 (1994).

We need not resolve questions related to when the Commonwealth knew of the letters or whether the knowledge of Fairfax prosecutors should be imputed to Prince William prosecutors because, upon review of the record, we hold that the letters were not exculpatory in nature, were not likely to be admissible in Muhammad's case, were cumulative of other testimony, and the admission of such letters would not result in a “reasonable probability that the outcome of the proceeding would have been different had the evidence been disclosed to the defense.”

The letters do not significantly address the relationship between Malvo and Muhammad. They do suggest the ability of Malvo to think and act independently, a subject squarely at issue in Malvo's case because Malvo maintained that he was “brainwashed” by Muhammad. As previously discussed herein, Malvo's claim of insanity was demonstrably different than the issue of his action under “direction” or “order” of Muhammad.

Also, the ability of Malvo to think and act independently was amply revealed in other discovery given to Muhammad, such as transcripts of Malvo's confessions to police and drawings and writings Malvo made while in custody. In this respect the “Pacman letters” are merely cumulative in nature.

Muhammad argues that the result of the trial would have been different had the jury received the letters in evidence. The admissibility of the letters in Muhammad's case is far from established. Muhammad only states that they were admissible in Malvo's case, so they must be admissible in Muhammad's. However, in Malvo's case the letters may have satisfied an exception to the hearsay rule as statements of the defendant. Muhammad offers no theory of admissibility of this evidence in his trial that would overcome a hearsay objection.

In ruling on the motion for a new trial, the trial court stated: And I do not believe that the Pacman letters are such as to require the granting of a new trial. I believe that they are cumulative, corroborative and collateral ... they are not material, such that they would not produce an opposite result on the merits at another trial, or, in the other analysis, that they are not favorable evidence that could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.

Upon review of the record, we agree with the trial court. The trial court did not err in denying Muhammad's motion for a new trial based upon the “Pacman letters.”

IX. Jury Selection Issues

In assignments of error 16, 20, 30, and 31, Muhammad complains of error in the jury selection process. As a preliminary matter, he asserts that he cannot be tried by any jury in the United States for capital murder under the terrorism statute. He asserts that this unique charge alleging “intent to ... intimidate the civilian population at large” results in the “legal impossibility to impanel an impartial jury.” His logic is simply stated: because victims of the crime charged cannot be jurors in the case, no one from the “civilian population at large” can serve on his jury. Taking this tautology to its extreme application, Muhammad concludes, “The entire civilian population of Prince William County, and indeed, of the entire state and the United States, was alleged to be the victim.”

We need not address Muhammad's extensive citation of cases concerning prohibition of victims of a particular crime serving on the jury trying the crime at issue. The entirety of his argument is premised upon the status of jurors in this case as victims. They are not victims. The victim in the capital murder charge based upon terrorism is Dean Meyers. Arguably, Muhammad's victims under the facts of the case and the evidence presented also included Keenya Cook, Muhammad Rashid, Paul LaRuffa, Claudine Parker, Keely Adams, Hong Im Ballenger, Premkumar Walekar, Sara Ramos, Lori Lewis-Rivera, Paschal Charlot, Caroline Seawell, Iran Brown, Kenneth Bridges, Linda Franklin, Jeffrey Hopper, and Conrad Johnson.

The trial court's task was to empanel an impartial jury. This task was accomplished by the application of the requirements of carefully drafted statutes in Virginia and the use of voir dire in the selection of the panel. The trial court did not err in denying Muhammad's motion to dismiss the indictment because of a “legal impossibility” of empanelling a jury on the capital murder charge based upon terrorism.

With regard to the voir dire process itself, Muhammad maintains that the trial Court erred in precluding counsel from propounding certain questions and “limiting voir dire ... regarding capital punishment attitudes, pre-trial publicity and other issues.” Additionally, Muhammad makes general arguments attacking the process of “death qualification” of jurors.

In his brief, Muhammad does not argue that the trial court abused its discretion in refusing any question he proposed. In fact, Muhammad does not identify any voir dire question he was not permitted to ask. In this respect, his assignments of error on these issues are inadequately supported by argument on brief and are waived. Rule 5:17(c); Powell, 267 Va. at 135, 590 S.E.2d at 554. Muhammad does specifically complain in assignment of error 32 that the court erred in permitting the Commonwealth to question jurors during voir dire concerning the “concept of direction or order of a 42 year old over a 17 year old regarding the terrorism theory.” His argument consists of one sentence: “the Commonwealth should not have been able to telegraph its theory of direction or order.” This single sentence does not constitute sufficient argument. The remainder of the specific complaints in assignment of error 32 are not mentioned at all in the argument. Consequently, they are deemed waived. Rule 5:17(c); Powell, 267 Va. at 135, 590 S.E.2d at 554.

Finally, with regard to the qualification of the jury, Muhammad argues that the “death qualification” process itself is unconstitutional. There is no assignment of error concerning this issue; consequently, it is not properly before us. Rule 5:17(c); Powell, 267 Va. at 135, 590 S.E.2d at 554.

X. Evidentiary Issues
A. Sergeant Major Mark Spicer

In assignments of error 36, 37, and 62, Muhammad alleges that it was error for the trial court to permit the testimony of Sergeant Major Mark Spicer concerning the Commonwealth's sniper theory. Spicer's testimony came at a time in the trial proceedings when Muhammad was representing himself with the aid of standby counsel.

Muhammad maintains that the Commonwealth did not identify Spicer as an expert witness pursuant to the requirements of a pretrial order. He further argues that the “slides” used as demonstrative aids in his presentation constituted “reports” subject to disclosure under the pretrial order. The pertinent part of the pretrial order required the Commonwealth's production of “written reports of autopsies, ballistic tests, fingerprint analysis, handwriting analysis, blood, urine and breath tests and other written scientific reports and ... oral scientific reports that the Commonwealth intends to offer in its case in chief or that are exculpatory.” In consideration of Muhammad's motion for a new trial, the trial court held that the pretrial order did not require disclosure of all experts. It only required the disclosure of scientific tests and results. Spicer's slides were not in the nature of scientific tests and results.

Next, Muhammad asserts that Spicer's testimony was irrelevant and that he should not have been permitted to testify about “Mr. Muhammad's background, military career, and other factors not in evidence.” Upon review of the record, we hold that Muhammad did not make contemporaneous objections concerning these matters; consequently, they are not preserved for appeal and may not be considered. Rule 5:25. The trial court did not err in refusing to exclude Spicer from testifying or in refusing to grant Muhammad's motion for a new trial on these grounds.

B. Jeffrey Miller

Muhammad alleges in assignment of error 44 that the trial court erred in permitting Fairfax Police Officer Jeffrey Miller to “testify as to his opinion.” In argument, Muhammad maintains that Miller's testimony was expert opinion testimony and that it was based upon conjecture and surmise and facts not in evidence. Muhammad appears to complain in his brief, although not in the assignment of error, that he was not given notice of Miller's testimony in violation of the pretrial discovery order.

Muhammad did not object at trial on the basis that he had no notice of Miller's testimony. He did not object at trial that Miller's testimony was based upon conjecture or surmise or not supported by facts in evidence. He did not object at trial that Miller's testimony was expert in nature. We will not consider these arguments for the first time on appeal. Rule 5:25.

C. Edward Bender

In assignment of error 54, Muhammad argues that the trial court erred in admitting certain laboratory reports of the Virginia Department of Forensic Science through Edward Bender, a chemist at the Federal Bureau of Alcohol, Tobacco and Firearms. His assignment of error asserts that admission of the report constituted a “violation of a right to confront the person who undertook that analysis pursuant to Crawford v. Washington,” 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

Crawford had not been decided at the time of Muhammad's trial. No objection was made at trial based upon Sixth Amendment rights. Muhammad's objections were based upon compliance with Code § 19.2-187 not constitutional concerns. The objections on appeal based upon the Sixth Amendment and Crawford were not preserved at trial. We will not consider them. Rule 5:25.

D. Professor Steven Fuller

George Mason University Professor Steven Fuller testified over the defendant's objection about the economic impact of the 47 days of turmoil caused by the criminal conduct of Muhammad and Malvo. Assignment of error 60 complains that his testimony was permitted without notice required by the pretrial discovery order, “and further was without proper foundation or a basis in the record for such expert testimony to be admitted.”

The trial court found that Fuller did not generate any reports which were required to be produced by the pretrial discovery order. Although Muhammad claims in his brief that “the testimony was wholly irrelevant,” he also answers his own objection by stating, “[t]his witness was crucial to the Commonwealth theory that the October, [2002] shooting influenced the government.” Other than relevance, an issue he concedes, Muhammad does not offer any specific basis upon which this testimony was admitted without proper foundation. Upon review of the record, we cannot say that the trial court abused its discretion in permitting Fuller to testify.

E. Alleged Victim Impact Evidence Admitted During Guilt Phase

In assignments of error 38, 39, 40, 41, and 42, Muhammad makes various objections to the introduction of biographical information and backgrounds of various victims. Specifically, Muhammad objects to the trial court's admission of “so-called ‘photographs in life’ ” of various shooting victims and the admission of certain “911” calls, particularly that of Ted Franklin, husband of Linda Franklin.

At trial, Muhammad did not object to the admission of the “photographs in life” of various victims. He did raise an objection to the Commonwealth's use of the photographs during opening statement, but did not object to the photographs when admitted. Also Muhammad did not object to the admission of the first three “911” tapes received in evidence regarding the shooting of Meyers and LaRuffa. These objections are not preserved. Rule 5:25.

Three other “911” tapes were admitted into evidence. Muhammad objected to the tape related to Rashid's shooting as “irrelevant.” With regard to the tapes involving the shootings of Brown and Franklin, Muhammad objected that the tapes were irrelevant and cumulative. The trial court ruled that the tapes were “very relevant ... and material evidence.” Muhammad objected to the “911” tape of Franklin's husband as prejudicial. Upon consideration of the objection, the trial court ruled that the prejudicial impact was outweighed by its probative value. The trial court specifically noted that the tape was relevant to the issue of terror in the community.

Muhammad objected to a question asked of Meyers' brother regarding Meyers' military service. The trial court sustained the objection. Every objection made by Muhammad to the testimony of Parker's sister was sustained. Muhammad did not make a contemporaneous objection to the testimony of Ballenger's sister; rather, he waited until her testimony was concluded. Any objection not raised contemporaneously is waived. Rule 5:25. To the extent that a continuing or renewed objection was made to the introduction of a photograph of Ballenger, the trial court did not err in admitting Exhibit 137A. Similarly, Muhammad's objection to the testimony of Ballenger's widower was not timely. An objection during the testimony of Walekar's daughter resulted in a direction from the trial court to limit the testimony to biographical information. The objection made by Muhammad to the testimony of Ramos' widower was sustained. Before Lewis-Rivera's widower testified, Muhammad objected to what he expected to be “victim-impact” testimony. The court instructed the Commonwealth concerning proper limitations upon the testimony and, when it was offered, there was no objection. Every objection to the testimony of Charlot's daughter, Franklin's daughter, and Johnson's widow was sustained.

The record reveals that the trial court carefully limited the Commonwealth in the guilt phase to short biographical information about the victim and the manner in which the particular family member found out about the shooting. The testimony was not “victim-impact” testimony allowed in the penalty phase. It did not consist of evidence of economic or psychological loss, or grief. The trial court did not abuse its discretion in the admission of such evidence.

F. The Rashid Shooting

Muhammad alleges in assignment of error 46 that evidence of the robbery and shooting of Muhammad Rashid was immaterial and irrelevant to the Commonwealth's theories of the case. He also argues that the probative value of the evidence was outweighed by the prejudicial impact upon the jury.

At trial the Commonwealth explained the relevance of the evidence. Rashid was shot and wounded at the Three Roads Liquor Store. Rashid saw the Caprice outside the store before the shooting. He identified Malvo as the person who shot him with a handgun. At the same time that Malvo shot him, he was shot at with a rifle from a distance. The rifle shot missed its target. The handgun was the same weapon used to shoot and wound LaRuffa and the same weapon found at the scene in Montgomery, Alabama where Malvo dropped it after Parker and Adams had been shot with a high-powered rifle. The rifle used to wound and kill Parker and Adams at the same time that Malvo held the handgun during their robberies was the .223 caliber Bushmaster rifle recovered from the Caprice with Muhammad and Malvo.

The trial court did not abuse its discretion in the admission of this evidence because it demonstrated a “singular strong resemblance to the pattern of the offense charged,” Johnson v. Commonwealth, 259 Va. 654, 677, 529 S.E.2d 769, 782, cert. denied, 531 U.S. 981, 121 S.Ct. 432, 148 L.Ed.2d 439 (2000), and it provided significant links connecting Muhammad and Malvo to each other, to the weapons used, and supported the theories of the Commonwealth concerning the methodology of their cooperative criminal efforts.

G. Documents Related to the Caprice

During the testimony of Christopher O'Kupski, a used car salesman from New Jersey, the trial court admitted certain “paperwork” related to the ownership and transfer of title for the Caprice. In assignment of error 48, Muhammad argues that the trial court erred in admitting these documents because they were “not properly authenticated” and “were hearsay.” Exhibit 65 consisted of four documents: the temporary car tag, a registration application, a reassignment form, and the original title to the Caprice. Upon questioning by the trial court, the witness stated that he had “filled out” the documents, with the exception of the registration application which is a form regularly used by the New Jersey Division of Motor Vehicles. Assuming, without deciding that the admission of any or all of these documents was improper, the error would be harmless. The evidence was offered to show Muhammad's purchase of and connection to the Caprice. Considering O'Kupski's testimony apart from the documents themselves, and the extensive evidence of Muhammad's connection to the Caprice, if the trial court erred, such error was most certainly harmless error.

H. Charlene Anderson

Charlene Anderson, Muhammad's cousin, testified about her encounters with Muhammad and Malvo in Baton Rouge, Louisiana in August 2002. In assignments of error 49, 50, 51, and 62, Muhammad asserts that her testimony was irrelevant, that “the prejudicial value outweighed any probative assistance to the fact finder,” and that the Commonwealth was permitted to question Anderson on redirect beyond the scope of cross-examination.

Anderson testified that Muhammad told her that he and Malvo were on a mission for the military to recover explosives. Anderson was a law enforcement officer. Muhammad asked her to provide him with bullets. Anderson testified that Muhammad told her that Malvo was “highly trained.”

Muhammad objected to this testimony on the grounds that it was hearsay and irrelevant. The trial court overruled the objection on the grounds that it was not offered for the truth of its content, namely that Muhammad and Malvo were actually on a mission for the military and that Malvo actually was “highly trained.” The purpose for the testimony was to show Muhammad's attempt to obtain ammunition for his rifle shortly before the string of shootings began and also to show the nature of the relationship between Malvo and Muhammad. During cross-examination of Anderson, Muhammad elicited testimony suggesting that Muhammad and Malvo did not interact or talk to each other. On redirect, the trial court permitted the Commonwealth to ask Anderson about a conversation she overheard between Muhammad and Malvo.

Lastly, with respect to Anderson's testimony, Muhammad asserts that it was error to permit Anderson to describe the rifle Muhammad showed her. Muhammad made no such objection at trial. He may not advance this claim of error for the first time on appeal. Rule 5:25. Upon review of the record and upon the issues preserved for appeal, we hold that the trial court did not err in admitting Anderson's testimony. It was relevant and its probative value outweighed any claim of prejudicial effect upon the jury.

I. Demonstrative Evidence-Model of the Caprice Trunk and Video

At trial the Commonwealth offered demonstrative evidence utilizing a model of the trunk of the Caprice and a video demonstrating how a shooting could take place from the trunk. The use of demonstrative evidence to illustrate testimony is a matter entrusted to the sound discretion of the trial court. Mackall v. Commonwealth, 236 Va. 240, 254, 372 S.E.2d 759, 768 (1988), cert. denied, 492 U.S. 925, 109 S.Ct. 3261, 106 L.Ed.2d 607 (1989).

Muhammad claims in assignments of error 55, 56, 57, and 58 that the trial court erred in admitting this evidence because “the reconstruction was not complete,” it “was out of context,” and “did not include the materials in the trunk from the time of Mr. Muhammad's arrest or any specific incident.” Muhammad further argues that it was error to allow the jury to inspect the Caprice after viewing the demonstrative replica and the video. He further complains about the use of “police officer stand-ins” in the video and that the evidence presented invited the jury to speculate about what occurred in the shootings, particularly the shooting of Dean Meyers.

The evidence presented was not expert reconstructive opinion testimony. Rather it was demonstrative evidence, illustrative in nature of other evidence presented. Muhammad claims that the demonstration was not supportive of the Commonwealth's theory of the case nor based upon other evidence presented. We disagree with Muhammad.

Scientific evidence of the presence of nitroglycerine and gunshot residue in the trunk of the Caprice proved that gunshots were fired from the trunk. A witness testified that he saw a flash come from the car when Charlot was murdered. Muhammad and Malvo were seen in the Caprice immediately before the murder of Dean Meyers. Immediately after the murder of Dean Meyers, Muhammad was interviewed in the parking lot across the street and in the presence of the Caprice. Malvo was not seen at the parking lot, leaving the reasonable inference that Malvo was in the trunk. Demonstrative evidence concerning how a person could get from the passenger compartment to the trunk from the inside and how a person could shoot a rifle from within the trunk was relevant and helpful to the jury.

The trial court carefully considered the relevance of the demonstrative evidence and the foundation for its admissibility. The trial court did not abuse its discretion in permitting this demonstrative evidence followed by an actual inspection of the trunk of the Caprice.

J. Testimony Regarding Terror in the Community

Robert Saady, a convenience store operator in Ashland, Virginia testified at trial about the impact of the sniper shootings on his business, his employees, and other businesses in the Ashland area. Montgomery County Police Sergeant Robert Thompson testified at trial concerning the shootings in the Washington D.C. area. Muhammad argues in assignments of error 59 and 61 that Saady's testimony was “irrelevant, speculative, and immaterial,” and that Thompson's testimony was “cumulative, irrelevant and immaterial.” He argues that proof of actual fear in the community is not probative of Muhammad's intent.

School officials in three different school systems also testified about the impact of the sniper shooting upon personnel, students and parents, and the operation of the schools. However, the only assignments of error before this Court involve the testimony of Saady and Thompson.

With regard to Thompson, Muhammad objected only to specific questions not the overall nature of the testimony. None of those specific objections are made the subject of argument in his brief. With regard to Saady, Muhammad did object to the relevance of his testimony in its entirety. Section 18.2-46.4 required proof that Muhammad intended to “intimidate the civilian population at large or ... influence the conduct or activities of the government ... through intimidation.” It is an axiom of law and human behavior that one may infer that a person intends to produce the consequences reasonably anticipated from his acts. Wilson v. Commonwealth, 249 Va. 95, 101, 452 S.E.2d 669, 673, cert. denied, 516 U.S. 841, 116 S.Ct. 127, 133 L.Ed.2d 76 (1995); see also Mickens v. Commonwealth, 247 Va. 395, 408, 442 S.E.2d 678, 687, rev'd on other grounds, 513 U.S. 922, 115 S.Ct. 307, 130 L.Ed.2d 271 (1994); Green v. Commonwealth, 223 Va. 706, 711, 292 S.E.2d 605, 608 (1982); Barrett v. Commonwealth, 210 Va. 153, 156, 169 S.E.2d 449, 451 (1969). As such, testimony about what was actually and reasonably produced by Muhammad's conduct was relevant to prove his intent. The trial court did not err in permitting such testimony.

K. Motion to Quash Eyewitness Identifications

In assignment of error 25, Muhammad alleges that “the court erred in denying the motion to quash and suppress as unreliable various eyewitness identifications.” In his one paragraph argument in his brief, Muhammad offers insufficient argument in support of his assignment of error. It is waived. Rule 5:17(c); Powell, 267 Va. at 135, 590 S.E.2d at 554.

XI. Sentencing
A. Torture, Aggravated Battery, or Depravity of Mind [62] In assignment of error 12, Muhammad asserts that: It was error to deny the motion to preclude sentence of death based on vileness factor and allow the Commonwealth to base its request for the death sentence on the “vileness” factor, since there was no evidence of torture, aggravated battery, or depravity of mind.

Muhammad raised this issue in a pre-trial motion which the trial court took under advisement until the evidence had been presented. At the conclusion of the presentation of the evidence, Muhammad expressly stated that he objected to the case being presented to the jury based upon torture or aggravated battery. Muhammad's assignment of error is in the disjunctive. He claims that there was no evidence of torture, aggravated battery, or depravity of mind. He did not object to “depravity of mind” as a predicate finding for vileness. The trial court ruled that it would not include “torture” in the instructions. Muhammad's objections in the trial court do not preserve assignment of error 12. Rule 5:25; Rule 5:17.

B. Victim Impact Testimony

Muhammad argues in assignment of error 11 that it was error under the due process clause to permit victim impact testimony during the penalty phase of his trial. He argues that prior to 1998, the Virginia capital sentencing scheme “only contemplated the presentation of victim impact testimony to the judge prior to the imposition of sentence.” To the extent that this statement provides a separate grounds for his assignment of error, it is barred from review because the issue was not raised in the trial court. Rule 5:25. With respect to Muhammad's complaint about victim impact evidence presented to a jury, we have previously considered such claims and have rejected them. Beck v. Commonwealth, 253 Va. 373, 385, 484 S.E.2d 898, 906, cert. denied, 522 U.S. 1018, 118 S.Ct. 608, 139 L.Ed.2d 495 (1997); Weeks, 248 Va. at 476, 450 S.E.2d at 389. We see no reason to revisit our previous decisions.

C. Unadjudicated Criminal Conduct

Muhammad alleges in assignments of error 77, 78, 79, 80, 81, 82, and 83 that the trial court erred in admitting multiple instances of unadjudicated criminal conduct. As previously discussed, he has waived assignments of error 78, 79, 80, 82, and 83 for failure to adequately brief the issues. Rule 5:17(c). We will turn our attention to assignments of error 77 and 81. Assignment of error 77 states:

The court erred by allowing unadjudicated acts to be received into evidence by the jury without any standard of proof or particularized burden on the Commonwealth to prove such acts to a specific standard of proof in violation of Mr. Muhammad's right to due process under the Virginia and United States Constitutions.

As stated, assignment of error 77 is unspecific. We must look to other assignments of error to place his complaint in a particular context. The only specific issue involving unadjudicated criminal conduct properly before us on appeal is the subject of assignment of error 81 concerning testimony about an alleged escape attempt from the Prince William County Adult Detention Center.

The Commonwealth presented evidence of the attempted escape through two witnesses, without objection from the defendant. Only after the completion of all the evidence from the prosecution and the defense at the sentencing phase and after both parties had rested, did Muhammad move to strike the evidence of the attempted escape. The trial court properly denied the motion because it was untimely. In order to preserve an issue for appeal, an objection must be made contemporaneously or it is waived. Muhammad has failed to preserve assignments of error 77 and 81. Rule 5:25.

D. Testimony of Mildred Muhammad

In assignments of error 84 and 85, Muhammad asserts that the trial court erred in allowing Mildred Muhammad, (“Mildred”), the defendant's former wife, to testify about statements made to her by her lawyer in Tacoma, Washington and a statement made by their child, Taalibah.

Mildred testified that the lawyer representing her in a custody proceeding told her to leave town quickly because of fear that Muhammad would find her and kill her. Muhammad objected to this statement on the grounds of hearsay. The trial court overruled the objection because it was not offered for the truth of the matter asserted; rather, it was offered to show why Mildred left Washington State and moved to the suburbs of Washington, D.C. The trial court gave the jury a limiting instruction directing it that the evidence was to be considered only to prove that she moved because of the statement made by her lawyer. After further discussion with counsel, the court gave an additional limiting instruction drafted by Muhammad. Also, Mildred testified that her daughter, Taalibah, said to her that if Muhammad “gets out,” she was concerned that he would kill her mother. Muhammad objected on the grounds of hearsay.

Muhammad maintains on appeal that allowing such statements violated his Sixth Amendment right to confront witnesses against him and violated the rule established in Crawford. Crawford had not been decided at the time of Muhammad's trial. He made no objection based upon the Sixth Amendment to the testimony of his former wife. These issues will not be considered for the first time on appeal. Rule 5:25.

The trial court did not err in admitting Mildred's testimony regarding her lawyer's statement to her. It was not hearsay because it was not offered for the truth of the matter asserted. Chandler v. Graffeo, 268 Va. 673, 682, 604 S.E.2d 1, 5 (2004). A proper limiting instruction was given, not once, but twice. One of the instructions was drafted by Muhammad. A jury is presumed to have followed the instructions of the trial court. Green v. Young, 264 Va. 604, 611, 571 S.E.2d 135, 139 (2002) (citing Zafiro v. United States, 506 U.S. 534, 540, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993)).

With regard to Mildred's testimony about her daughter's statement to her, the record reveals a more complicated context. Muhammad objected on the grounds of hearsay and relevancy, not on Sixth Amendment grounds. It is significant that the Commonwealth did not seek to introduce Mildred's testimony about her daughter's statement until after the trial court, over the Commonwealth's objection, ruled that it would allow Muhammad to present to the jury several letters written to him from his children, including Taalibah, which gave the impression that the children had no fear of him. After considerable argument from counsel, the trial court ruled that all the letters Muhammad sought to introduce would be allowed and a single statement from Taalibah to her mother would also be allowed. The trial court ruled that all of this evidence was admissible pursuant to the state-of-mind exception to the hearsay rule. The Commonwealth also argued that Taalibah's statement should be independently admissible as rebuttal to Muhammad's introduction of the letters.

The nature of the evidence offered by Muhammad was to show his relationship with his children. He offered out of court statements in the form of letters from his children for this purpose. Similarly, the Commonwealth offered an out of court oral statement from Taalibah for the same purpose. Upon review of the record, we hold that, if the admission of Taalibah's statement was error, it was invited error. We will not “notice error which has been invited by the party seeking to take advantage thereof on appeal.” Saunders v. Commonwealth, 211 Va. 399, 400, 177 S.E.2d 637, 638 (1970); Clark v. Commonwealth, 202 Va. 787, 791, 120 S.E.2d 270, 273 (1961). Muhammad's introduction of evidence showing the state of mind of his children toward him-arguing that such proof was both relevant and not objectionable hearsay-surely invited evidence of a similar nature from the Commonwealth. Whether as evidence in its case in chief or as rebuttal evidence, the trial court did not err in permitting Mildred to testify about Taalibah's statement.

XII. Jury Instructions

In assignments of error 86, 87, 89, 90, 91, 92, 93, 94, and 95, Muhammad alleges defects in the instruction of the jury.

A. Aggravated Battery

Muhammad objected to the trial court's instruction to the jury that it could find the aggravating factor of vileness under Code § 19.2-264.2 from proof of aggravated battery in the death of Dean Meyers. Muhammad asserts that a single shot has never qualified as an aggravated battery. We have defined aggravated battery as “a battery which, qualitatively and quantitatively, is more culpable than the minimum necessary to accomplish an act of murder.” Smith v. Commonwealth, 219 Va. 455, 478, 248 S.E.2d 135, 149 (1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979). Muhammad asserts that, in a shooting case, this Court has always required more than one gunshot to satisfy the requirements of aggravated battery.

In Hedrick v. Commonwealth, 257 Va. 328, 513 S.E.2d 634, cert. denied, 528 U.S. 952, 120 S.Ct. 376, 145 L.Ed.2d 294 (1999), we noted that the clear language of Code § 19.2-264.2 demonstrates that “the term ‘vileness' includes three separate and distinct factors, with proof of any one factor being sufficient to support a finding of vileness and hence a sentence of death.” Id. at 341-42, 513 S.E.2d at 640. Those factors are torture, depravity of mind, or aggravated battery to the victim.

The significance and effect of Muhammad's argument attacking the aggravated battery instruction must be assessed in the context of the other jury instructions and the jury's actual findings. Jury instruction 14 dealt with the offense of “the killing of Dean Meyers as part of the killing of more than one person in a three-year period.” Jury instruction 14A dealt with the offense of “the killing of Dean Meyers in the commission or attempted commission of an act of terrorism.” Each of the instructions included direction to the jury that the penalty of death could not be imposed for either of the offenses unless the Commonwealth proved beyond a reasonable doubt at least one of the following aggravating circumstances: 1. That, after consideration of his history and background, there is a probability that he would commit criminal acts of violence that would constitute a continuing serious threat to society; or 2. That his conduct in committing the offense was outrageously or wantonly vile, horrible or inhuman, in that it involved depravity of mind or aggravated battery to the victim beyond the minimum necessary to accomplish the act of murder.

For each of the offenses, the jury's verdict forms expressly found that Muhammad “would commit criminal acts of violence that would constitute a continuing serious threat to society,” and that “the offense was outrageously or wantonly vile, horrible, or inhuman.” Additionally, each of the verdict forms expressed findings of both “[d]epravity of mind” and “[a]ggravated battery to the victim beyond the minimum necessary to accomplish the act of murder.” Based upon these multiple findings, the jury unanimously fixed Muhammad's punishment at death for each of the offenses.

Even if the trial court erred in granting an instruction based upon aggravated battery, the error would be harmless beyond a reasonable doubt. The jury's verdict of death for each of the offenses was predicated upon additional and independent findings of future dangerousness and vileness based upon depravity of mind.

B. Future Dangerousness Instruction [71] Muhammad argues in his brief that the future dangerousness instruction given is unconstitutionally vague. The Court can find no assignment of error that attacks this instruction on that basis. Furthermore, his one sentence conclusory argument is inadequate. We will not consider the argument. Rule 5:17(c).

C. Finding Instruction

In assignment of error 91, Muhammad alleges that the trial court erred in failing to instruct the jury “that the verdict be unanimous as to any aggravating factors.” Muhammad's argument on this point is a one-sentence repetition of his assignment of error. It is inadequate argument and will not be considered. Rule 5:17(c).

D. Life Without Parole

In assignments of error 87 and 90, Muhammad maintains that the trial court erred in granting the Commonwealth's proposed instructions “without including the ‘life without the possibility of parole’ language.” He further argues that the trial court should have granted his proposed instruction with such language. Once again, Muhammad, in one sentence conclusory arguments, simply repeats the language of the assignment of error and offers no argument. The assignments of error are deemed waived. Rule 5:17(c).

E. Remaining Issues Relating to Instructions Numerous other issues are waived by Muhammad for failure to make sufficient argument in his brief. He makes insufficient argument that: 1. The trial court should have granted his instruction K defining mitigation. Additionally, here the trial court did define mitigation, it simply refused to highlight any particular evidence as Muhammad wanted; 2. The trial court should have instructed the jury that it could consider life without parole in determining aggravating factors and as a mitigating factor; 3. The trial court should have given his instruction L because the jury was “left directionless” as to how to “weigh” mitigation evidence; 4. The trial court should have instructed the jury that the vileness factor applied only to Meyers' killing. Additionally, here the instruction offered was incorrect because the vileness factor could be found based upon depravity of mind as well; 5. The trial court should have granted his instruction T regarding mitigating evidence to be considered in weighing culpability and future violence. The entirety of his argument consists of the following: “The jury was entitled to this guidance.” 6. The trial court did not make it clear in instructions that the jury could impose life in prison even if it found aggravating factors. The record demonstrates that the jury was properly instructed on this matter.

For each of these matters (1-6), Muhammad fails to make sufficient argument in his brief. The matters are waived. Rule 5:17(c).

XIII. Pretrial Publicity and the Right to a Fair Trial

In assignments of error 5, 23, 24, and 28, Muhammad makes various arguments concerning alleged errors of the trial court concerning its handling of pretrial publicity. Muhammad argues that: 1. The trial court erred by denying his motion to issue a show cause order, quashing subpoenas related to seeking evidence of pretrial leaks of information concerning the investigation of Muhammad and Malvo, and denying a request for appointment of a special prosecutor to investigate pretrial leaks; 2. The trial court erred by denying Muhammad's motion to close a hearing on a motion in limine; 3. The trial court erred in failing to prevent information leaks and to take appropriate corrective action concerning the leaks; 4. The trial court erred in refusing to dismiss the charges against Muhammad based upon leaks of information; 5. The leaks “hindered the defendant's ability to seat a fair jury despite the change of venue.”

This case attracted extensive media coverage. Counsel for Muhammad and the Fairfax Commonwealth's Attorney agreed to a consent order in the Fairfax County Circuit Court, where Malvo's prosecution was pending, generally prohibiting law enforcement officials of the Fairfax County Police Department and its civilian employees from disclosing information in violation of the Department's own rules, namely, General Order 401.1. Among other things, General Order 401.1 and the consent order in Fairfax County Circuit Court specifically prohibit disclosure of evidence of statements, criminal records, opinions of guilt or innocence, testing and test results, and statements about expected testimony. Additionally, counsel for Muhammad and the Commonwealth's Attorney for Prince William County agreed that all discovery from the Commonwealth would be sealed to limit dissemination of information that might have an effect upon jury selection.

Due to continued concerns about allegations of leaks of information related to the investigation and prosecution of Muhammad and Malvo, Muhammad filed a motion for rule to show cause in the Prince William County Circuit Court requesting that the trial court determine the source of information appearing in the media concerning the Malvo and Muhammad cases which had been attributed to law enforcement sources, and take appropriate action. In the alternative, Muhammad requested that the trial court appoint a special prosecutor or investigator. The trial court denied the motion. A similar motion had been presented to the Circuit Court of Fairfax County and was denied.

Thereafter, Muhammad and the Prince William County Commonwealth's Attorney agreed to the entry of an order on August 5, 2003, providing in pertinent part:

Law enforcement employees, from all agencies working as members of the prosecution Task Force, or working with the Task Force, whether sworn officers/agents or civilian employees shall not disclose any information to the press or public related to the investigation leading to the arrests of John Allen Muhammad and Lee Boyd Malvo, and pending prosecution of John Allen Muhammad and Lee Boyd Malvo in Prince William and Fairfax County Circuit Courts.

Approximately two weeks before the commencement of Muhammad's trial, a book entitled “Sniper: Inside The Hunt For The Killers Who Terrorized The Nation,” was released to the public. This 237-page publication contained detailed information concerning the investigation of Muhammad and Malvo. Muhammad filed a motion to dismiss the charges or for other appropriate relief asserting that there had been a flagrant violation of the August 5, 2003 order by numerous and unknown law enforcement agents. In the motion, Muhammad did not fault the prosecutors in the case and did not argue that there had been any discovery violations under Rule 3A:11.

The trial court expressed its concern about the matter but disagreed regarding Muhammad's proposed remedies. In the absence of any violations of the discovery rules, the trial court declined to prohibit introduction of specified evidence of the Commonwealth. The trial court declined to order that the Commonwealth could not seek the death penalty. The trial court indicated that it would allow individual voir dire of potential jurors on the issue of pre-trial publicity. The trial court had already granted a motion for change of venue and the trial was scheduled to be held in Virginia Beach, Virginia.

Muhammad asserts that the trial court should have dismissed the charges, precluded the death penalty, or limited the introduction of evidence pursuant to the authority of Code § 19.2-265.4. However, this code section recites potential remedies for failure to provide discovery under Rule 3A:11. Muhammad expressly stated in his motion that no discovery violations under the rule had occurred.

In his motion, Muhammad does not suggest that the Commonwealth's Attorney's office of Prince William County was the source of leaks. Additionally, there is no evidence that the information contained in the book published before trial came from leaks after the August 5, 2003 order. The trial court noted that it was likely that most of the information in the book came from communications prior to the time the trial court was asked to intervene and prohibit disclosure of any information regarding the Muhammad and Malvo investigations.

In his brief on this matter, Muhammad cites one statute, which does not apply, and no cases, in support of his argument that Muhammad was not tried by a fair and impartial jury or that his trial was in any way tainted by pretrial publicity. Upon review of the record, we conclude that the trial court took appropriate action to limit the effect of pretrial publicity in this case. The trial court entered a consent order regarding sealing of discovery responses of the Commonwealth; when asked, the trial court entered the August 5, 2003 order prohibiting law enforcement and civilian employees of law enforcement agencies from disclosing to the media or the public any information concerning the investigation of Muhammad and Malvo; the trial court granted Muhammad's motion for a change of venue to a location away from the immediate zone of pretrial publicity; and, the trial court permitted individualized voir dire of potential jurors concerning pretrial publicity.

Muhammad does not cite any actual tainting of the jury selection process or any way in which his trial was compromised by pretrial publicity. He does not cite any particular consequences of the trial court's denial of a motion to close a hearing on a motion in limine or the trial court's refusal to issue show cause orders or appoint a special prosecutor to investigate leaks. It is most telling that at trial, of the 125 potential jurors questioned, only 8 were challenged on grounds that exposure to pretrial publicity made them inappropriate jurors. We hold that the trial court did not err with regard to any of the issues raised in Muhammad's assignments of error 5, 23, 24 and 28.

XIV. Miscellaneous Constitutional Challenges to the Death Penalty

In assignments of error 13, 21, and 26, Muhammad raises numerous issues relating to the constitutionality of the death sentence generally and as it is applied in Virginia. Support for many of his arguments is not found in his brief. Rather, Muhammad attempts to incorporate by reference various motions, memoranda, and argument made in the trial court. We have previously held that such a practice is impermissible. Schmitt, 262 Va. at 138, 547 S.E.2d at 194; Burns v. Commonwealth, 261 Va. 307, 319, 541 S.E.2d 872, 881, cert. denied, 534 U.S. 1043, 122 S.Ct. 621, 151 L.Ed.2d 542 (2001). We will not consider such arguments. They are waived. Rule 5:17(c).

Other matters raised in these assignments of error and argued in Muhammad's brief have been previously decided by this Court:

(1) Virginia statutes fail to provide meaningful guidance to the jury because the aggravating factors are vague, rejected in Jackson, 267 Va. at 205-06, 590 S.E.2d at 535 (dangerousness); Powell, 267 Va. at 136, 590 S.E.2d at 554 (both); Wolfe, 265 Va. at 208, 576 S.E.2d at 480;

(2) The Virginia scheme fails to provide the jury with guidance regarding its consideration of mitigating evidence, rejected in Buchanan v. Angelone, 522 U.S. 269, 275-76 [118 S.Ct. 757, 139 L.Ed.2d 702] (1998); Jackson, 267 Va. at 206, 590 S.E.2d at 536; Johnson, 267 Va. at 69, 591 S.E.2d at 56; Jackson v. Commonwealth, 266 Va. 423, 429, 587 S.E.2d 532, 538 (2003); Lovitt, 260 Va. at 508, 537 S.E.2d at 874;

(3) The Commonwealth is permitted to prove future dangerousness by evidence of unadjudicated criminal conduct without any standard of proof, rejected in Jackson, 267 Va. at 206, 590 S.E.2d at 536; Powell, 267 Va. at 136, 590 S.E.2d at 554; Johnson, 267 Va. at 70, 591 S.E.2d at 56; Bell v. Commonwealth, 264 Va. 172, 203, 563 S.E.2d 695, 716 (2002), cert. denied, 537 U.S. 1123 [123 S.Ct. 860, 154 L.Ed.2d 805] (2003). Additionally, we note that all Muhammad's assignments of error regarding unadjudicated criminal conduct have been rejected either because they were not preserved in the trial court (Rule 5:25) or they have been inadequately briefed (Rule 5:17(c)). Consequently, no issues related to unadjudicated criminal conduct are properly before the Court.

(4) The statute allows, but does not require, that a sentence of death be set aside upon a showing of good cause and permits the court to consider hearsay in a post-sentence report, rejected in Jackson, 267 Va. at 206, 590 S.E.2d at 536; Powell, 267 Va. at 136, 590 S.E.2d at 555; Johnson, 267 Va. at 70, 591 S.E.2d at 56; Jackson, 266 Va. at 430, 587 S.E.2d at 539;

(5) This Court fails to conduct an adequate proportionality review and passion/prejudice review, rejected in Jackson, 267 Va. at 206, 590 S.E.2d at 536; Powell, 267 Va. at 136, 590 S.E.2d at 555; Johnson, 267 Va. at 70, 591 S.E.2d at 56.

XV. Statutory Review

Muhammad does not argue that his sentences of death are excessive, arbitrarily imposed, or disproportionate to other similar cases. Nonetheless, pursuant to Code § 17.1-313(C)(2), we must conduct a review of these issues.

Upon review of the record, we conclude that the trial court conducted the proceedings related to this case with patience and fairness. Muhammad was given access to the trial court to present each and every issue he desired to present and was entitled to present. The jury selection process was untainted by pretrial publicity. The trial court's granting of the motion to change venue provided additional protection to the right of the defendant to a fair trial. The record contains no reversible error. Simply stated, we find not even a hint of arbitrariness or prejudice in the conduct of the trial or the jury's imposition of the sentences of death.

Our proportionality review is not undertaken to “insure complete symmetry among all death penalty cases.” Orbe v. Commonwealth, 258 Va. 390, 405, 519 S.E.2d 808, 817 (1999), cert. denied, 529 U.S. 1113, 120 S.Ct. 1970, 146 L.Ed.2d 800 (2000). The review we employ is done to “identify and invalidate the aberrant death sentence.” Id.

With regard to the death sentences imposed for the killing of more than one person in three years or in the same act or transaction we have reviewed our cases involving the killing of two or more people. Of the fourteen cases in which the death sentence was given, five involved more than two killings. Buchanan v. Commonwealth, 238 Va. 389, 384 S.E.2d 757 (1989), cert. denied, 493 U.S. 1063, 110 S.Ct. 880, 107 L.Ed.2d 963 (1990) (four victims); Barnes v. Commonwealth, 234 Va. 130, 360 S.E.2d 196 (1987), cert. denied, 484 U.S. 1036, 108 S.Ct. 763, 98 L.Ed.2d 779 (1988) (two victims); Davidson v. Commonwealth, 244 Va. 129, 419 S.E.2d 656, cert. denied, 506 U.S. 959, 113 S.Ct. 423, 121 L.Ed.2d 345 (1992) (three victims); Thomas v. Commonwealth, 244 Va. 1, 419 S.E.2d 606, cert. denied, 506 U.S. 958, 113 S.Ct. 421, 121 L.Ed.2d 343 (1992) (two victims); Stewart v. Commonwealth, 245 Va. 222, 427 S.E.2d 394, cert. denied, 510 U.S. 848, 114 S.Ct. 143, 126 L.Ed.2d 105 (1993) (two victims); Burket v. Commonwealth, 248 Va. 596, 450 S.E.2d 124 (1994), cert. denied, 514 U.S. 1053, 115 S.Ct. 1433, 131 L.Ed.2d 314 (1995) (two victims); Goins v. Commonwealth, 251 Va. 442, 470 S.E.2d 114, cert. denied, 519 U.S. 887, 117 S.Ct. 222, 136 L.Ed.2d 154 (1996) (five victims plus the death of a fetus); Kasi v. Commonwealth, 256 Va. 407, 508 S.E.2d 57 (1998), cert. denied, 527 U.S. 1038, 119 S.Ct. 2399, 144 L.Ed.2d 798 (1999) (two victims); Bramblett v. Commonwealth, 257 Va. 263, 513 S.E.2d 400, cert. denied, 528 U.S. 952, 120 S.Ct. 376, 145 L.Ed.2d 293 (1999) (four victims); Walker v. Commonwealth, 258 Va. 54, 515 S.E.2d 565 (1999), cert. denied, 528 U.S. 1125, 120 S.Ct. 955, 145 L.Ed.2d 829 (2000) (two victims); Zirkle v. Commonwealth, 262 Va. 631, 553 S.E.2d 520 (2001) (two victims); Hudson v. Commonwealth, 267 Va. 29, 590 S.E.2d 362 (2004) (three victims); Elliott v. Commonwealth, 267 Va. 396, 593 S.E.2d 270 (2004), cert. denied, 543 U.S. 1081, 125 S.Ct. 875, 160 L.Ed.2d 825 (2005) (two victims); Winston v. Commonwealth, 268 Va. 564, 604 S.E.2d 21 (2004) (two victims).

In the cases in which the death sentence was sought but a life sentence was given, of the fourteen cases only four involved the killing of more than two persons and three of those cases had unusual circumstances. Woodfin v. Commonwealth, 236 Va. 89, 372 S.E.2d 377 (1988), cert. denied, 490 U.S. 1009, 109 S.Ct. 1649, 104 L.Ed.2d 163 (1989) (two victims); Mundy v. Commonwealth, 11 Va.App. 461, 390 S.E.2d 525 (1990), cert. denied, 502 U.S. 840, 112 S.Ct. 127, 116 L.Ed.2d 95 (1991) (two victims); Moran v. Commonwealth, No. 1708-90-3 (Va.Ct.App. Nov. 5, 1991) (two victims); Stephenson v. Commonwealth, No.2080-91-1 (Va.Ct.App. Jan. 11, 1993) (two victims); Hamlin v. Commonwealth, No. 1279-99-2, 2000 WL 459699 (Va.Ct.App.Apr. 25, 2000) (four victims killed by arson); Novak v. Commonwealth, 20 Va.App. 373, 457 S.E.2d 402 (1995), cert. denied, 519 U.S. 1006, 117 S.Ct. 507, 136 L.Ed.2d 397 (1996) (two victims); Pritchett v. Commonwealth, No.1968-95-3 (Va.Ct.App. Apr. 1, 1996) (two victims); Owens v. Commonwealth, No. 2259-95-1, 1996 WL 666739 (Va.Ct.App. Nov. 19, 1996) (four victims; defendant was 16 years old at time of offense); Williams v. Commonwealth, No. 2423-96-2, 1997 WL 666063 (Va.Ct.App. Oct. 28, 1997) (three victims; defendant was alleged to be brain-damaged and border-line mentally retarded); Stoneman v. Commonwealth, No. 3069-96-3, 1998 WL 295932 (Va.Ct.App. June 9, 1998) (two victims); Evans v. Commonwealth, No.2089-99-3 (Va.Ct.App. Apr. 26, 2000) (two victims); Burlile v. Commonwealth, 261 Va. 501, 544 S.E.2d 360 (2001) (two victims); Hairston v. Commonwealth, No. 1722-01-3 (Va.Ct.App. Mar. 28, 2002) (two victims); Cooper v. Commonwealth, No. 0819-03-4, 2004 WL 1876416 (Va.Ct.App. Aug. 24, 2004) (three victims).

Additionally, we reviewed two cases in which the Commonwealth did not seek the death penalty for the killing of two or more persons. In those two cases there were only two murders in each case. Smith v. Commonwealth, No. 0628-93-1 (Va.Ct.App. Feb. 1, 1994) (two victims); Hobbs v. Commonwealth, No. 1301-99-1 (Va.Ct.App. Mar. 17, 2000) (two victims).

Apart from the Cooper case, except where unusual circumstances existed, all the capital prosecutions in Virginia that we have reviewed wherein more than two people were murdered and the prosecution was based upon Code § 18.2-31(7) or (8) resulted in the death penalty being imposed.

This case represents the first capital murder case with a death sentence under the terrorism statute. We are unaware of any state that has reviewed a death sentence predicated upon a similar provision. We think the death penalty is not an excessive nor a disproportionate penalty for a case with evidence of ten murders and six malicious woundings. Similarly, the evidence presented on the terrorism count independently supports the imposition of the death penalty.

Muhammad's crimes cannot be compared to any other case in the Commonwealth. The evidence of vileness and future dangerousness in support of the jury's verdict justifies its sanction of death.

Muhammad with his sniper team partner, Malvo, randomly selected innocent victims. With calculation, extensive planning, premeditation, and ruthless disregard for life, Muhammad carried out his cruel scheme of terror. He did so by employing stealth and secrecy using a sniper methodology that put his victims at great risk while reducing his own. He employed a weapon with truly awesome power to inflict massive injury upon his victims. Muhammad recruited a younger boy, Malvo, and carefully trained and guided him in this murderous enterprise.

His victims came from all walks of life who were engaged in everyday pursuits when their lives were tragically ended or altered. Paul LaRuffa, Muhammad Rashid, Hong Im Ballenger, Claudine Parker, and Kelly Adams were closing and leaving their places of business. Sarah Ramos was sitting on a bench in front of a store. Lori Lewis-Rivera was vacuuming her car at a gas station. Paschal Charlot was crossing an intersection as a pedestrian. Caroline Seawell and Linda Franklin were putting packages in their respective automobiles. Iran Brown was walking to school. Dean Meyers, Kenneth Bridges, and Premkumar Walekar were putting fuel in their vehicles at gasoline stations. Jeffrey Hopper was leaving a restaurant after a meal. Conrad Johnson, a bus driver, was standing in the doorway of his bus. Muhammad inflicted death or massive injury upon these victims as he pursued his mission of terror.

Muhammad's threats to those within the communities he stalked including the warning, “Your children are not safe anywhere at anytime.” He communicated his desire to extort money from the government through the demand to deposit ten million dollars in an account connected to a card for accessing the account through automated teller machines. Whatever else may have been his intentions, he certainly intended to intimidate the civilian population and to influence the conduct and activities of government. He did so with breathtaking cruelty. If society's ultimate penalty should be reserved for the most heinous offenses, accompanied by proof of vileness or future dangerousness, then surely, this case qualifies.

XVI. Conclusion

Upon review of the record and upon consideration of the arguments presented, we find no reversible error in the judgment of the trial court. Further, we find no reason to commute or set aside the sentences of death. We will affirm the judgment of the trial court. Affirmed.

Justice KINSER, concurring. Justice AGEE, with whom Justice LACY and Justice KOONTZ join, dissenting in part and concurring in part.

Muhammad v. Warden of Sussex I State Prison, 274 Va. 3, 646 S.E.2d 182 (Va. 2007) (State Habeas).

Background: Following affirmance of his murder convictions and death sentence, 269 Va. 451, 619 S.E.2d 16, inmate filed a petition for a writ of habeas corpus. Warden filed a motion to dismiss, and inmate replied.

Holdings: The Supreme Court held that: (1) defendant failed to establish the existence of any Brady violations during his capital trial, and (2) defendant's ineffective assistance of counsel claims satisfied neither the “performance” nor the “prejudice” prong of the two-part Strickland test. Petition dismissed.

Upon consideration of the petition for a writ of habeas corpus filed July 31, 2006, the respondent's motion to dismiss, and the petitioner's reply to that motion, the Court is of the opinion that the motion should be granted and the writ should not be issued.

John Allen Muhammad was convicted in the Circuit Court of Prince William County of one count each of conspiracy to commit capital murder, use of a firearm while committing or attempting to commit capital murder, and two counts of capital murder for the murder of Dean Meyers as more than one murder in three years, and the murder of Dean Meyers in the commission of an act of terrorism. Finding that the Commonwealth had proven the aggravating factors of “future dangerousness” and “vileness” beyond a reasonable doubt, see Code § 19.2-264.2, the jury fixed Muhammad's sentence at death on each of the capital murder convictions and fixed sentences totaling thirteen years' imprisonment for the non-capital convictions. The trial court sentenced Muhammad in accordance with the jury's verdict. This Court affirmed Muhammad's convictions and the sentences of death. Muhammad v. Commonwealth, 269 Va. 451, 619 S.E.2d 16 (2005), cert. denied, 547 U.S. 1136, 126 S.Ct. 2035, 164 L.Ed.2d 794 (2006).

In claim (I), petitioner alleges that his Fifth, Eighth FN1 and Fourteenth Amendment rights, and corresponding rights under the Virginia Constitution were violated by the Commonwealth's failure to disclose exculpatory information to petitioner as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

FN1. The Court rejects petitioner's claim that the Eighth Amendment of the United States Constitution supports his claim that he should be granted habeas relief because the Commonwealth failed to disclose allegedly exculpatory information. Petitioner has failed to establish that such a failure implicates the Eighth Amendment.

As the Court has stated previously, and reiterated in our opinion affirming petitioner's conviction and sentence of death: In Brady [ ], the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id. at 87, 83 S.Ct. 1194. Whether evidence is material and exculpatory and, therefore, subject to disclosure under Brady is a decision left to the prosecution. Pennsylvania v. Ritchie, 480 U.S. 39, 59, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). Inherent in making this decision is the possibility that the prosecution will mischaracterize evidence, albeit in good faith, and withhold material exculpatory evidence which the defendant is entitled to have under the dictates of Brady. If the defendant does not receive such evidence, or if the defendant learns of the evidence at a point in the proceedings when he cannot effectively use it, his due process rights as enunciated in Brady are violated. United States v. Russell, 971 F.2d 1098 (4th Cir.1992); United States v. Shifflett, 798 F.Supp. 354 (1992); Read v. Virginia State Bar, 233 Va. 560, 564-65, 357 S.E.2d 544, 546-47 (1987).

Exculpatory evidence is material if there is a reasonable probability that the outcome of the proceeding would have been different had the evidence been disclosed to the defense. “A reasonable probability” is one which is sufficient to undermine confidence in the outcome of the proceeding. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); Robinson v. Commonwealth, 231 Va. 142, 151, 341 S.E.2d 159, 164 (1986). Muhammad, 269 Va. at 510, 619 S.E.2d at 49-50 (quoting Bowman v. Commonwealth, 248 Va. 130, 133, 445 S.E.2d 110, 111-12 (1994)).

In the first portion of claim (I), petitioner contends that the Commonwealth was required to, but did not, disclose an FBI Criminal Investigative Analysis, which stated in part: “There is likely only one offender. Sniper attacks are generally a solitary type of murder. It would be extremely unusual for there to be multiple offenders in this series of attacks.” Petitioner states he did not receive this information until his prosecution in Maryland on related offenses.

The Court need not resolve questions related to when the Commonwealth knew of the analysis, whether the knowledge of the FBI should be imputed to Prince William prosecutors, or whether the analysis was material because the Court holds that the analysis was not favorable to petitioner. The record, including the full text of the analysis, demonstrates that the paragraph describing “offender characteristics” upon which petitioner relies actually states: There is likely only one offender. Sniper type attacks are generally a solitary type of murder. It would be extremely unusual for there to be multiple offenders involved in this series of attacks. If there is a second offender, he is not likely to be an equal partner in these crimes, and would be subservient to the primary offender. (Emphasis added).

In whole, this statement supports the evidence admitted at trial and the Commonwealth's theory of the case. Therefore, the portion of the statement, taken in context, is not exculpatory.

In another portion of claim (I), petitioner contends that the Commonwealth was required to, but did not, disclose a memorandum attacking the credibility of a witness to the shooting of Baton Rouge, Louisiana citizen, Hong Im Ballenger. The memorandum was prepared by the Baton Rouge Police Department in response to a news report, which aired on a Louisiana television station. The news report referred to the witness by a pseudonym, “Frances” and the memorandum upon which petitioner relies includes a transcript of the report and written “factual” responses. Petitioner believes that “Frances” and Ingrid Shaw, who testified concerning the Ballenger murder during his trial, are the same person. Petitioner states he did not receive this memorandum until his prosecution in Maryland on related offenses.

The Court need not resolve questions related to when the Commonwealth knew of the analysis, whether the knowledge of the Baton Rouge Police Department should be imputed to Prince William prosecutors, or whether the memorandum was material because the Court holds that petitioner has failed to establish that the memorandum was evidence favorable to petitioner. Petitioner speculates, but fails to prove, that “Frances” and Ingrid Shaw are the same person. Furthermore, evidence at trial proved that the bullet that killed Ballenger was fired from petitioner's Bushmaster rifle.

In another portion of claim (I), petitioner contends that the Commonwealth was required to, but did not disclose the development of a suspect, Louis Robinson, in the Ballenger murder. Petitioner includes page three from supplement number eight to the police report in the Ballenger investigation, which indicates that the Baton Rouge police found Robinson as a result of bloodhound tracking that ended between Robinson's house and another house. When police encountered Robinson the next day, he had a knife in his hand, which, along with another knife and pair of tennis shoes with blood-like stains, was seized.

The Court need not resolve questions related to when the Commonwealth knew of this information, whether the knowledge of the Baton Rouge Police Department should be imputed to Prince William prosecutors, or whether this information was material because the Court holds that this information was not favorable to petitioner. The record, including the full police report, demonstrates that, although Robinson was a suspect, police did not believe he was the killer because the stains on his tennis shoes were not blood, Robinson had no gun shot residue on his hands, and Shaw did not identify him in a photographic line-up. Furthermore, evidence at trial proved that a bullet fired from petitioner's Bushmaster rifle killed Ballenger.

In another portion of claim (I), petitioner contends the Commonwealth was required to, but did not, disclose the contents of supplement number sixteen to the Baton Rouge investigation file concerning the Ballenger murder. Supplement sixteen contains a summary of the numerous suspects and tips received by the Baton Rouge Police Department, the investigation concerning these suspects, and the resolution of the case.

The Court need not resolve questions related to when the Commonwealth knew of this information, whether the knowledge of the Baton Rouge Police Department should be imputed to Prince William prosecutors, or whether this information was material because the Court holds that this information was not favorable to petitioner. The record, including the full police report, demonstrates that police identified several suspects during the course of the investigation, that each suspect was eliminated as a possibility, and that, after petitioner was arrested for the Virginia and Maryland sniper shootings, it was determined that he and Lee Boyd Malvo had been in Baton Rouge at the time of the Ballenger murder and ballistics tests confirmed that the bullet which killed Ballenger was fired from the Bushmaster rifle used in the sniper attacks.

In another portion of claim (I), petitioner contends that the Commonwealth was required to, but did not, disclose the contents of investigative reports in connection with the wounding of Caroline Seawell. The record, including the trial transcript, demonstrates that a witness to the Seawell wounding, Alex Jones, witnessed the shooting while waiting for Seawell's parking place. Jones initially got out of his car to check on Seawell and then decided to get help and to protect himself and his wife. He returned to his car and drove it in a zigzag pattern through the parking lot until he drove up behind a “dirty” Chevrolet being driven very slowly. Jones could not drive around the car and had to drive slowly behind it until the car turned one direction and Jones was able to turn the opposite direction and drive to a local furniture store to get help.

While Jones was behind the car, he noticed that the windows were too dark for the interior of the car to be seen, and Jones was frightened and “felt” that the car did not belong there. He testified that he noted the license plates were from New Jersey and that he “was trying to get the numbers but [ ] was a little frightened because [he] was only about a half a car away, and [he] didn't want anybody in the car-...-[he] didn't want to give whoever was looking at [him] the impression that [he] was trying to get their license plate....”

On cross-examination, after having been shown close-up photographs of the vehicle, Jones testified that he was about 80% sure the picture was of the vehicle he had seen because he “kind of remember[ed] those letters; but that was the car.” Jones admitted he had did not tell the police officers about the three letters and that the first time he told anyone about remembering the letters was that moment at trial. Petitioner contends the Commonwealth should have provided the FBI report that indicated that Jones “could provide no additional information about the license plate number” other than that it was a New Jersey license plate.

The Court need not resolve questions related to whether the knowledge of the FBI should be imputed to Prince William prosecutors, or whether this information was material because the Court holds that this information was not favorable to petitioner. The record, including the trial transcript and the FBI report proffered by petitioner, demonstrates that the witness was not expected to testify concerning the license plate number. As expected, the witness testified on direct examination that he tried to get the number but was too frightened; and that after being shown the picture of the license plate and “remembering” the letters on cross-examination, the witness admitted he had never informed the police that he knew the letters of the license plate number. The FBI report is consistent with the witness' testimony. The petitioner was able to successfully have the witness testify that he did not previously inform the FBI of his memory. Furthermore, the evidence at trial proved that a bullet fired from petitioner's Bushmaster rifle wounded Seawell.

In another portion of claim (I), petitioner contends that the Commonwealth was required to, but did not, disclose the contents of investigation reports in connection with the shooting death of Kenneth Bridges in Spotsylvania County. The record, including the trial transcript, demonstrates that a witness, Christine Goodwin, saw the Chevrolet Caprice parked at an odd angle at the Exxon station where Bridges was killed. She paid special attention to this car because it had New Jersey plates and was parked at an odd angle in a corner of the lot, the paint was peeling, and the windows were covered with a dark tint, such that she could not see the interior, except for the dashboard, which was strewn with papers on the passenger side. Goodwin was nervous about the car and almost stopped getting gas, but a police cruiser pulled into the lot and she felt safer.

Later after the shooting was made public and Goodwin saw a report that the police were seeking a Chevrolet Caprice, she contacted the hotline. On cross-examination, Goodwin noted that she read the license number and it began with the letter “N” and that she had made a mental note of it. Petitioner contends the Commonwealth should have provided a Spotsylvania County police report, which indicated that Goodwin “could not remember any of the tag number.”

The Court need not resolve questions related to whether the knowledge of the Spotsylvania Sheriff's Office should be imputed to Prince William prosecutors, or whether this information was material because the Court holds that this information was not favorable to petitioner. The record, including the trial transcript and the report proffered by petitioner, demonstrates that the witness was not expected to testify concerning the license plate number and that, as expected, the witness testified on direct examination that she recognized the car by its description and because it bore license plates from New Jersey. It was not until cross-examination after the witness was shown pictures of the car that she testified she “remembered” the “N.” Furthermore, evidence at trial proved that a bullet fired from petitioner's Bushmaster rifle killed Bridges.

In another portion of claim (I), petitioner contends the Commonwealth was required to, but did not, disclose the contents of investigative reports in connection with the wounding of Kellie Adams and the death of Claudine Parker in Montgomery, Alabama. The record, including the trial transcript, demonstrates that James A. Gray was standing across the highway from the location of the shooting and took chase of Malvo after it appeared that Malvo was going to get away from police officers. Gray chased Malvo through a ditch and attempted to “cut him off” from the path he was running, eventually coming face-to-face with Malvo before losing him. Gray testified that, at the time, Malvo did not appear to be a black man, but instead appeared to be “very fair” and possibly bi-racial. Gray was later called back to Montgomery to look at a photo line-up, from which Gray picked out Malvo's picture. Gray testified that he told the police officers that the person in the picture was not the right color. Defense counsel asked Gray if he stated the picture was “a good likeness” to which Gray admitted he “might have said that.”

Petitioner contends that he was unaware that Gray had described the person he chased as a black male who was holding a pistol, as documented in a report prepared by Detective W.D. Favor of the Montgomery Police Department. Petitioner contends further that Gray told Detective Favor conflicting information later that same day. The record, including the exhibits proffered by petitioner, demonstrates that Detective Favor prepared a report detailing his investigation in which he stated that Gray had come to the police station at approximately 3:30 p.m. and in which Detective Favor reports the contents of Gray's statement to him. The transcript of the statement made “later that day” to which petitioner refers, indicates that the interview with Gray actually began at 4:06 p.m.

Contrary to petitioner's contention, the Court finds that the report written by Detective Favor summarizes the interview he conducted with Gray, and that the references to Gray's alleged assertion that he was chasing a black man holding a pistol are a result of Favor's inaccurate recollection of the statements actually made by Gray and reflected in the transcript of the interview. The portions of Detective Favor's recollection, which are not supported by the transcribed version of the interview, do not constitute exculpatory evidence because they would have been inadmissible and would not have led to the discovery of exculpatory evidence as evidenced by Gray's actual statements to Favor and his consistent testimony.

Petitioner further contends that the prosecutor should have provided him with a copy of Gray's October 24, 2002 interview during which he selected Malvo's photograph from a photo line-up. The record, including the trial transcript, demonstrates that petitioner's attorney used the transcript of the October 24, 2002 interview in his cross-examination of Gray and quoted directly from it. Thus, this evidence was not withheld from petitioner and does not constitute a Brady violation.

Finally, petitioner contends that the prosecution should have provided to him the statements made by Clyde Wilson, a man who was with Gray when the shooting occurred, but whom Gray did not know, and who also gave chase. Petitioner argues that Gray's testimony could have been impeached by evidence that Clyde Wilson described the suspect as wearing a green or turquoise shirt and that Wilson could not identify Malvo in the photo line-up. The record, including Wilson's statements and the trial transcript of Gray's testimony, demonstrates that Wilson followed a different route in his attempt to aid police, thus, Wilson and Gray viewed the suspect from different vantage points. Gray had the opportunity to look at Malvo face-to-face, while Wilson did not. The Court holds that this evidence could not properly be used to impeach Gray's testimony and, as Wilson did not testify, no Brady violation occurred. Furthermore, the evidence proved that Parker and Adams were shot with bullets fired from petitioner's Bushmaster rifle and that Malvo dropped a .22 caliber handgun, which contained his fingerprints, while he was running.

In another portion of claim (I), petitioner alleges the Commonwealth was required to, but did not, disclose the contents of witness statements in connection with the shooting death of Paschal Charlot in the District of Columbia on October 3, 2002. The record, including the trial transcript, demonstrates that Gail Howard testified that she saw a car parked in her parking lot at the time of Charlot's murder that looked “pretty much like” the car in which petitioner and Malvo were arrested. After she heard a gun shot, she observed the car leave the area, moving slowly with its lights off. Karl Largie testified that he was standing outside his establishment near the site of the shooting and heard a “bang noise” and observed a car leaving the area with its lights off. Largie described the vehicle as a Chevrolet Caprice, dark in color with heavily tinted windows.

Petitioner contends that he was unaware of Howard's statement on a national news network, CNN, that she did not see the car and that this statement was exculpatory. The Court holds that this statement is not encompassed within the requirements of Brady as a statement made on a public news broadcast such as CNN is public knowledge and available to the defense.

Petitioner contends that the Commonwealth withheld exculpatory information because it did not disclose Largie's statement to police that he believed the car to be brown or burgundy as this information could have impeached Largie's trial testimony. The Court holds that this information is not exculpatory. First, petitioner attributes the statement that the car was brown or burgundy made by an anonymous witness as having been made by Largie. Petitioner speculates that Largie and the anonymous witness were the same person. Furthermore, even if Largie had made the statement, it does not contradict Largie's testimony at trial. The record, including the trial transcript, demonstrates that Largie testified that it was dark outside and that the Chevrolet Caprice was dark in color. When asked what color the car was, Largie responded, “Well, it was very dark, and I assumed it be like-.” Petitioner objected to any assumptions the witness would make and the objection was sustained. Thus, nothing in the record demonstrates what color Largie assumed the car to be.

Petitioner contends further that he was unaware of a statement made by Howard to Police Officer Antonio DuVall that she had urged Largie to talk to the police about the car, as she did not want to get involved because of her immigration status. Furthermore, petitioner contends he should have been provided with a letter from Detective Leadmon to the Immigration and Naturalization Service that Howard was considered a witness, whose testimony was crucial to the prosecution. Petitioner argues that this information would have impeached Howard's testimony. Petitioner next contends that statements of various witnesses that the sound of the gunshot appeared to come from near the victim, that the gunshot sounded like it came from a handgun, and that a puff of smoke was seen coming from a burgundy Nissan or Maxima, which sped away after the shooting, were all exculpatory as these statements would have impeached Howard's and Largie's testimony and the Commonwealth's theory that Charlot was shot from a gun fired from the Caprice.

The Court holds that this evidence is not favorable to petitioner. Petitioner does not contend that Howard testified falsely in exchange for favorable treatment with the Immigration and Naturalization Service or that the letter written by Detective Leadmon influenced Howard's testimony. Neither Howard nor Largie testified concerning the location of the shooter or the direction from which the sound of the gunshot came. The testimony from both Howard and Largie was corroborated by evidence that proved Charlot was killed by a bullet fired from petitioner's Bushmaster rifle.

In another portion of claim (I), petitioner alleges the Commonwealth was required to, but did not, disclose the contents of witness statements in connection with the wounding of Muhammad Rashid in Prince George County, Maryland on September 15, 2002. Rashid testified at trial and identified Malvo as the person who shot him. Rashid testified further that he recognized the structure of Malvo's face and that in his first statement he had described Malvo's color as not pure black or pure white. When questioned about his 911 telephone call and his description of the shooter as being 35 years old, Rashid testified that he had been misunderstood and that the assailant appeared to be between 25 and 30 years old.

Petitioner contends the Commonwealth should have disclosed a posting for a “Robbery Lookout” which described the shooter as a 35-year-old black male; Detective Darrell Disque's investigative summary indicating that Rashid had named James E. Donmore as a suspect; Detective Disque's hand written notes indicating Rashid had described the assailant as having cream colored skin and as being probably white; Rashid's statement that he did not think he would recognize his assailant; and Rashid's failure to pick Malvo from a photo line-up. Petitioner contends this information would have impeached Rashid's credibility.

The Court holds that this evidence is not exculpatory because it was not material. The evidence at trial proved that Rashid was shot with the .22 caliber gun that Malvo dropped while being chased in Montgomery, Alabama. Furthermore, as evidence connecting petitioner to numerous other shootings was abundant, petitioner cannot demonstrate that impeaching Rashid as to his identification of Malvo would undermine the confidence in the outcome of his trial.

Petitioner argues that all of the allegedly exculpatory evidence must be considered in its totality when determining the materiality of the evidence. Petitioner is correct that when considering materiality, we consider the suppressed evidence as a whole, not item by item. Workman v. Commonwealth, 272 Va. 633, 644-45, 636 S.E.2d 368, 375 (2006); Kyles v. Whitley, 514 U.S. 419, 436, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). However, we do not reach the issue of materiality unless we first determine that the evidence is favorable to the accused because it is exculpatory or because it may be used for impeachment. Workman, 272 Va. at 644-45, 636 S.E.2d at 374. We have already determined that, other than petitioner's allegations concerning the Rashid shooting, none of the suppressed evidence upon which petitioner relies constituted evidence favorable to petitioner. However, even if it were all favorable to petitioner, none of the suppressed evidence would have been material because, taken as a whole, it does not undermine confidence in the forensic evidence admitted at trial that tied petitioner to both the Bushmaster rifle used in many of the shootings, and the .22 caliber handgun Malvo dropped in Alabama, which was used in other shootings. Furthermore, petitioner does not challenge the evidence that proved he was involved in at least nine other shootings, including the murder of Dean Meyers. Thus, petitioner cannot establish that there is a reasonable probability that his knowledge or use of the alleged exculpatory evidence would have undermined the confidence in the outcome of the trial.

In claim (II), petitioner alleges the trial court's decision to permit petitioner to represent himself at trial violated petitioner's right to the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States. Although petitioner uses the terminology associated with a claim alleging the denial of the “ effective assistance of counsel” as defined in Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Court holds that this claim, in fact, involves petitioner's Sixth Amendment right to counsel and actions taken by the trial court as opposed to any act or omission of counsel. FN2

FN2. In a portion of claim (II), petitioner attempts to incorporate, by reference, arguments related to his capacity to choose not to present evidence of his serious mental health illness during the penalty phase of his trial. The Court declines to consider “by reference” these arguments and holds that this claim, as it relates to actions taken by the trial court, is conclusional and, therefore, will not support the issuance of a writ of habeas corpus. Penn v. Smyth, 188 Va. 367, 370-71, 49 S.E.2d 600, 601 (1948).

In a portion of claim (II), petitioner alleges the trial court violated his Sixth Amendment right to counsel when the court allowed him to represent himself without adequately warning him of its dangers. The record, including the petition for appeal filed with this Court on direct appeal of petitioner's capital convictions, demonstrates that petitioner argued only that the trial court erred because it had failed to adequately explain the limitations it was imposing on petitioner's access to “standby counsel.”

To the extent petitioner is reiterating the arguments raised on direct appeal, the Court holds that this portion of claim (II) is barred because this issue was raised and decided in the trial court and on direct appeal from the criminal conviction and, therefore, it cannot be raised in a habeas corpus petition. Henry v. Warden, 265 Va. 246, 249, 576 S.E.2d 495, 496 (2003). To the extent petitioner is challenging any other aspect of the trial court's inquiry or warnings to petitioner, the Court holds this claim is procedurally defaulted because this non-jurisdictional issue could have been raised at trial and on direct appeal and, thus, is not cognizable in a petition for a writ of habeas corpus. Slayton v. Parrigan, 215 Va. 27, 29, 205 S.E.2d 680, 682 (1974), cert. denied, 419 U.S. 1108, 95 S.Ct. 780, 42 L.Ed.2d 804 (1975).

In another portion of claim (II), petitioner alleges the trial court violated his Sixth Amendment right to counsel when the court allowed him to represent himself without assessing petitioner's competence to waive his right to counsel. The Court holds that this portion of claim (II) is procedurally defaulted because this non-jurisdictional issue could have been raised at trial and on direct appeal and, thus, is not cognizable in a petition for a writ of habeas corpus. Id.

In another portion of claim (II), petitioner alleges the trial court violated his Sixth Amendment right to counsel because the court placed restrictions that were too burdensome on petitioner's use of standby counsel during that part of the trial. The Court holds that this portion of claim (II) is barred because this issue was raised and decided in the trial court and on direct appeal from the criminal conviction and, therefore, it cannot be raised in a habeas corpus petition. Henry, 265 Va. at 249, 576 S.E.2d at 496.

In a portion of claim (III)(A), petitioner alleges he was denied the right to the effective assistance of trial counsel because information regarding petitioner's mental condition was not presented to the trial court when petitioner sought to represent himself.

The Court holds that this portion of claim (III)(A) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland, 466 U.S. at 687, 104 S.Ct. 2052. The record, including the trial transcript, demonstrates that there was no indication that petitioner suffered from any mental illness as petitioner answered the court's questions and insisted that he understood the risks and conditions associated with representing himself at trial. Petitioner fails to point to expert evidence, available at that time, upon which counsel could have relied and which would have established that petitioner's ability to make decisions and understand the proceedings was impaired. The trial transcript demonstrates that counsel found petitioner to be “a very bright man” and petitioner has failed to proffer any evidence to the contrary. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.

In another portion of claim (III)(A), petitioner alleges he was denied the right to the effective assistance of trial counsel because information regarding petitioner's mental condition was never presented to the jury during the penalty phase of his trial. Petitioner claims that counsel was “well aware” of his “severe mental illness and his bizarre behavior” but never investigated or presented this information to the jury. Petitioner claims that, had this evidence been presented, he would not have been sentenced to death.

The Court holds that this portion of claim (III)(A) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The record, including the trial transcript, demonstrates that petitioner refused to cooperate with the Commonwealth's mental health expert and understood that his refusal would result in the trial court barring him from presenting mental health experts to testify at the penalty phase of the trial. Additionally, despite counsel's inability to present expert testimony as to petitioner's mental health, counsel did present lay testimony from petitioner's friends regarding changes in his personality and demeanor prior to the shootings. Furthermore, petitioner has failed to proffer the records from the mental health exams to which he subjected himself and, therefore, has failed to demonstrate that the mental health evidence available at the time of trial would have aided in his defense. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.

In another portion of claim (III)(A), petitioner alleges he was denied the right to the effective assistance of trial counsel because counsel failed to advise petitioner about the consequences he faced by refusing to cooperate with the Commonwealth's expert mental health witness. The Court holds that this portion of claim (III)(A) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The record, including the trial transcript, demonstrates that any alleged inadequacy in counsel's advice was cured when the trial court informed petitioner of the consequences he faced by refusing to cooperate with the Commonwealth's mental health expert. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.

In another portion of claim (III)(A), petitioner alleges he was denied the right to the effective assistance of trial counsel because counsel failed to object when the trial court prevented all evidence of mental illness from being presented at trial even though the court did not inquire into the effect the evidence might have on the jury.

The Court holds that this portion of claim (III)(A) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. Petitioner has failed to state on what grounds trial counsel should have objected to the trial court's ruling, which was properly within its discretion pursuant to Code § 19.2-264.3:1(F)(2), as a result of petitioner's decision to refuse to cooperate with the Commonwealth mental health expert. See Muhammad, 269 Va. at 508, 619 S.E.2d at 48. Additionally, while the trial court did not permit expert testimony, counsel did present lay testimony from petitioner's friends at sentencing regarding changes in his personality and demeanor. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.

In another portion of claim (III)(A), petitioner alleges he was denied the right to the effective assistance of trial counsel because counsel failed to argue that recent opinions from the United States Supreme Court in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (defendants under the age of eighteen not eligible for the death sentence) and Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (defendants who are mentally retarded not eligible for the death sentence) and evolving standards of decency require that a person suffering from a mental illness should not be sentenced to death. In another portion of claim (III)(A), petitioner alleges the trial court erred in allowing petitioner to represent himself and by denying petitioner's use of his mental health expert at trial. The Court holds that this claim is barred because these issues were raised and decided in the trial court and on direct appeal from the criminal conviction and, therefore, they cannot be raised in a habeas corpus petition. Henry, 265 Va. at 249, 576 S.E.2d at 496.

In claim (III)(B), petitioner alleges that, after he acquiesced to representation by counsel, he was denied the effective assistance of trial counsel because counsel failed to object to improper arguments by the prosecution during the penalty phase of the trial. During closing argument in the penalty phase, the Commonwealth commented that the “original” Muhammad that people knew years ago “no longer exists,” was “dead,” and had been “murdered” by the man that was on trial. Petitioner claims that these remarks were improper and should have been objected to as the remarks effectively told the jury not to consider the mitigation evidence that had been presented and it minimized the importance of the jury's decision regarding sentencing.

The Court holds that claim (III)(B) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The record, including the trial transcript, demonstrates that the jury was presented with mitigation evidence from various witnesses who knew petitioner in both a personal and professional capacity and who interacted with petitioner and his family. Witnesses described changes in the petitioner's personality and demeanor that caused petitioner to become someone that the witnesses no longer knew. The Commonwealth's remarks, therefore, were based on this testimony. Additionally, the jury was instructed that its sentence was to be based upon all of the evidence, “including evidence in mitigation.” It is presumed that a jury will follow the instructions given by the trial court. Green v. Young, 264 Va. 604, 611, 571 S.E.2d 135, 139 (2002). Petitioner has failed to articulate any factual basis upon which the Court could conclude that the jury did not follow the court's instructions. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.

In claim (III)(C), petitioner alleges he was denied the effective assistance of trial counsel because counsel failed to consult with or request expert assistance on subjects upon which the Commonwealth relied upon expert testimony.

The Court holds that claim (III)(C) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. Petitioner has failed to proffer the names of any experts he contends counsel should have consulted and fails to proffer any expert affidavits to demonstrate what information these experts could have provided at trial. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.

In claim (III)(D), petitioner alleges he was denied the effective assistance of counsel because trial and appellate counsel failed to allege and preserve the claims made under claims (I), (II), (IV) and all subparagraphs. The Court holds that claim (III)(D) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. Petitioner does not articulate a factual basis to support this claim and does not identify with specificity any act or omission of counsel which was objectively unreasonable. Furthermore, petitioner does not attempt to demonstrate how these failures were prejudicial.FN3 Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different. FN3. There is no claim (IV) in the petition for a writ of habeas corpus.

In claim (III)(E), petitioner alleges he was denied the effective assistance of trial and appellate counsel because counsel failed to allege and preserve the errors assigned in his direct appeal of his convictions to the Supreme Court of Virginia. Petitioner contends that, to the extent this Court holds any of the claims found in sections (I), (II) or (IV) FN4 could have been raised at trial or on direct appeal, counsel's failure to raise and preserve the issues constitutes ineffective assistance of counsel. FN4. As noted previously, there is no claim (IV) in the petition for a writ of habeas corpus.

The Court holds that claim (III)(E) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. Petitioner does not articulate a factual basis to support this claim and, therefore, cannot demonstrate that any omission of counsel was objectively unreasonable. Furthermore, petitioner does not attempt to demonstrate how these failures were prejudicial. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.

In a portion of claim (III)(F), petitioner alleges he was denied the effective assistance of trial counsel as counsel allegedly failed to adequately protect petitioner's rights to due process and an impartial jury because “the indictment, jury instructions and verdict forms did not require the jury to agree that the elements of capital murder under Virginia Code §§ 18.2-31(8), (13) and 18.2-46.4 were proven beyond a reasonable doubt in order to find [Petitioner] guilty.” Petitioner contends the indictments, jury instructions, and verdict forms were inadequate because they did not specify which other person petitioner had killed within a three-year period or which act of terrorism petitioner had committed.

The Court holds that this portion of claim (III)(F) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. Regarding the charge and conviction under Code § 18.2-31(8), there is no requirement that the indictment, jury instructions, or verdict forms specify which other killing is being included within the three year period. The Commonwealth only needs to prove that the defendant was a principal in the first degree in the capital murder charged in the indictment and at least an accomplice in any other killing within a three-year period. Burlile v. Commonwealth, 261 Va. 501, 510-11, 544 S.E.2d 360, 365-66 (2001); Code § 18.2-31(8). Here, the evidence was sufficient to show petitioner's involvement at least as an accomplice in multiple other killings.

With regard to the charge and conviction of capital murder based upon the terrorism predicate in Code §§ 18.2-31(13) and 18.2-46.4, we previously rejected on direct appeal petitioner's argument that the indictment must specify the intent of the petitioner under the two separate subsections of § 18.2-46.4. Muhammad, 269 Va. at 494-95, 619 S.E.2d at 40-41. Petitioner proffers no other valid arguments he contends counsel should have made. As such, petitioner cannot meet his burden to prove that counsel failed to adequately preserve petitioner's rights and that he was prejudiced as a result.

On direct appeal of petitioner's convictions for the capital murder of Dean Meyers in the commission of an act of terrorism, we held that an act of terrorism is proven either by showing that petitioner intended to “(i) intimidate the civilian population at large; or (ii) influence the conduct or activities of the government of the United States, a state or locality through intimidation” or both. Muhammad, 269 Va. at 494, 619 S.E.2d at 40. The record, including the trial transcript, demonstrates that the jury was instructed, “An act of terrorism is any murder committed with the intent to intimidate the civilian population at large or to influence the conduct or activities of the government of the United States, a state or locality through intimidation.” As to petitioner's claim that counsel should have argued that the jury instructions and verdict forms must specify which act of terrorism petitioner intended to commit at the time of the killing, petitioner has failed to demonstrate that the specific acts of terrorism constitute separate elements of the offense rather than the means by which an act of terrorism is accomplished. The elements the jury was required to find unanimously in order to convict petitioner of capital murder were the killing of Dean Meyers and that the killing occurred during the commission of an act of terrorism. Intimidating the civilian population and influencing the conduct of government constitute “possible sets of underlying brute facts [that] make up [the] particular element,” of having committed an act of terrorism. See Richardson v. United States, 526 U.S. 813, 817, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999). Petitioner has failed to demonstrate that counsel's performance was deficient.

Furthermore, as the record demonstrates that the evidence overwhelmingly proved both sets of facts which can comprise an act of terrorism, petitioner has failed to demonstrate that there is a reasonable probability that, had counsel asked for such specification in the jury instructions or verdict form, the result of the proceeding would have been different. In another portion of claim (III)(F), petitioner alleges he was denied the effective assistance of counsel because counsel failed to “require” that the indictments include the aggravating factors that had to be proven in order to make petitioner eligible for the death penalty.

The Court finds that this claim is without merit. The record, including the trial transcripts and this Court's opinion on direct appeal, demonstrates that counsel filed a motion to dismiss and properly preserved this issue, which was addressed on direct appeal as this Court found that “aggravating factors are not constitutionally required to be recited in a capital murder indictment.” Muhammad, 269 Va. at 494, 619 S.E.2d at 40.

In another portion of claim (III)(F), petitioner alleges he was denied the effective assistance of counsel because counsel failed to “argue the Court's improper application of harmless error.” Presumably, this contention refers to the direct appeal of petitioner's convictions.

The Court holds that this portion of claim (III)(F) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. Petitioner does not articulate a factual basis in support of this claim, fails to identify with specificity how this Court's application of harmless error occurred, and fails to state how or on what ground counsel could have objected to this Court's application of harmless error. Therefore, petitioner cannot demonstrate that any omission of counsel was objectively unreasonable. Furthermore, petitioner does not attempt to demonstrate how this failure was prejudicial. Thus, petitioner has failed to demonstrate that counsel's performance was deficient or that there is a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.

In another portion of claim (III)(F), petitioner alleges that the various verdict forms did not comply with Code § 19.2-264.4(D). The Court holds that this portion of claim (III)(F) is procedurally defaulted as this non-jurisdictional issue could have been raised at trial and on direct appeal and, thus, is not cognizable in a petition for a writ of habeas corpus. Slayton, 215 Va. at 29, 205 S.E.2d at 682.

Accordingly, the petition is dismissed. This order shall be published in the Virginia Reports.

Muhammad v. Kelly, 575 F.3d 359 (4th Cir. 2009) (Fedral Habeas).

Background: Following affirmance of capital murder conviction, 269 Va. 451, 619 S.E.2d 16, petition for writ of habeas corpus was filed. The United States District Court for the Eastern District of Virginia, Liam O'Grady, J., 2008 WL 4360996, denied the petition. Petitioner appealed.

Holdings: The Court of Appeals, Gregory, Circuit Judge, held that: (1) FBI report which indicated that sniper was likely acting alone was not exculpatory; (2) government's failure to disclose certain witness statements did not amount to Brady violation; (3) counsel's failure to object to defendant's self-representation did not prejudice defendant; and (4) claim challenging exclusion of expert during penalty phase was procedurally defaulted. Affirmed.

GREGORY, Circuit Judge:

John Allen Muhammad petitions this Court for a writ of habeas corpus. He alleges nondisclosure of exculpatory information by the prosecution, ineffective assistance of his trial counsel, improper exclusion of expert testimony during his sentencing phase, and improper time and page restrictions on his habeas petition in the district court below. We are unable to find reversible error in the conclusions of the state and district courts, and we therefore affirm the district court's decision to deny habeas relief.

I. Paul J. LaRuffa was a restaurateur in Clinton, Maryland. At the end of the day on September 5, 2002, LaRuffa closed his restaurant and proceeded to take his laptop computer and $3500 in cash and credit receipts to his car. After he sat behind the steering wheel, he saw a figure to his left and a flash of light, then heard gunshots. LaRuffa was shot six times, but survived. An employee who left the restaurant with LaRuffa witnessed the shooting and called 911. He testified that he saw a “kid” run up to LaRuffa's car, fire into it, and take the briefcase and laptop. Muhammad v. Virginia, 269 Va. 451, 619 S.E.2d 16, 25 (2005). The briefcase and empty deposit bags were found six weeks later in a wooded area approximately a mile from the shooting. The DNA from clothing found nearby was consistent with that of Lee Boyd Malvo.

On September 15, 2002, there was a second shooting in Clinton, Maryland: Muhammad Rashid was locking the front door of the Three Roads Liquor Store from the outside when he heard gunshots behind him. A young man then rushed him and shot him in the stomach. Rashid testified that the young man was Malvo.

Almost a week later, on September 21, 2002, Claudine Parker and Kelly Adams were shot after closing the Zelda Road ABC Liquor Store in Montgomery, Alabama. Parker died as a result of her gunshot wound through the back-the bullet transected her spinal cord and passed through her lung. Adams was shot through the neck, and the bullet exited through her chin, breaking her jaw in half, shattering her face and teeth, paralyzing her left vocal cord, and severing nerves in her left shoulder. Yet, she survived. Bullets recovered from the shooting were eventually identified as coming from a Bushmaster high-powered rifle. While the rifle was being fired, Malvo was seen approaching Parker and Adams. A police car passed by the scene immediately after the shooting, and the officers observed Malvo going through the women's purses. The officers gave chase, but Malvo escaped. In the process, however, he dropped a gun catalog. Malvo's fingerprints were found on the catalog, and a .22-caliber, stainless-steel revolver was found in the stairwell of an apartment building that Malvo traversed. The revolver was the same as the one used to shoot LaRuffa and Rashid.

Two days later, on September 23, 2002, the manager of a Baton Rouge, Louisiana, Beauty Depot store, Hong Im Ballenger, was walking to her car after closing the store for the evening when she was shot once in the head. The bullet entered the back of her head and exited through her jawbone. She died as a result of the wound. The bullet was determined to have come from the Bushmaster rifle found on Muhammad during his arrest. Witnesses saw Malvo flee from the scene with Ballenger's purse.

The sixth and seventh shootings occurred in Silver Spring, Maryland, on October 3, 2002. At approximately 8:15 a.m., Premkumar A. Walekar was shot while fueling his taxicab. The bullet went through his left arm and entered his chest, where it fatally damaged his heart. At approximately 8:30 a.m., Sarah Ramos was killed while sitting on a bench in front of the Crisp & Juicy Restaurant in the Leisure World Shopping Center. The bullet entered through the front of her head and exited through her spinal cord at the top of the neck. Both bullets were identified as having come from a Bushmaster rifle, and an eyewitness identified Muhammad's Chevrolet Caprice at the scene of the second shooting.

On October 3, 2002, at approximately 10:00 a.m., Lori Lewis-Rivera was shot in the back while vacuuming her car at a Shell gas station in Kensington, Maryland. The bullet was identified as coming from a Bushmaster rifle. An eyewitness said that he saw a Chevrolet Caprice in the area approximately twenty minutes before the shooting. At approximately 7:00 p.m., a police officer stopped Muhammad for running two stop signs. The officer gave Muhammad a verbal warning and released him. Later that night, at approximately 9:15 p.m., Pascal Chariot was shot in the chest as he crossed the inter section of Georgia Avenue and Kalmia Road in the District of Columbia. Chariot's shooting happened about thirty blocks from where Muhammad was stopped. The bullet fragments from both the Lewis-Rivera and the Chariot shootings were identified as coming from a Bushmaster rifle.

The next day, October 4, 2002, Caroline Seawell was putting bags in her minivan outside of a Michael's craft store in Fredericksburg, Virginia, when she was shot once in the back. The bullet damaged her liver and exited through her right breast, but she survived the attack. An eyewitness testified to seeing a Caprice in the parking lot at the time of the shooting, and ballistics tests determined the bullet fragments came from a Bushmaster rifle.

On October 6, 2002, Tanya Brown was taking Iran Brown to Tasker Middle School in Bowie, Maryland. As Iran was walking on the sidewalk to the school, he was shot once in the chest. Tanya drove Iran to a health care center where surgeons were able to save his life despite lung damage, a large hole in his diaphragm, damage to the left lobe of his liver, and lacerations to his stomach, pancreas, and spleen. Two eyewitnesses testified that they saw a Caprice in the vicinity of the school the day before and the morning of the shooting. One eyewitness positively identified both Muhammad and Malvo in the Caprice the morning of the shooting. The police searched the surrounding area and found a ballpoint pen and a shell casing in the woods near the school. The area had been pressed down like a blind used to conceal hunters. The tissue samples from the pen matched Muhammad's DNA, and the shell casing and bullet fragments were determined to have come from a Bushmaster rifle. The Brown shooting was also the first time that police discovered communications from the shooters. The tarot card for death was found, and on it was written, “Call me God.” On the back, someone had written, “For you, Mr. Police. Code: Call me God. Do not release to the Press.” Muhammad v. Virginia, 619 S.E.2d at 27.

Three days later, on October 9, 2002, Dean Meyers was fueling his car at a Sunoco station in Manassas, Virginia, when he was shot in the head by a single bullet. The bullet was later determined to have come from a Bushmaster rifle. An eyewitness testified that she saw Muhammad and Malvo in the area approximately one hour prior. The police actually interviewed Muhammad in a parking lot across the street immediately after the shooting, and they later found a map with Muhammad's fingerprints in the parking lot.

On October 11, 2002, Kenneth Bridges was fired upon at an Exxon gas station in Massaponax, Virginia. He was shot once in the chest by a bullet identified as having come from the Bushmaster rifle. Two eyewitnesses testified that they saw a Caprice at or near the Exxon that morning.

The fourteenth shooting occurred on October 14, 2002, in Falls Church, Virginia. Linda Franklin and her husband were loading their car outside of a Home Depot when she was shot in the head by a single bullet and killed. Ballistics experts determined that the bullet was from a Bushmaster rifle.

The next day, October 15, a Rockville, Maryland, dispatcher received the following telephone call: “Don't say any thing, just listen, we're the people who are causing the killings in your area. Look on the tarot card, it says, ‘call me God, do not release to press.’ We've called you three times before trying to set up negotiations. We've gotten no response. People have died.” Id. at 28. The caller hung up before the dispatcher could transfer the call to the Sniper Task Force.

Three days later, on October 18, Officer Derek Baliles of the Montgomery County, Maryland, Police received a telephone call. The caller told Baliles to “shut up” and said that he knew who was doing the shootings, but wanted the police to verify some information before he said anything further. Id. The caller asked questions about the Parker and Adams shootings in Alabama and hung up again. When the caller called again, Baliles verified the shootings. The caller stated that he needed to find more coins and a telephone without surveillance, then hung up. The same day, William Sullivan, a priest in Ashland, Virginia, received a telephone call from two people. The first male voice told him that someone else wanted to speak to him. The second male voice said that “the lady didn't have to die,” and “it was at the Home Depot.” Id. The caller then told him about the shooting in Alabama and said, “Mr. Policeman, I am God. Do not tell the press.” Id. The caller concluded by telling Sullivan to relay the information to the police.

The next day, October 19, 2002, Jeffery Hopper and his wife were leaving a restaurant in Ashland, Virginia, when he was shot in the abdomen. Hopper survived, but his injuries required five surgeries to repair his pancreas, stomach, kidneys, liver, diaphragm, and intestines. In the woods near the crime scene, police discovered another blind similar to the one at the Brown shooting. They also found a shell casing, a candy wrapper, and a plastic sandwich bag that was attached with a thumbtack to a tree at eye level and was decorated with Halloween characters and self-adhesive stars. The shell casing and bullets were determined to have come from a Bushmaster rifle. The candy wrapper contained Muhammad's and Malvo's DNA.

The sandwich bag contained a handwritten message: For you Mr. Police. “Call me God.” Do not release to the Press. We have tried to contact you to start negotiation ... These people took our call for a Hoax or Joke, so your failure to respond has cost you five lives. If stopping the killing is more important than catching us now, then you will accept our demand which are non-negotiable. (i) You will place ten million dollar in Bank of america account ... We will have unlimited withdrawl at any atm worldwide. You will activate the bank account, credit card, and pin number. We will contact you at Ponderosa Buffet, Ashland, Virginia, tel. # ... 6:00 am Sunday Morning. You have until 9:00 a.m. Monday morning to complete transaction. “Try to catch us withdrawing at least you will have less body bags.” (ii) If trying to catch us now more important then prepare you body bags. If we give you our word that is what takes place. “Word is Bond.” P.S. Your children are not safe anywhere at anytime. Id. at 28-29 (alterations in original). However, the note was not discovered until after the deadline had passed. Surveillance videotapes from that day identified Muhammad at a Big Lots store near the shooting.

The day after Hopper was shot, the FBI Sniper Tip Line received a call from a male who stated, “Don't talk. Just listen. Call me God. I left a message for you at the Ponderosa. I am trying to reach you at the Ponderosa. Be there to take a call in ten minutes.” Id. at 29. On October 21, 2002, the FBI negotiations team received a call that had been re-routed from the Ponderosa telephone number. A recorded voice said:

Don't say anything. Just listen. Dearest police, Call me God. Do not release to the press. Five red stars. You have our terms. They are non-negotiable. If you choose Option 1, you will hold a press conference stating to the media that you believe you have caught the sniper like a duck in a noose. Repeat every word exactly as you heard it. If you choose Option 2, be sure to remember we will not deviate. P.S.-Your children are not safe. Id.

The next day at around 6:00 a.m., Conrad Johnson, a bus driver for the Montgomery County Transit Authority, was shot in the chest as he was entering his bus in Aspen Hill, Maryland. Johnson was conscious when the rescue workers arrived, but died at the hospital. The bullet fragments were determined to have come from a Bushmaster rifle. At another blind discovered nearby, a black duffle bag and a brown left-handed glove were found. DNA from hair found in the duffle bag matched that of Muhammad. Another plastic bag that contained self-adhesive stars and a note was left behind.

On October 24, 2002, the FBI captured Muhammad and Malvo at a rest area in Frederick County, Maryland. They were asleep in a Caprice, where police found a loaded .223-caliber Bushmaster rifle behind the rear seat. The DNA on the rifle matched that of both Muhammad and Malvo, although the only fingerprints found on the rifle were those of Malvo. The Caprice had been modified with heavy window tint, a hinged rear seat that provided easy access to the trunk from the passenger compartment, and a hole that had been cut into the trunk lid just above the license plate. Covering the hole was a right-handed brown glove that matched the left-handed glove found near the Johnson shooting, and a rubber seal crossed over the hole. Moreover, the trunk had been spray-painted blue.

Police also found the following items in the Caprice: a global positioning system receiver; a magazine about rifles; an AT & T telephone charge card; ear plugs; maps; plastic sandwich bags; a rifle scope; .223-caliber ammunition; two-way radios; a digital voice recorder; a receipt from a Baton Rouge, Louisiana, grocery store, dated September 27, 2002; an electronic organizer; a plastic bag from Big Lots; a slip of paper containing the Sniper Task Force telephone number; and a list of schools in the Baltimore area. Moreover, police found LaRuffa's laptop computer, onto which Muhammad had loaded “Microsoft Streets and Trips 2002” on September 2, 2002. In the software program, maps had been marked with icons, including some with a skull and crossbones. Icons indicated where Walekar, Lewis-Rivera, Seawell, Brown, Meyers, and Franklin had been shot. There was also a document entitled “Allah8.rtf” that contained portions of the text communicated to police in the extortion demands.

In total, Muhammad was accused of shooting sixteen people and killing ten of them. Muhammad was convicted by a jury in the Circuit Court of Prince William County, Virginia, on November 17, 2003, for the 2002 capital murder of Dean Meyers as more than one murder in three years, in violation of Va.Code Ann. § 18.2-31(8) (2003); for the capital murder of Meyers in the commission of an act of terrorism, in violation of Va.Code Ann. § 18.2-31(13) (2003); for conspiracy to commit capital murder; and for the illegal use of a firearm during the commission of murder. On November 24, 2003, the jury sentenced Muhammad to death for the capital murder and to twenty-three years in prison for the other crimes. The trial court entered final judgment in accordance with the verdict on March 29, 2004. The Supreme Court of Virginia upheld Muhammad's convictions on April 22, 2005, Muhammad v. Virginia, 269 Va. 451, 619 S.E.2d 16, and denied rehearing on September 23, 2005. The Supreme Court of the United States denied Muhammad's petition for a writ of certiorari on May 15, 2006. Muhammad v. Virginia, 547 U.S. 1136, 126 S.Ct. 2035, 164 L.Ed.2d 794 (2006).

The Prince William County Circuit Court appointed counsel to represent Muhammad on habeas corpus review. Muhammad filed his petition on July 31, 2006, and the Supreme Court of Virginia dismissed the petition on June 12, 2007, Muhammad v. Warden, 274 Va. 3, 646 S.E.2d 182 (2007). It denied rehearing on September 25, 2007. The Supreme Court of the United States denied Muhammad's petition for a writ of certiorari on April 14, 2008. Muhammad v. Kelly, --- U.S. ----, 128 S.Ct. 1889, 170 L.Ed.2d 760 (2008). On October 4, 2007, the Prince William County Circuit Court set Muhammad's execution date for November 5, 2007. On October 10, 2007, a group of attorneys requested that the U.S. District Court for the Eastern District of Virginia appoint them to represent Muhammad and stay his execution pursuant to 28 U.S.C. § 2251 (2006) so that they could file a petition under 28 U.S.C. § 2254 (2006). The district court granted their request on October 26, 2007, and directed them to file, within sixty days, a petition of not more than fifty pages. They subsequently filed a motion requesting that the district court rescind its briefing order and allow them to wait a year to file Muhammad's § 2254 petition. The district court denied the motion, but allowed the attorneys an additional thirty days to file an eighty-page petition. On January 22, 2008, the district court allowed Muhammad to file a placeholder petition on the ninetieth day from the stay and gave advance permission to file an amended petition three months afterward. On January 24, 2008, Muhammad filed his placeholder petition, and on April 23, 2008, he filed his amended petition.

On April 23, 2008, Muhammad also filed a motion requesting funding for a neuropsychologist, a neuropsychiatrist, and brain imaging in the amount of $29,000. Additionally, Muhammad filed a motion for leave to file a third habeas petition, arguing that his one-year time limit had not expired. On August 6, 2008, the district court denied Muhammad's motion to file a third amended petition. On September 24, 2008, the district court denied his motion for funding and granted the Warden's motion to dismiss the petition and to lift the stay of execution. Muhammad requested a certificate of appealability (COA) on October 20, 2008, and filed a notice of appeal. The district court denied a COA. On January 30, 2009, Muhammad filed a motion with this Court seeking a COA, and we granted his motion on February 10, 2009.

II.

The district court's denial of a petition for a writ of habeas corpus is reviewed de novo. Bell v. Ozmint, 332 F.3d 229, 233 (4th Cir.2003). We may grant relief on a claim adjudicated on the merits in a state court only if the state-court proceeding “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). With this in mind, we turn to the merits of Muhammad's claims.

III. A.

Muhammad's first argument is that the government withheld exculpatory information during his trial. “[A] Brady [ v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),] violation has three essential elements: (1) the evidence must be favorable to the accused; (2) it must have been suppressed by the government, either willfully or inadvertently; and (3) the suppression must have been material, i.e., it must have prejudiced the defense at trial.” Monroe v. Angelone, 323 F.3d 286, 299-300 (4th Cir.2003) (citing Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)).

Muhammad notes that in June 2006, one month before the due date for filing his state habeas petition, his Virginia attorneys received from his Maryland attorneys a DVD with approximately 30,000 pages of discovery responses that were not produced during his Virginia case over two years earlier even though they were possessed by the same multijurisdictional joint investigation team. Muhammad contends that several of these undisclosed documents contained exculpatory information that would have undermined portions of the prosecution's case in Virginia.

First, Muhammad takes issue with the government's failure to disclose an FBI criminal analysis that indicated that the sniper committing the shootings was likely acting alone. He believes that this analysis would have undermined the testimony of sniper expert Mark Spicer, who opined that a sniper team carried out the shootings because one person could not have done so alone. Moreover, in the murder of Pascal Charlot, the government had no direct evidence of Muhammad's involvement, but used Spicer's testimony to draw the connection. The district and state courts concluded that the analysis was not exculpatory because the report did not definitively conclude that the killings were the work of a single shooter. Muhammad v. Warden, 646 S.E.2d at 186-87. For example, the report opined that “[i]f there is a second offender, he is not likely to be an equal partner in these crimes, and would be subservient to the primary offender.” (J.A. 2019.) Furthermore, the FBI profile explicitly notes, “This analysis is not a substitute for a thorough, well-planned investigation, and should not be considered all inclusive. The information provided is based upon probabilities.” ( Id. at 2016.) Given the inconclusive language in the report, it cannot be considered exculpatory, and the state court's conclusion that there was no Brady violation was not in error.

Second, Muhammad takes issue with the ballistics evidence used to convict him. Among the undisclosed information, he points to reports that the evidence recovered from the September 5 and September 14 shootings were too damaged to provide a conclusive ballistics match. (J.A. 2536.) He also highlights a report from the Prince George's County Police Department that there was insufficient evidence to determine whether the handgun recovered at the Alabama shooting was that used to fire the bullets that killed the victims. (J.A. 2537.) Finally, he points to a December 3, 2002, report that preliminary ballistics findings were inconclusive. (J.A. 2539-40.) The district court dismissed the claims after it determined that Muhammad failed to present them to the state court. Muhammad concedes that he did not present the claims to the state court initially (Pet'r's Br. 9-10), but he responds that the Warden raised the issue by arguing that the suppressed evidence was not material and that he disputed the claim.

Upon review of the portions of the record that Muhammad cites in support of his argument that these claims were properly presented to the state court, we must rule against him. There is no indication in the record that the government directly presented the issue of the materiality of the undisclosed ballistics evidence to the court. And although Muhammad claims to have disputed the prosecution's ballistics testimony in his motion for rehearing, the motion does not mention the ballistics reports detailed above. Thus, it appears that Muhammad did not present these claims to the state court and they are therefore forfeited.FN1

FN1. We note that even if Muhammad had presented these claims, there was other, conclusive ballistics evidence to support his convictions. Therefore, the challenged ballistics evidence would not have been exculpatory.

Third, Muhammad disputes evidence of his involvement in the Parker shooting in Alabama, which was used as one of the predicate killings for his capital charges. He claims that several witnesses reported conflicting information, and relevant to the undisclosed information, two witnesses who identified someone other than Malvo at the scene were not disclosed to him, and witnesses who reported seeing a handgun were also not disclosed. Muhammad interprets the previously undisclosed interviews to indicate that Clyde Wilson-who, along with James Gray, chased after Malvo-saw Malvo point and fire a handgun. Yet, Wilson does not actually say that he saw a handgun; in fact, he could not specifically identify the type of gun that he saw, but demonstrated what he saw by extending his arms straight out. (J.A. 2512.) Additionally, Muhammad argues that Wilson's account could have been used to impeach other witnesses because Wilson stated that the suspect was wearing a green or turquoise shirt-different from other descriptions given-and he could not identify Malvo in the lineup, casting doubt on Gray's identification. The Supreme Court of Virginia determined that his testimony could not have been used to impeach Gray because Wilson saw Malvo from a different vantage point and chased Malvo down a different route from Gray, and Gray saw Malvo face-to-face. Moreover, because Wilson did not testify, the report would have been of minimal use. We cannot say that the Supreme Court of Virginia's conclusion was unreasonable.

Further, in an undisclosed report, forensics experts in Alabama had previously determined that the bullets used in the killing were .22 caliber and likely came from a handgun. Muhammad contends that it was only after his apprehension that the experts determined, without examining the weapon, that the bullets came from his .223-caliber Bushmaster rifle and not the .22-caliber handgun found nearby. But Muhammad's challenges to the ballistics information were not made in state court. Moreover, ATF firearms examiner Dandridge made an independent conclusive match of the bullets found in Montgomery to the Bushmaster rifle. (J.A. 713-15.) Thus, these claims must fail.FN2

FN2. Muhammad makes an additional argument that the statement of one Officer D.L. Johnson, given within days of the shooting, was not disclosed to him, but this argument also was not made in state court.

Fourth, Muhammad challenges additional evidence related to the Chariot shooting in the District of Columbia, another predicate killing for his capital murder conviction. He alleges that the government suppressed evidence that one witness, Gail Howard, had previously provided only a vague description of the car seen at the scene; did not speak to the police until weeks after the shooting, contrary to her testimony; and had letters written by the D.C. police to the Immigration and Naturalization Service on her behalf in order to assuage her fears about her immigration status. Moreover, those witnesses who talked to the police within hours after the shooting supposedly indicated that a handgun, not a rifle, was used in the shooting.

Howard's police statement said that the car she saw was an “American made, big police looking car, square shape. The same type of car people buys [sic], after the police had them. I think it was a four door and the windows were tinted. And the car was dark colored.” (J.A. 2054B.) This description is not vague; it accurately describes a 1990s-model Chevrolet Caprice, which is what Muhammad drove. As for the immigration letters, as the Supreme Court of Virginia noted, Muhammad makes no allegation that Howard testified falsely, so it is unclear how this information would prove exculpatory. Regarding the statements from the other seven witnesses, only one of them, Ayman Gomma, states that a handgun was fired, and this was not from personal observation, but was instead a deduction he drew from his training in the Army and the sound that he heard. Moreover, none of them testified at trial, and Howard's testimony, which the witnesses would have supposedly impeached, was corroborated by the ballistics evidence. Thus, the Supreme Court of Virginia's conclusion that the information was not exculpatory was not incorrect.

The fifth category of evidence that Muhammad raises as exculpatory concerns the Ballenger killing in Baton Rouge, Louisiana, which was used as one of the predicate offenses for the Virginia capital charges. Ingrid Shaw testified that she saw Malvo running from the murder scene and identified Muhammad's Caprice as the one that Malvo entered. However, when she was first interviewed, and in two subsequent interviews, she did not mention seeing a car parked nearby that later picked up Malvo. When she did mention a car, she said it could be an “Olds Cutlass,” and the Louisiana license plate number she gave was registered to a 1979 Ford LTD. (J.A. 2496.) Presumably, this information could have been used to impeach her testimony, and the district court found as much. However, the district court ultimately concluded that the information was not prejudicial because of the ballistics evidence, her positive identification of Malvo, and the fact that the Ballenger murder was one of several predicate killings for the capital murder charge. We can find no error in this conclusion.

Finally, Muhammad contends that the Commonwealth failed to disclose a series of twelve letters written by Malvo to another inmate named “Pac-Man.” These letters allegedly contradict the Commonwealth's position that Muhammad directed or controlled Malvo's acts, as required by Virginia law in order to subject Muhammad to the death penalty. See Muhammad v. Virginia, 269 Va. 451, 611 S.E.2d 537, 553-56 (2005). While the letters do not discuss Muhammad directly, (J.A. 1534-43) Muhammad argues that the letters could be used to demonstrate that Malvo was not malleable and could think independently of Muhammad. The district court and the Supreme Court of Virginia determined that the letters were largely cumulative because there was trial testimony that also indicated that Malvo could think independently. Given this, the conclusion of the state courts in this regard was not unreasonable.

Let it be clear that we by no means condone the actions of the Commonwealth in this case. As a matter of practice, the prosecution should err on the side of disclosure, especially when a defendant is facing the specter of execution. When questioned at oral argument regarding why this information was withheld or why the Commonwealth did not take the step of instituting an open-file policy, the Commonwealth had no explanation. Yet, at this stage of the criminal process, we deal only with actions that were clear violations of the Constitution. While not admirable, the Commonwealth's actions did not violate the Constitution. Even if the withheld evidence were exculpatory, Muhammad cannot show that he was prejudiced by any nondisclosure. The jury determined that he murdered several people, the evidence against him in most instances was compelling, and any number of the killings could serve as the one predicate killing necessary for his conviction. See Griffin v. United States, 502 U.S. 46, 49, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991) (“[A] general jury verdict [is] valid so long as it was legally supportable on one of the submitted grounds-even though that gave no assurance that a valid ground, rather than an invalid one, was actually the basis for the jury's action.”). Thus, we find no constitutional violation.

B.

Muhammad's next set of claims involves his belief that his trial attorneys were ineffective because they did not object to his representing himself despite evidence that indicated brain abnormalities and difficulties processing and communicating information. In order to establish a claim of ineffective assistance of counsel, Muhammad must first “show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, Muhammad must demonstrate that “the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id.

Muhammad alleges that his trial attorneys were informed of three abnormalities in an MRI taken prior to his October 20, 2003, request to represent himself: a) a shrunken cortex, b) a cavum septum pellucidum, and c) an abnormal shortening of the corpus callosum. The shrunken cortex shows “the loss of vital brain tissue that control's [sic] an individual's ability to analyze information, organize, control and direct his behavior and emotions, solve problems and learn from his own experiences.” (Pet'r's Br. 24.) Muhammad claims that this is the result of severe beatings he received as a child. The cavum septum pellucidum is a space in the brain that should close during childhood, but Muhammad's did not. He notes a relationship between a cavum septum pellucidum and psychoses and schizophrenia. There is a similar relationship between schizophrenia and a shortened corpus callosum.

Additionally, Muhammad presents a topographic display that shows the damage to his brain, as indicated by shades of color. (Pet'r's Br. 27.) The display was created for his habeas petition, but Muhammad alleges that his trial attorneys knew the information at the time of his pro se request. Moreover, an IQ test, the WAIS-III, indicated that his performance was below seventy-three percent of other men his age. Dr. Dorothy Lewis, a psychiatrist, determined that although Muhammad could display a “superficial brightness,” (J.A. 2549) FN3 he was not competent to represent himself ( Id.; see also J.A. 2052-54).FN4 Finally, Muhammad alleges that his trial attorneys knew that he had been diagnosed with schizophrenia and bipolar disorder. Muhammad contends that all of this evidence should have led his trial attorneys to object to his representing himself and prevented them from calling him “very bright” when the judge questioned them about Muhammad's ability to represent himself. (J.A. 214-15.)

FN3. Although Dr. Lewis references the period from September through October 2003-before Muhammad's first trial-in her declaration, the declaration is dated December 2007 and was prepared for Muhammad's federal habeas proceedings below.

FN4. Dr. Lewis's competency evaluation, dated March 27, 2006, was prepared for Muhammad's Maryland trial, not the Virginia trial at issue, although it was utilized during his state habeas proceedings.

Even if we assume that his attorneys should have objected to Muhammad's self-representation, the state and district courts found that Muhammad did not show that he was prejudiced, since he represented himself for only two days during the government's presentation of its case, and his defense attorneys were heavily involved as standby counsel, preserving objections to the government's evidence and attempting to “play as full a role as the court [would] allow.” (J.A. 215.) Muhammad points only to the fact that eighteen witnesses were presented, including the government's sniper expert, and that he made ramblings in front of the jury that damaged its view of him. However, Muhammad does not point to any evidence that was improperly received and considered by the jury, or any potentially prejudicial piece of evidence. Thus, the decision of the state courts on Muhammad's IAC claim was not an unreasonable application of clearly established law.FN5

FN5. We note that Muhammad desires us to factor into our consideration the standard for competence to stand trial set forth in Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) (quoting Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam)): “whether a criminal defendant ‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him.’ ” Specifically, Muhammad asks the Court to consider whether there is a “reasonable probability ... that, had his trial counsel raised the issue of his competency, he would have been found incompetent.” (Pet'r's Br. 61.)

Muhammad's claim, however, is one of ineffective assistance of counsel, not mental incompetence to stand trial. The two are separate inquiries, and Muhammad does not pursue the latter. Instead, he argues that if his attorneys had raised the competency issue, then the judge would have possibly ordered a competency hearing, and “if examined for competency, there is at least a reasonable probability that Muhammad would not have been found competent to represent himself.” (Pet'r's Br. 65-66.) But even if all of the conditions in Muhammad's far-fetched hypothetical had been met, the result simply would have been an inability to represent himself. It is by no means certain that the judge would have gone further to rule him incompetent to stand trial.

At oral argument, counsel for Muhammad contended that it was structural error to allow the appellant to represent himself while incompetent. But again, Muhammad's competence is not at issue, and it is unclear how structural error should factor into our analysis at all since it would require us to presume Muhammad to be incompetent. Indeed, it is unclear whether a structural error even exists in the form in which Muhammad wishes to use it. See Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (noting that the Supreme Court has “found an error to be ‘structural,’ and thus subject to automatic reversal, only in a very limited class of cases” and listing cases that do not encompass the present situation (internal quotation omitted)). We would only be speculating if we were to hold that, had his counsel objected, Muhammad (possibly) would have been found incompetent and that, moreover, he was indeed incompetent and therefore it was structural error to allow him to represent himself during that limited portion of his trial in which he did so. We reject this argument and find that the Strickland standard alone, not in conjunction with the Drope standard, applies to this case.

C.

According to Muhammad, the district court further erred when it excluded all defense expert testimony during the penalty phase of his trial as a sanction for failing to submit to an interview by the Commonwealth's psychiatrist. Muhammad had planned to present the opinion of Dr. Mark Cunningham, a psychologist who had interviewed Muhammad's friends and family, in order to show how his upbringing influenced his subsequent adult actions, including the shootings at issue. Muhammad did not plan to use Dr. Cunningham in order to present a psychiatric defense to his crimes. Instead, he argues, Dr. Cunningham would have been used only in mitigation so that he would receive life imprisonment instead of death. The defense attorneys concluded that they could not introduce the lay testimony without Dr. Cunningham because “only Dr. Cunningham could provide the jury a conceptual basis for assessing Muhammad's moral culpability and understanding the truly mitigating character of this evidence.” (Pet'r's Br. 41.)

The lay testimony that the defense attorneys would have presented included accounts from Muhammad's sister, Aurolyn Williams, who would have testified that their mother died of breast cancer while they were young. The children then moved into their grandparents' three-bedroom house, where they lived with twenty other people and were beaten, forced to eat black-eyed peas separately from everyone else every night, prevented from entering the house during the day, and never told their birthdays until they were older. Another of Muhammad's sisters, Bessie Williams, would have testified similarly. His brother, Edward Williams, would have testified about how their uncle, Felton Holiday-a reform school guard convicted of battery with a dangerous weapon in 1962 for beating a minor to death-constantly attacked them. Muhammad was allegedly forced to place his hand on a spark plug while his grandfather, Guy Holiday, pulled the cord.

According to the Supreme Court of Virginia: Consideration of Muhammad's arguments on these matters requires a clear understanding of what the trial court ruled concerning these issues. The trial court ruled that Muhammad could not present expert testimony on mitigation factors at sentencing because of his refusal to abide by the trial court's order to submit to an evaluation by the Commonwealth. The trial court did not bar the presentation of non-expert testimony on this issue. Thereafter, Muhammad sought the ability to present limited expert testimony purporting not to be based upon expert interviews. The Commonwealth objected. The trial court overruled the Commonwealth's objection and gave Muhammad the opportunity to present evidence out of the presence of the jury that would allow the trial court to rule on its admissibility. Muhammad did not take advantage of this invitation. Only after all the evidence was presented at the sentencing phase and both parties rested their case did Muhammad offer an affidavit as a proffer of Dr. Cunningham's testimony. He may not be heard to complain about the exclusion of Dr. Cunningham's limited testimony when he did not give the trial court the contemporaneous opportunity to evaluate its admissibility. Muhammad v. Virginia, 619 S.E.2d at 47 (emphasis added). Pursuant to its Rule 5:25,FN6 the Supreme Court of Virginia found that Muhammad had waived his argument about the trial court's failure to allow Dr. Cunningham to testify only as to his risk for future dangerousness. Additionally, we emphasize once more that the trial court did allow Muhammad to present the testimony outside of the presence of the jury so that the court could determine its admissibility, but Muhammad chose not to take advantage of the opportunity. The district court found this claim therefore to be procedurally defaulted, and our precedent supports this decision. E.g., Weeks v. Angelone, 176 F.3d 249, 270 (4th Cir.1999).

FN6. The Rule states: “Error will not be sustained to any ruling of the trial court or the commission before which the case was initially tried unless the objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable this Court to attain the ends of justice.”

The district and state courts also found that Muhammad knowingly waived his right to present expert mitigation testimony: “Muhammad is correct that limiting the evidence that a criminal defendant may present in his defense implicates numerous constitutional rights. What Muhammad fails to appreciate is that he may, by his knowing and informed decisions, waive such rights.” Muhammad v. Virginia, 619 S.E.2d at 48. The trial court informed Muhammad, pursuant to Va.Code Ann. § 19.2-264.3:1 (2003), that if he did not submit to a psychiatric evaluation by the government's experts, he would not be able to present expert testimony of his own. Muhammad indicated that he understood. (J.A. 79-80.) After Muhammad refused to be examined by the government's psychiatrist, the trial court once again questioned him about the consequences of his doing so, and he once again indicated that he understood. (J.A. 170.) Thus, the state court's determination that Muhammad waived the presentation of expert mitigation evidence was neither inconsistent with the facts in the record nor contrary to clearly established law.

Muhammad believes that the outcome of this claim is governed by Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality), and Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988), and not by Buchanan v. Kentucky, 483 U.S. 402, 107 S.Ct. 2906, 97 L.Ed.2d 336 (1987), which the district and state court relied upon. In Buchanan, the Supreme Court held that “if a defendant requests [a psychiatric] evaluation or presents psychiatric evidence, then, at the very least, the prosecution may rebut this presentation with evidence from the reports of the examination that the defendant requested.” Id. at 422-23, 107 S.Ct. 2906; see also Savino v. Murray, 82 F.3d 593, 604 (4th Cir.1996) (“When a defendant asserts a mental status defense and introduces psychiatric testimony in support of that defense, he may face rebuttal evidence from the prosecution taken from his own examination or he may be required to submit to an evaluation conducted by the prosecution's own expert.”) The district and state courts read Buchanan to uphold Virginia's rule requiring Muhammad to submit to reciprocal examination if he wanted to present his own expert testimony. Muhammad argues, how ever, that he did not purport to present psychiatric evidence, just evidence of his “reduced moral culpability” due to his family background. (Pet'r's Br. 84.) However, Dr. Cunningham would have performed a psychiatric evaluation on Muhammad that could have informed his view of Muhammad's background. Hence, the state also was entitled to perform an evaluation, and the state courts' so holding is reasonable in light of the Supreme Court's decision and our precedent.

D.

Muhammad believes that the district court erred when it did not allow him the full 365-day statutory filing period in order to file his habeas petition and when it limited the petition to fifty pages. Upon subsequent motions by Muhammad, the district court extended its original sixty-day deadline by thirty days, raised the page limit to eighty pages, and granted Muhammad leave to amend the petition within ninety days from that deadline. Muhammad did as the court instructed. Three months after the court's deadline, but before the expiration of the statute of limitations, Muhammad filed another motion to amend along with his second amended petition, which Muhammad contends developed his Brady claims more extensively. The district court denied leave to amend. We review these claims for abuse of discretion. Hill v. Ozmint, 339 F.3d 187, 193 (4th Cir.2003).

According to 28 U.S.C. § 2244(d)(1) (2006): “A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” Muhammad cites no case law that has found that a district court must grant a petitioner an entire year in order to file his habeas petition. Moreover, even if we assume that the district court erred in denying Muhammad an entire year in which to file his petition, “the trial court's error must have a ‘substantial and injurious effect or influence in determining the jury's verdict.’ ” Tuggle v. Netherland, 79 F.3d 1386, 1393 (4th Cir.1996) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)).

Muhammad claims that if he had been allowed the full limitations period, he would have been able to produce more inconsistent testimony, more exculpatory witness statements, more evidence that Muhammad and Malvo were not at the Parker shooting, evidence that a shooter in a white box truck was responsible for the Ramos shooting (including evidence that one Danaus Ford drove a white box truck that contained gunshot residue and owned a .223-caliber firearm, claimed to be God, and had unsuccessfully attempted to get into sniper school), and he would have developed the claims in his first amended petition at greater length. However, Muhammad's problem is that, given the abundance of evidence against him, none of these things likely would have resulted in a different outcome, and thus he can show no prejudice. Therefore, any error in denying Muhammad the full statutory period in which to file his petition was harmless.

E.

Finally, Muhammad argues that the district court erred in not providing him with expert assistance or with an evidentiary hearing to develop his claims of ineffective assistance of counsel and incompetence. According to the district court, “the record, viewed in light of the forecasted evidence, would not entitle the petitioner to an evidentiary hearing on his claims, nor would the petitioner be able to win on the merits regardless of the experts' findings.” (J.A. 2987.) The district court is given discretionary authority to provide for expert assistance by 18 U.S.C. § 3599(f) (2006):

Upon a finding that investigative, expert, or other services are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or the sentence, the court may authorize the defendant's attorneys to obtain such services on behalf of the defendant and, if so authorized, shall order the payment of fees and expenses therefor....

Moreover, 28 U.S.C. § 2254(e)(2) provides: If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that- (A) the claim relies on- (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

Given the foregoing discussion of Muhammad's IAC and incompetence claims, and the deficiencies therein, the district court's decisions to deny further expert assistance and to deny Muhammad an evidentiary hearing were not abuses of discretion. See Wright v. Angelone, 151 F.3d 151, 163 (4th Cir.1998).

IV.

After a full review of the record and Muhammad's claims, we conclude that we must affirm the decision of the district court. Muhammad's petition for a writ of habeas corpus is hereby denied.

AFFIRMED

Muhammad v. State, 934 A.2d 1059 (Md.App. 2007). (Direct Appeal)

Background: Defendant was convicted by a jury in the Circuit Court, Montgomery County, James L. Ryan, J., of six counts of first-degree murder. Defendant was sentenced to six terms of life imprisonment without the possibility of parole, to be served consecutively with each other and to be served consecutively with any previously imposed sentences in other jurisdictions for crimes committed in the course of the same murder spree. Defendant appealed.

Holdings: The Court of Special Appeals, Charles E. Moylan, Jr., J., retired, specially assigned, held that: (1) evidence demonstrated unequivocally that defendant freely and intelligently asserted his constitutional right to self-representation; (2) evidence was legally sufficient to support a finding that defendant had “received a copy of the charging document containing notice as to the right of counsel” and that applicable subsection of “waiver of counsel” rule was thereby satisfied; (3) evidence supported trial court's decision that defendant was competent to stand trial; (4) decision of trial judge not to initiate the formal process for obtaining witnesses from out of state was not an abuse of discretion; (5) any error in precluding defendant from calling one of his standby counsel to testify was harmless; (6) trial judge did not abuse his discretion in allowing the State to introduce into evidence the prior recorded testimony of medical examiner from Alabama; (7) trial court did not abuse its discretion by declining to question three prospective jurors more specifically about a reported conversation that was overheard by a fourth prospective juror during voir dire; and (8) trial judge did not abuse his discretion in denying defendant's request for, “[o]ne more question,” following State's redirect examination of witness. Affirmed.

CHARLES E. MOYLAN, Jr., Judge, retired, specially assigned.

For 22 days in October of 2002, Montgomery County, Maryland, was gripped by a paroxysm of fear, a fear as paralyzing as that which froze the London district of Whitechapel in 1888. In Whitechapel, however, the terror came only at night. In Montgomery County, it struck at any hour of the night or day. In Whitechapel, all of the victims were prostitutes. In Montgomery County, every man, woman, and child was a likely target. The body count in Whitechapel was five; in Montgomery County the death toll reached six. The name of the Whitechapel terrorist has never been discovered. In Montgomery County, their names are John Allen Muhammad and Lee Boyd Malvo.

After a month-long trial in May of 2006, a Montgomery County jury, presided over by Judge James L. Ryan, convicted the appellant, John Allen Muhammad, of 1) the October 2, 2002, first-degree murder of James Martin; 2) the October 3 first-degree murder of James Buchanan; 3) the October 3 first-degree murder of Premkumar Walekar; 4) the October 3 first-degree murder of Maria Sarah Ramos; 5) the October 3 first-degree murder of Lori Lewis Rivera; and 6) the October 22 first-degree murder of Conrad Johnson. Judge Ryan sentenced John Muhammad to six terms of life imprisonment without the possibility of parole, to be served consecutively with each other and to be served consecutively with any previously imposed sentences in other jurisdictions (including a death sentence in Virginia) for crimes committed in the course of the same murder spree.

Ironically, it is John Muhammad who is aggrieved at the way he was treated by Montgomery County, as he now complains 1. that Judge Ryan erroneously failed to comply with Maryland Rule 4-215, when he permitted the appellant to discharge counsel and to proceed pro se; 2. that Judge Ryan erroneously conducted a competency hearing and erroneously found the appellant to be competent to stand trial; 3. that Judge Ryan erroneously denied him a fair trial by refusing to permit him to call a number of witnesses in his defense; 4. that Judge Ryan erroneously permitted the State to present the prior recorded testimony of Dr. Emily Ward; 5. that Judge Ryan erroneously refused to remove the trial from Montgomery County; 6. that Judge Ryan erroneously refused to question the jury venire about a possibly disqualifying conversation reportedly overheard by one prospective juror; 7. that Judge Ryan erroneously allowed the State to cross-examine an officer about compliance with the discovery requirements and erroneously instructed the jury with respect to such compliance; 8. that Judge Ryan erroneously refused to allow the appellant to recross-examine a State's witness; and 9. that the cumulative effect of all of the above denied the appellant a fair trial.

The Epicenter of Montgomery County

Although the reign of terror perpetrated by Muhammad and Malvo ultimately spread over seven separate jurisdictions and involved 10 murders and 3 attempted murders, the epicenter was unquestionably Montgomery County. Six of the ten murders were committed in Montgomery County. The terror began in Montgomery County on Wednesday evening, October 2, 2002. The terror ended in Montgomery County on Tuesday evening, October 22, 2002.

Seized with epidemic apprehension of random and sudden violence, people were afraid to stop for gasoline, because a number of the shootings had occurred at gas stations. Schools were placed on lock-down status. On one occasion, Interstate 95 was closed in an effort to apprehend the sniper. A multi-jurisdictional state and federal task force was formed to cope with the crisis. “Hot lines” to receive tips were created by both the Montgomery County Police Department and the Federal Bureau of Investigation. Over 60,000 tips were ultimately received. The sense of dread that hovered over the entire community was immeasurable. The six lives that were taken were but a part of an incalculable toll.

1. James Martin

James Martin was a systems analyst for the National Ocean and Atmospheric Administration. At just after 6 P.M. on October 2, 2002, he was standing in the parking lot of a Shoppers Food Warehouse in Wheaton. Three witnesses heard a “loud bang” as Martin clutched his chest, gave a cry for help, and collapsed to the ground. He died almost immediately from a bullet fired into his back.

It was determined that the shot had been fired from the rear of the parking lot. There was later recovered from Muhammad and Malvo, on October 24, a Bushmaster XM-15 semiautomatic .223-caliber rifle with a muzzle velocity of approximately 3,000 feet per second. The autopsy of Martin showed that his injuries were consistent with those inflicted by a .223-caliber bullet fired from a Bushmaster rifle. The medical examiner testified that a .223-caliber bullet fired by a high velocity weapon leaves a distinctive and extremely devastating injury, as it did to Martin, because the bullet fragments when it hits the body, causing “a tremendous amount of damage.”

When Muhammad and Malvo were apprehended on October 24, they were in a dark colored 1990 Chevrolet Caprice with New Jersey license tag number NDA 21Z. At about 10:50 A.M. on the day that Martin was killed, an officer on patrol near Aspen Hill took note of the Caprice and its New Jersey tags stopped in a traffic lane. It was occupied by two black males. A records check showed that it was registered to John Allen Muhammad. Because there were no outstanding warrants, the officer did nothing further. At about 10 P.M. that night, four hours after Martin's killing at the Wheaton Shoppers Food Warehouse, a police detective, checking the White Flint Mall parking lot because of a rash of car thefts that had occurred there, noted the presence of Muhammad's car with the New Jersey tags on the lot. The security guard spoke with John Muhammad on the parking lot. He was not wearing any shoes and the guard suspected that he was homeless. Muhammad stated that he was traveling with his son and he pointed to an old, dark blue car with New Jersey license tags. The guard told him that he had to move the car before the parking lot was locked up for the night. The guard ran a check on the tags, found no improprieties, and did nothing further. When she returned to the area around midnight, Muhammad and the car were gone. The encounter had no special significance for her at the time.

2. James Buchanan

The senseless killing of October 2 escalated into a murderous rampage by the morning of October 3. James Buchanan, who owned and operated a landscaping business, was mowing the lawn at the Fitzgerald Auto Store near the White Flint Mall at about 7:45 A.M. Gary Huss, an employee at the auto store, heard a “loud bang” but looked around and saw nothing. A minute or two later, another employee rushed into his office and said that “someone was dead on the parking lot.” Another employee had also heard a “loud shotgun blast” and saw Buchanan grab his chest, stumble toward the gate, and fall. Buchanan lay dead with a “huge wound” to his chest. The post-mortem examination revealed that a single bullet had entered Buchanan's body from the back. The wound was consistent with one caused by a .223 rifle shot fired by a high velocity weapon.

3. Premkumar Walekar

No more than 40 minutes after Buchanan was killed, Premkumar Walekar, a taxi driver, was filling his car with gasoline at a nearby Mobil station. Dr. Caroline Namrow was also at the gas station when she heard a “very loud bang” and then saw Walekar walk toward her, pleading, “Call an ambulance.” Walekar collapsed to the ground and Dr. Namrow called 911 on her cell phone. She then attempted to administer CPR, but to no avail. Walekar was pronounced dead en route to the hospital.

The autopsy revealed that the fatal wound was from a long-range shooting. The examiner described a wound showing a “lead snowstorm” effect inside Walekar's chest, consistent with the firing of a high velocity rifle, such as a .223 rifle. After the October 24 arrest of Muhammad and Malvo, a ballistics examination showed that the lead fragments found in Walekar's chest had definitely been fired from the Bushmaster rifle recovered from Muhammad's car.

4. Maria Sarah Ramos

Less than 30 minutes later, Maria Sarah Ramos, a 32-year-old wife and mother who worked as a housecleaner, was shot through the head and died instantly. She was sitting on a bench at Leisure World Plaza, waiting for her employer to pick her up. A resident of a nearby retirement community was walking to the mailbox when he heard a “huge explosion” and saw Mrs. Ramos “slump over” with blood “pouring from her head.”

The autopsy revealed that she had been shot at long range by a high velocity rifle. Officer Cynthia Martin discovered a bullet hole in the window of the Crisp and Juicy Restaurant just behind the bench where Mrs. Ramos had been sitting. A detective recovered a bullet fragment lying on the restaurant floor. The ballistics examination confirmed that the bullet fragment had been fired from Muhammad's Bushmaster rifle.

Kerry Turner worked for a doctor just across from where Maria Ramos had been sitting on the bench. As Ms. Turner parked her car that morning, she saw a dark blue Chevrolet Caprice, which she described as “beat up,” as the only other car on the lot. She noted Mrs. Ramos sitting on the nearby bench. From inside her office, she subsequently looked out the window and saw Mrs. Ramos slump over with blood pouring from her head. Ms. Turner subsequently identified Muhammad's car as the one she had seen on the parking lot on the morning Mrs. Ramos was shot.

5. Lori Lewis Rivera

Lori Lewis Rivera was a 25-year-old nanny who was vacuuming her mini-van at a Shell station when she was fatally shot in the back a few minutes after 10 A.M. that same day. Maria Welsh had been loading groceries into her car on the parking lot of a Safeway store just behind the Shell station on Connecticut Avenue when she heard a “loud bang.” As she drove away from the Safeway, she saw a woman lying on the ground near the vacuum cleaner at the nearby Shell station. The woman was calling for help, and Ms. Welsh called 911. When help arrived, Ms. Rivera had no pulse.

The autopsy revealed a gunshot wound to the back with no exit wound. The wound was consistent with one inflicted by a high velocity rifle. The ballistics examination revealed that the bullet taken from Ms. Rivera had been fired from John Muhammad's Bushmaster rifle.

At about the same time that Ms. Rivera was shot, Fred Lofberg, an accountant, was leaving his office to go to a 10 A.M. appointment in Kensington. As he drove past the Shell station where the shooting occurred, he noted, in the center lane of traffic, a blue Chevrolet in “stock condition” with original paint, tires, and hubcaps. He also noticed an odd rust spot on the back, dark tinted windows, and a New Jersey license tag. His observation took on significance to him when, as he returned home, he heard helicopters overhead and then heard a television report about the shooting at the Shell station.

6. Conrad Johnson

By the night of October 3, the vortex of carnage had moved beyond Montgomery County into 1) the District of Columbia; 2) Prince George's County, Maryland; and 3) four separate counties in northern Virginia. For the last of the 13 shootings and 10 murders, however, the scene of the crime, on October 22, returned to Montgomery County. At just before six A.M., Conrad Johnson, a husband and father of two sons and a bus driver, was shot while stepping out of his bus. A police officer found Johnson lying on the floor of the bus, bleeding from his chest but still conscious. Doctors were unable to control the extensive hemorrhaging and Johnson died on the operating table. The ballistics examination confirmed that the bullet that killed him had been fired by John Muhammad's Bushmaster rifle.

The officers who responded to the scene of the shooting searched a nearby wooded area. They found a black duffel bag, a single left-handed brown glove, and a note which had been placed inside two plastic ziplock bags and attached to a tree. What turned out to be Malvo's DNA was found on one of the ziplock bags and on the glove. Muhammad could not be excluded as the source of DNA extracted from a hair found on the duffel bag. The note declared, as had two earlier notes in Prince George's County and in Ashland, Virginia, “For you, Mr. Police, call me God.” The note also taunted the police for their “incompetence” and warned that “Your children are not safe. Can you hear us now? Do not play these childish games with us. You know our demands. Thank you.” The note concluded, “Next person, your choice.”

One police witness placed Muhammad's car, with the tinted windows and the New Jersey tags, in the Aspen Hill area at 6:30 P.M. that evening. When the tags checked out, however, the officer concluded that he had no reason to stop the car. Another witness placed both Muhammad and Malvo at a YMCA in Silver Spring at 11 A.M. on the morning that Johnson was shot.

The Outback Steak House is located one-quarter of a mile away from where Johnson was shot. Monica Schiffman, an employee of the steak house, served and had a conversation with John Muhammad at the Outback on the night before the shooting. Muhammad was sitting at a table with a lap top computer. He told Ms. Schiffman that the food he had just eaten there had made him sick and that he just wanted to sit for a while. Ms. Schiffman refunded the price of the meal. He left at about 11:30 P.M. Ms. Schiffman watched as he got into his car, which she described as a four-door, dark blue car with tinted windows. Muhammad's picture was recorded by a surveillance tape over the door of the steak house.

When the Chevrolet Caprice was searched following the arrest of Muhammad and Malvo on October 24, the police recovered a glove matching the one that was found near the scene of Johnson's murder and a receipt for the duffel bag found at the same location. Also recovered was a lap top computer, which contained, in an “Allah 8” file created on October 10, such language as, “To whom it may concern, call me God. We are offering you a way out. These are our terms,” followed by a demand for five million dollars to stop the killings. Several maps had been saved on the computer, including two marked with skull and crossbones push pins at the locations where James Martin and James Buchanan had been killed. A handwritten note in the glove compartment included the phrase, “Call me God.” There were also recovered ziplock bags similar to those containing the note that was attached to a tree near the scene of the Johnson murder.

The Killing Zone Expands
1. District of Columbia

By the night of October 3, the senseless rampage of killing had spilled over the Montgomery County line into the District of Columbia. At approximately 9:20 P.M., Pascal Charlot, a 72-year-old carpenter from Haiti, was shot and killed as he was crossing the street near the corner of Georgia and Kalmia Avenues. A witness, washing clothes at a nearby laundromat, heard a “loud pop” and then saw a man with a “big hole in his throat” lying on the ground. The autopsy described a single gunshot wound to the chest exhibiting the “lead snowstorm” attributes of a shooting with a high powered, high velocity rifle. The ballistics examination showed that the bullet that killed Pascal Charlot had been fired from John Muhammad's Bushmaster rifle.

Two hours before Charlot was killed, an officer had stopped the Chevrolet Caprice in the District of Columbia for running a stop sign. Muhammad was identified as the driver. No one else was visible in the car. When the license check revealed no improprieties, Muhammad was issued a verbal warning and that was it.

At about the time that Charlot was shot, Karl Largie was working at the nearby Tropicana Restaurant. He noticed a car parked on the side of the restaurant that appeared to him to be “out of place” and “creepy.” It was a Chevrolet Caprice with all original parts and dark tinted windows. Largie heard what he believed to be a “tire pop,” a sound which he described as “loud but muffled.” Largie then observed the car move off the parking lot very slowly with its lights turned off. In court, he identified the car in which Muhammad and Malvo were arrested as the same car he had observed on the night of Charlot's murder.

2. Fredericksburg, Virginia

By the next afternoon, that of October 4, the snipers had moved south into Virginia. At about 2:30 P.M., Caroline Seawell, a part-time substitute teacher, was shot outside a Michael's Craft Store in Fredericksburg as she was placing her purchases inside her car. As she was closing the car door, she felt a pain in her back and heard something hit her car. She realized that she had been shot and fell to the ground. A bullet had pierced her lung, diaphragm, and liver, but she survived. She was hospitalized for four days. The ballistics examination showed that the bullet that was removed from her body had been fired from John Muhammad's Bushmaster rifle.

Alex Jones was on the parking lot when Caroline Seawell was shot. He heard a “pop” and saw Ms. Seawell fall to the ground. He went to check on her and she told him, “I've been shot.” Fearing that he might also be a target, he got back in his car and started driving around the lot in a “zigzag” pattern. He got stuck behind a car that was moving very slowly. He noticed that it was a Chevrolet Caprice with tinted windows and a New Jersey license tag.

3. Prince George's County, Maryland

Thirteen-year-old Iran Brown was dropped off by his aunt at the Benjamin Tasker Middle School in Prince George's County, Maryland, at approximately 8 A.M. on October 7. As he waited in front of the school for the doors to be opened, he heard a loud bang and felt a sharp and sudden pain in his chest. He remembered nothing further until he woke up in the Children's Hospital one week later. His aunt testified that just after she dropped Iran off, she heard him screaming her name and saw him lying on the ground. She rushed him to the clinic just around the corner and called 911. Iran remained hospitalized for approximately two months. He suffered damage to many of his internal organs; he lost his spleen, parts of his pancreas and liver, and 80% of his stomach. The ballistics examination revealed that the bullet that pierced his body had been fired from John Muhammad's Bushmaster rifle.

Roger Polk, Jr., testified that a Chevrolet Caprice was parked on his apartment house parking lot, across from the Benjamin Tasker Middle School, throughout the night before Iran Brown was shot. At his mother's urging, he wrote down the number of the New Jersey license tag-NDA 21Z. After the shooting, the police searched a nearby woods and found a Tarot card with the handwritten message, “For you, Mr. Police. Code: Call me God. Do not release to the press.” Also recovered was a Bic pen with no ink cartridge and a shell casing. DNA matching that of Malvo was found on the Tarot card. Muhammad was deemed to be a potential contributor of the DNA found on the Bic pen.

4. Manassas, Virginia

Two days later, on October 9, the killers were back in Virginia. Dean Harold Meyers, a 53-year-old engineer, left his job in Manassas at about 8 P.M. He stopped at a Sunoco station in Manassas on his way home to Maryland. He was shot through the head and killed instantly. The ballistics examination established that the bullet that killed him, entering behind his left ear and then fragmenting, came from John Muhammad's Bushmaster rifle. The wound was consistent with a bullet fired from a high velocity rifle.

Officer Steven Bailey responded to a Bob Evans Restaurant across the street from the shooting and began stopping cars as they left the parking lot in order to question the occupants. He stopped a Chevrolet Caprice with tinted windows and asked the occupant, whom he later identified as John Muhammad, if he had heard or seen anything. Muhammad responded that he had not seen anything, and the officer let him proceed on his way. On that parking lot, the police found an ADC map of Baltimore. The fingerprints of both Muhammad and Malvo were found on that map.

One hour before Dean Meyers was shot, Linda Thompson, who works at a bank near the Sunoco station, left work. She saw an old Chevrolet parked in the very far right corner of the bank parking lot. She testified that the car was blue and had New Jersey license tags. She saw a young Afro-American male get into the car, while another Afro-American male was walking across the parking lot. At trial, she identified the younger man as Malvo and the older man as Muhammad. Concerned about security at the bank, Ms. Thompson actually spoke with Muhammad.

It was for this murder of Dean Meyers that Muhammad was tried and convicted by a jury in Virginia Beach on November 17, 2003. He was sentenced to death on March 9, 2004. The conviction and the sentence were affirmed by the Supreme Court of Virginia on April 22, 2005. Muhammad v. Commonwealth, 269 Va. 451, 619 S.E.2d 16 (2005), cert. denied, 547 U.S. 1136, 126 S.Ct. 2035, 164 L.Ed.2d 794 (2006).

5. Fredericksburg, Virginia

Two days later, on October 11, Kenneth Bridges stopped at an Exxon station just off Interstate 95 near Fredericksburg at 9:15 A.M. Virginia Police Officer David Gray was nearby, investigating an automobile accident, when he heard a “pop” and knew it was a gunshot. He heard on his scanner that someone had just been shot at the Exxon station. He responded immediately and found Kenneth Bridges lying dead on the ground.

The autopsy showed that Bridges had died from a gunshot wound to his back and that the wound was consistent with a shot having come from a high velocity weapon. The ballistics examination established that the lethal bullet had been fired from John Muhammad's Bushmaster rifle.

Shortly before Bridges was shot, Christine Goodwin noticed a dark car with heavily tinted windows and New Jersey license tags backing into a parking space near the Exxon station “at an odd angle.” Also observing the car was Patricia Bradshaw, who was having breakfast with her husband at the Waffle House near the Exxon station. She saw a “funky blue” car with dark tinted windows drive past the Exxon station very slowly. The car turned into the parking lot of a nearby Ramada Inn, backing into a parking spot. Moments later, she yelled for her husband to “get down” because there had been a shooting at the Exxon station. She could see Kenneth Bridges lying on the ground. She gave the police a description of the car she had observed.

6. Falls Church, Virginia

Three days later, on October 14, Linda Franklin, a 47-year-old F.B.I. intelligence analyst, had finished shopping at a Home Depot just outside Falls Church at approximately 9:15 P.M. She was killed immediately when the top of her skull was blown away by a sniper's bullet. The police arrived to find her husband crouched over her body, wailing. The autopsy revealed that the wound was consistent with one caused by a shot from a high velocity weapon. The ballistics test showed that the fatal bullet had been fired from John Muhammad's Bushmaster rifle.

7. Ashland, Virginia

Five days went by before the next shooting. On October 19 at about 8 P.M., Jeffrey and Stephanie Hopper were leaving the Ponderosa Steak House in Ashland, a few miles north of Richmond on Interstate 95. They were traveling south from Pennsylvania and had deliberately avoided stopping for gas in the Washington, D.C. area because of the rash of sniper shootings. As the two walked to their car, Jeffrey Hopper heard an “enormous explosion” and realized that he had been shot in the stomach. After extended hospitalization, he survived, but he lost most of his stomach and a part of his pancreas. The ballistics examination revealed that the bullet taken from his stomach had been fired from John Muhammad's Bushmaster rifle.

In a wooded area across from the Ponderosa, the police recovered a shell casing and a Cinna Rasin bag. Both Malvo's fingerprints and Malvo's DNA were found on the Cinna Rasin bag. Tacked to a tree was a ziploc bag with a note inside. Malvo's DNA was on the ziploc bag. The note bore the words, “For you, Mr. Police. Call me God. Do not release to the press.” On the back was a further note which referred to phone calls that had been placed to the police and to a priest in Ashland. Those calls had demanded ten million dollars in ransom money in order for the killings to stop. That note concluded, “ P.S. your children are not safe anywhere at any time.”

With the murder of Conrad Johnson in Montgomery County three days later, the killings in the Washington suburbs came to an end. Its toll consisted of ten deaths, three grievous woundings, and a metropolitan area of approximately four million people who had been subjected to three weeks of inexpressible terror.

The Alabama Connection

Between October 15 and October 21, four telephone calls were received by the police and one by a Catholic priest that threw light on this case. On October 15, a call was received by Amy Lefkoff, a dispatcher for the Rockville, Maryland police. A tape of the call was played for the jury. The message was: “Good morning. Don't say anything, but (unintelligible) the killers in your area. Look at the tarot card. (Unintelligible). Do not (unintelligible). We have called you two times before trying to negotiate. We've got no response. People are dying.” The caller hung up and never called back. The call came from a 703 exchange. The day before the call, on October 14 at 9:15 P.M., Linda Franklin had been murdered in Falls Church. The Falls Church area is within the 703 exchange.

Jumping ahead to the fifth and final call, the notes found in the woods after the shooting of Jeffrey Hopper on October 19 led the police to believe that the sniper might attempt to contact them at the Ponderosa Steak House. An F.B.I. agent arranged to reroute and monitor any such call. A call was received at 7:57 A.M. on October 21. The caller said “Hello” twice, and it then sounded as if a tape recorded message were being played. The message referred to earlier demands, the terms of which were non-negotiable. The message again concluded with the warning, “Your children are not safe.”

It was the second, third, and fourth calls that established the Alabama connection. In his testimony as a State's witness, to be discussed more fully infra, Lee Malvo stated that he and Muhammad had decided to place the calls because prior attempts to contact the police had been unsuccessful and because Muhammad “wanted to be taken seriously.”

A call on October 18 was received by Officer Derek Baliles at the Montgomery County media center. The caller was described as a male in his late teens. The call came from the number 804-752-2931. The 804 area code covers the Richmond area, including Ashland, where Jeffrey Hopper would be shot the next evening.

The caller began by telling its recipient to “just shut up and listen.” The caller claimed to have information about “snipers” but wanted Baliles to authenticate something first. The caller wanted Baliles to verify information regarding a shooting at a liquor store. Baliles was given the name of Police Sergeant Martino and a telephone number to contact him. The caller told Baliles that a shooting happened “somewhere on Ann Street,” that two people had been shot, and that one of them died. At that point an operator interrupted to say that more money had to be deposited. The line went dead.

Some time went by before the caller called back at 5:40 P.M., asking for “Officer Derek.” Officer Baliles told the caller that he had, in the meantime, confirmed the information previously given by the caller by contacting police authorities in Alabama. The caller then explained that he needed to get more coins to stay on the line. The line again went dead and there was no further contact.

The fourth call was placed at 9:00 P.M. that night to Father William Sullivan in Ashland, Virginia. The male caller made reference to “all these killings” and stated that “this lady didn't have to die.” The victim killed four days earlier had been Linda Franklin. The caller told Father Sullivan to “write this down” and he then spoke of the “robbery of a liquor store in Montgomery, Alabama.” The caller then concluded, “Mr. Police, I am God. Do not talk to the press.”

Officer Baliles had telephoned the number that had been given to him by the anonymous caller and found that he was connected to Sergeant Martino of the Montgomery, Alabama Police Department. Sergeant Martino confirmed that on September 21, 2002, there had been a robbery of an ABC Liquor Store on Ann Street in Montgomery, in the course of which two women had been shot. A young black male had been seen running from the scene. There was a police chase but the suspect got away. Lieutenant James Graboys, who participated in that chase, made a positive in-court identification of Malvo as the man he chased. In the chase, moreover, the fugitive dropped a magazine, which was a gun catalog called “Armor Light.” It subsequently developed that Malvo's fingerprints were on that gun catalog. Malvo himself testified that Muhammad and he had committed the liquor store robbery in Montgomery. Muhammad did the shooting of the two victims from the trunk of the Caprice, and Malvo ran up to rob the fallen victims.

One of the shooting victims, Claudine Parker, died that night from her wound. A bullet had entered her back, transected her spinal cord, and passed through her lung. The report of the medical examiner established that the wound showed a “snowstorm effect,” which is indicative of a shot from a high powered rifle. A subsequent ballistics examination showed that projectile fragments taken from the body of Claudine Parker had been fired from John Muhammad's Bushmaster rifle. Kelly Adams survived and described the man who ran past her after she was shot as an Afro-American with a thin build and very hairy legs. The bullet that broke her jaw in half, shattered her face and teeth, and paralyzed her left vocal cord had also been fired from John Muhammad's Bushmaster rifle.

A Fortuitous Breakthrough

The three-week siege of the Washington area had attracted nationwide attention. On October 17, 2002, Sergeant Roger Thomson of the Montgomery County Police Department received a call from Tacoma, Washington. The caller said that a John Williams had been involved in a divorce, that Williams had changed his name to John Muhammad, and that his ex- wife lived in the Washington, D.C. area. The caller also stated that Muhammad was regularly in the company of a “teenage boy” whom Muhammad referred to as “the sniper.”

When on October 23 the police learned that the fingerprints contained on the gun catalog left at the scene of the robbery and murder in Alabama were those of Lee Malvo, they forwarded a photograph of Malvo to their tipster in Tacoma. The tipster identified Malvo as the person whom John Muhammad had called “the sniper.” A check with the national Crime Information Center computer files showed that Muhammad owned a 1990 Chevrolet Caprice with the New Jersey license tag NDA 21Z. A lookout for that automobile was broadcast by the press later on that evening of October 23. The end game was afoot.

The Capture

Once the description of the Chevrolet Caprice with the New Jersey license tags went out over the air waves, it was just a matter of hours. One of those who heard the report was Whitney Donahue, a refrigerator repairman who worked in the Virginia/D.C. area. He stopped at a rest area on Interstate 70 west of Frederick at 11:30 that night and spotted on the parking lot a car matching the description that had been broadcast. He immediately called 911 and the police arrived within ten minutes.

Because the darkly tinted windows made it impossible to determine whether the occupants of the car were asleep, the final assault was carefully planned. Numerous F.B.I. agents assisted in the arrest. At 1:30 A.M. on October 24, teams of agents and police, wearing protective gear, charged across the open parking lot and smashed out the side windows of the Caprice. Muhammad and Malvo were taken into custody, and the Washington metropolitan area breathed a long-withheld sigh of relief.

The “Killing Machine”

Muhammad and Malvo were arrested in the blue 1990 Chevrolet Caprice sedan that had New Jersey license tags NDA 21Z. Christopher Okiupski, the owner of the Sure Shot Auto Sales Company dealing in used cars in Trenton, New Jersey, testified that Muhammad purchased the Caprice from him on September 9, 2002. (The first of the shootings that occurred in this case took place in Montgomery, Alabama, on September 21, 2002.) Okiupski identified a photograph of the Caprice and he made an in-court identification of Muhammad as the man who purchased it. Ultimately, sixteen separate witnesses identified the Caprice as the vehicle they had seen at or near one of the shooting scenes at approximately the time of the shooting.

Muhammad made three trips to the Sure Shot Auto Sales Company before closing the deal on the third visit. The car had formerly been a police car. On the second visit, Muhammad and a male companion (not Malvo) took the car for a test drive, listened to the motor, opened and closed the doors, and generally checked everything out. The actual salesman who was with Muhammad and his companion came into the office to describe to Okiupski how the two had removed the back seat and then laid down in the trunk. Okiupski himself looked out and saw Muhammad “kind of lying inside” the trunk. On the third visit the deal for the car was closed.

After the purchase, Muhammad transformed the Caprice into what the prosecuting attorney, in closing argument, described as a “killing machine.” A hole that had not been there before was cut into the lid of the trunk, just above the license plate, through which a rifle barrel could be projected. The side and rear windows of the Caprice were heavily tinted, which they had not been before. The inside of the trunk lid, which at the time of the car's purchase had been white, was repainted dark blue, making it less visible when opened. Most significantly, the backrest of the rear seat had been modified so as to permit easy access into the trunk from inside the car. The backrest was split into two sections and each could be rotated outward to permit entry into the gunport that had been created in the trunk.

The Bushmaster

When the police team broke into the car on the early morning of October 24, Muhammad was found sitting on the back bench seat, which was partially rotated out from its normal position. Behind the other section of the rear seat, attached by a bungee cord for quick removal, was the Bushmaster rifle, with a live round in the chamber and live rounds in the magazine. A tripod was mounted on the muzzle end of the barrel. A right-handed brown glove was stuffed in the hole that had been cut in the trunk lid. It matched the left-handed glove that had been found at the site of the Conrad Johnson killing. An ATF firearms examiner testified that the Bushmaster was in good working order.

Also recovered from the Caprice was a rifle scope, hidden inside a sock; two boxes of .338 caliber magnum ammunition; and earplugs. There was testimony that the firing of a Bushmaster rifle, particularly in a closed area such as the trunk of an automobile, would be very painful to the ears of the shooter unless they were protected. Malvo's fingerprints and DNA were found on the Bushmaster. Muhammad's DNA was found on the rifle scope.

The ballistics examination ultimately revealed that the Bushmaster had fired the shells involved in four of the six killings in Montgomery County, in the Prince George's County shooting, in the District of Columbia murder, in all five shootings in Virginia, and in the murder in Montgomery, Alabama. In the other two Montgomery County murders, the lead fragments from James Martin's body and from James Buchanan's clothing had no identifiable characteristics.

Other incriminating evidence was recovered in the search of the Caprice. There was a wallet containing an AT & T calling card, which had been used near various crime scenes; two identification cards from different states with different names but both bearing the photograph of Muhammad; two walkie talkies; maps with both Bethesda and Silver Spring circled; a GPS device; and a note recording the task force tip line number and other phone numbers connected to the sniper murders.

In the Caprice at the time of the capture were various incriminating notations. A document examiner found “writing indentations” on the car manual found in the glove compartment. The indentations revealed the words “Call me God.” A voice recorder found in the Caprice contained the undeleted message, “We have given you a way out. You know our requests. You know our demands. And you know that it can be done. My advice to you is to take it because we will not deviate from what we told you to do. Thank you.” The voice on the tape was identified as the voice of John Muhammad.

A digital evidence expert from the F.B.I. laboratory was able to retrieve data that had been deleted from the seized laptop computer. That retrieved data included such phrases as “the truth of the Muhammad assassinations,” “people to die later,” “Officer Derek is dead,” and “priest called at 8.” In the hard drive were the words “To whom it may concern. Call me God.” There was also retrieved “Streets and Trips” software, which had been installed on September 29, 2002. On it were “skulls and crossbones” and “push pins” at various locations linked to specific sniper shootings.

Lee Boyd Malvo

At the time of this reign of terror in the Washington, D.C. metropolitan area, John Allen Muhammad was 41 years of age and Lee Boyd Malvo was 17. With respect to the six murders that occurred in Montgomery County between October 2 and October 22, 2002, Malvo entered a guilty plea to first-degree murder in each case. He was sentenced to six consecutive life sentences without the possibility of parole. Malvo had earlier entered guilty pleas in Virginia to the crimes that had been committed in Virginia.

He agreed to testify voluntarily as to all of the shootings that occurred in Maryland (including Prince George's County) and in Virginia. With respect to the crimes occurring in other jurisdictions, to wit, in the District of Columbia and in Alabama, he indicated that he would initially assert his Fifth Amendment right not to incriminate himself but that he would then testify when ordered to do so by the trial judge. Malvo testified for the major part of two full trial days. His testimony is transcribed on 468 pages of the trial transcript.

Malvo, who was born in Jamaica, was 15 years of age and was living with his mother on the island of Antigua when he first met John Muhammad. Malvo and Muhammad became close friends, with Muhammad frequently referring to Malvo as his “son.” Malvo felt that Muhammad “understood” him. Malvo soon began living with Muhammad and studying the teachings of the Nation of Islam. When shortly thereafter, Muhammad moved to Fort Lauderdale, Florida, Malvo moved with him and lived with Muhammad and Muhammad's three children.

For a short time Malvo rejoined his mother in Fort Meyers, Florida, but he and Muhammad stayed in close touch by telephone. Muhammad had, in the meantime, moved to Washington State. Malvo ultimately decided to leave his mother and to take a Greyhound bus to Washington State and to live again with Muhammad. It was there that Muhammad introduced Malvo to Earl Dancy. The three men often went to a rifle range, where Malvo was taught to fire an AK47, a 270 rifle, and a 306 rifle. According to Malvo, “I absorbed everything [Muhammad] taught me.” Malvo's time on the rifle range soon began to be focused exclusively on high powered rifles. Muhammad taught Malvo marksmanship and sniper tactics. Muhammad explained to Malvo that a .223-caliber hollow point bullet would create a “chainsaw reaction,” ricocheting and cutting everything in a victim's body.

It was during their stay in Washington State that Muhammad became increasingly angry over the fact that his wife had left and, with a court order, had taken the children. In July of 2002, Muhammad learned that his wife and the children were living in Clinton, Maryland. He announced to Malvo that the two of them were going to Washington, D.C. “to terrorize these people.” Muhammad asserted that, notwithstanding a court order awarding custody to the wife, “no white man in a black world is going to tell him when and where and why he cannot see his children.” It was shortly before their departure that Muhammad and Malvo stole the Bushmaster rifle from the Bull's Eye Gun Shop in Washington State. Muhammad explained that it was a good choice o f a weapon because the “ chances are if you get hit, you were going to die.”

Malvo described how the two then traveled to the east coast in August 2002, where they first conducted a surveillance of the home of Muhammad's wife and children. They then traveled to Trenton, New Jersey, where Muhammad purchased the Caprice. Muhammad had gotten the ideas for modifying the rear of the vehicle in order to turn it into an effective gunport for a sniper from an IRA manual. The two then traveled to Montgomery, Alabama, in order to test out the success of their modifications to the Caprice. It was at the scene of the September 21, 2002 shootings in Montgomery that Malvo, while fleeing the scene, dropped the IRA manual that contained his fingerprints.

The two then traveled to Montgomery County, Maryland, chosen as “the perfect area to terrorize” because “it was lower to upper middle class, well-off, mostly whites.” The two of them initially scouted out particularly effective spots for the shootings, measuring distances, and looking for areas that were populated, were without surveillance cameras, and with hiding places where shots could be fired without witnesses.

Malvo further elaborated as to the several stage strategy that Muhammad had devised. The first stage of the plan was to create general chaos by committing “six slayings a day for 30 days.” The second stage of the grand strategy, which they were preparing to put into operation at the time of their apprehension, was to “create more damage by using explosives with ball bearings or nails aimed at schools, school buses, and hospitals, especially children's hospitals.” The plan also included the use of explosives to kill police officers. The initial target for the second stage was to have been the City of Baltimore.

Malvo elaborated with respect to the plan to kill police officers: Baltimore was going to be the main center of phase two. Essentially what was going to happen is you would kill one police officer with a different weapon and it wouldn't be linked to the shootings, then dozens probably of officers would go to the funeral and then you would have improvised explosives. Q. You would have what? A. Improvised explosives. Q. Improvised explosives? A. Yes. Q. And what does that mean? A. It would be a mixture of C4 and some other stuff with ball bearings and nails. The first would be blow, it would blow and the projectiles would kill everyone at the scene. Then there would be secondary devices which would be for when ambulances came. (Emphasis supplied).

Indeed, Muhammad and Malvo had reconnoitered Baltimore. At approximately 12:30 A.M. on the morning of October 8, Officer James Snyder of the Baltimore City Police Department was on patrol when he noticed a blue Chevrolet Caprice parked at a Mobil station. He saw no one inside. He returned to the area at about 2:30 A.M. and saw the car still parked there. The car had New Jersey license tags. The officer found Muhammad sleeping on the front seat. He removed Muhammad from the car, asked for identification, and asked what Muhammad was doing there. Muhammad explained that he had just come from Virginia on his way to see his father in New Jersey and was tired. When the license check came back clean, the officer allowed Muhammad to leave the scene. Malvo, who at the time was a short distance away with the rifle, had it trained on the officer. He testified that he was prepared to shoot the officer if the officer attempted to arrest Muhammad.

Looking ahead to the second subcontention of the appellant's third contention, it behooves us to note, at this point in our summary of Lee Malvo's testimony, that all of the information thus far recounted came exclusively from Malvo. None of it was known to the police until Malvo informed them of it. The defense contention, therefore, that Malvo was “fed” this information by his first interrogator, Detective June Boyle, self-evidently could not apply to this portion of Malvo's testimony. We can, to this extent, at least trim down the subcontention.

Malvo then proceeded to testify, in thorough detail, about each of the six murders that were committed in Montgomery County. He testified as well about the murder of Pascal Charlot in the District of Columbia and about the shooting of Iran Brown in Prince George's County. He also described fully the three murders and two other shootings that took place in northern Virginia. Malvo also described in detail the September 21 robbery of the liquor store in Montgomery, Alabama, resulting in the murder of Claudine Parker and the serious wounding of Kelly Adams. Malvo also testified in complete detail abut the various efforts by Muhammad and himself to communicate with the police through telephone calls and through written messages left tacked to trees near various shooting sites.

The only inconsistency in Malvo's statements that ever surfaced concerned the detail of whether he or Muhammad had been the actual triggerman on various occasions. In his trial testimony, Malvo stated that he had been the actual shooter of Iran Brown in Prince George's County and of Conrad Johnson in Montgomery County. He stated that Muhammad had been the actual triggerman on all other occasions. Malvo acknowledged that he had made a prior inconsistent statement in that regard shortly after he was arrested, when he was questioned by Detective June Boyle in Virginia. On that occasion, Malvo claimed to have been the triggerman for all of the shootings. At the present trial, he explained why he had made that statement in Virginia. It was to save Muhammad from capital punishment, available only for triggermen. Malvo himself faced no threat of capital punishment because of his tender age. At trial, Malvo testified about the arrangement that he and Muhammad had agreed upon.

Q And when you spoke with Detective Boyle, did you tell her the entire truth? A No. Q Now, why not? A Muhammad and I had spoke earlier, and him being my, as I thought then, my father, I, it was said that I could die. And I'm a child, and if I say I'm the triggerman and take the responsibility for all these shootings, he said chances are I will not die. This is if you go to Virginia. If you're in the feds, don't say anything. Once I got to Virginia and I saw June Boyle, she introduced herself, I said “Where am I?” She said “You're in Fairfax, Virginia.” I said thank you. We went upstairs, and she asked me, she says “Can I speak to you.” I said yes, and from thereon on, I just showboated on everything. Q Who, when you were speaking with Detective June Boyle, who did you say had actually pulled the trigger in all of these shootings. A I told her I pulled the trigger in all the shootings. Q Was that true? A No. (Emphasis supplied). In the present case, of course, we are not dealing with a death sentence, and it makes no difference which of the two was the actual triggerman on any particular occasion. In Virginia, it might have mattered. In this case, it is a distinction without a difference.

Defense and No Defense

The only defense mounted by John Muhammad was to offer six witnesses in an effort to drag several red herrings across the prosecutorial trail. In view of the fact that 60,000 tips were received by the police during the course of the killings, inevitably many of those were false leads. It is those that Muhammad sought to exploit.

One of his witnesses testified that after Sarah Ramos was shot, he observed a white truck take off “really fast.” A second stated that after Pascal Charlot was shot, a red car, sitting next to her waiting for a light, took off and ran the red light. A third witness had seen a white box van near the place where one of the sniper shootings was reported, and a fourth had seen a white box truck near the place where Premkumar Walekar had been shot. A fifth witness noticed two men, one Caucasian and one Asian, near the Benjamin Tasker Middle School two days before Iran Brown was shot. The common denominator purpose was to suggest that someone else committed those crimes.

The sixth witness was Officer Ralph Daigneau, who had, pursuant to a tip following the Dean Meyers shooting, executed a search warrant for a residence in Virginia that turned up a cache of guns and ammunition. The officer explained, however, that both residents of the searched premises were absolutely eliminated as suspects in the Dean Meyers murder. The weapons, moreover, were submitted to the Alcohol, Tax and Firearm Division experts for examination, and none of them was connected in any way to the murders in this case.

John Muhammad himself did not take the stand to offer any defense. He was not, of course, required to do so. He was, on the other hand, permitted to do so. In any event, he chose not to do so.

A Juggernaut of Evidence

The appellant raises nine contentions of allegedly reversible error. Some of those contentions, moreover, consist of two or more subcontentions. We find no reversible error in any of those contentions or subcontentions. Were there occasional lapses or glitches? Of course there were, as inevitably would be expected in any trial of this length, complexity, and intensity. There were, however, no lapses or glitches of any major consequence in what was, in the last analysis, a meticulously prepared and superbly conducted trial.

Our judicial system has such a massive investment in a trial of this length and complexity, however, that it behooves us to support our decision in every way that it is possible to do so. Although our primary holdings will be that there was no error established by any of the respective contentions or subcontentions, there are also available a series of alternative holdings to support our affirmation of the judgments that we would be remiss in neglecting. With respect to each of the contentions and subcontentions, even if we were, purely for the sake of argument, to hypothesize error as to any one of them, we would nonetheless, in each and every instance, be persuaded beyond a reasonable doubt that such error was harmless. Fields v. State, 395 Md. 758, 763-64, 912 A.2d 637 (2006); State v. Logan, 394 Md. 378, 388, 906 A.2d 374 (2006); Brown v. State, 364 Md. 37, 42, 770 A.2d 679 (2001); Rubin v. State, 325 Md. 552, 578-79, 602 A.2d 677 (1992); Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665 (1976).

At this point in the opinion, as we conclude our summary of the evidence, it is appropriate to take note of the absolutely inundating sweep of the State's evidence. The guilt of the appellant was so massively and overwhelmingly established, in a dozen different ways, by the tidal wave of inculpatory evidence that it is inconceivable to us that the elimination of any hypothesized error, or series of hypothesized errors, could have made any difference whatsoever to the jury verdicts in this case.

As we take up each contention and subcontention, one by one, we will conclude each particular analysis by making brief reference to this alternative holding of “harmless error.” We may, on each such occasion, take note of the relative inconsequence of that particularized hypothesized error. As we look to the other pan of the balance scale, however, we will find no need to make further reference to the juggernaut of the State's case of guilt. For that purpose, our preceding summary will suffice and need not be repeated.

Contention I: The Constitutional Right To Represent Oneself

The first two contentions are inextricably intertwined. The first concerns Muhammad's assertion of his constitutional right to represent himself, pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The second concerns the scheduling of a hearing on Muhammad's competency to stand trial. It was an irresolvable conflict over the issue of competence that caused the final rift between Muhammad and the two attorneys from the Office of the Public Defender who had been representing him during the pretrial stages of the case.

Before Judge Ryan scheduled an emergency pretrial hearing on March 31, 2006, he had received a letter from Muhammad in which Muhammad asserted his intention to defend himself: Your Honor, I'm informing the court, from this time on I enter [sic] on representing mine [sic] self in this case. I'm asking the court, please, may I have stand-by counsel to assistance [sic] me in mine [sic] defense “ only.”

At the hearing on March 29, Muhammad clearly explained his position. I would not, I would not give up my rights to represent myself. I don't care what [counsel from the OPD] and them are saying. I am not incompetent. I have no problem with logical reasoning. I have no problem with understanding what is going on in the courtroom. I've asked [counsel] from day one, Your Honor, I mean from day one I've asked [counsel], I should say [counsel] specifically. When [counsel] came to visit me on death row [FN1] with Mr. Shapiro, John Shapiro introduced me to [counsel]. And at that moment, before I allowed [counsel] to speak, I said “[Counsel], I want you to know right now when I come to Maryland it is my intention to represent myself, and if you have a problem with that, being stand-by counsel, you need to let me know that right now.” ... It's no one that they have ever brought to me that I have not made that clear to. It is my intention to represent myself. FN1. Muhammad had been convicted of murder in Virginia and had been sentenced to death. (Emphasis supplied).

Muhammad made it very clear that if he did not represent himself, then nobody in the courtroom would be advocating the position that he wished to maintain. MR. MUHAMMAD: And I'm supposed to help [counsel] to convince the jury that I was insane when I committed these crimes that I had nothing to do with, so I can go to jail for the rest of my life. Your Honor, if I do that I would be insane. But unless I speak in the courtroom, there would be nobody in the courtroom trying to prove to the jury that I am sane and I had nothing to do with these crimes. That's insanity, Your Honor. (Emphasis supplied).

Judge Ryan first determined that Muhammad was competent to stand trial, an issue we will consider in fuller detail when we turn to the second contention. Although counsel had been representing Muhammad with respect to various pretrial matters-a scheduling conference on September 2, 2005; another scheduling conference on September 23, 2005; and a motions hearing on March 6, 2006, regarding 1) access to discovery, 2) severance, and 3) the admissibility of “other crimes” evidence-it was only immediately before the March 31 hearing that they filed a suggestion that Muhammad be declared incompetent to stand trial. That suggestion was filed over the strenuous objection of Muhammad himself. He alleged that the suggestion was nothing but a stratagem to “trump” his asserted intention to defend himself, a decision with which counsel vigorously disagreed.

[W]hen these people are [claiming] that Muhammad doesn't have the capability to use logic or reason to understand what is going on in a trial is, it doesn't make any sense, because [counsel] have tried tremendously to get me, to compel me to give up my rights to defend myself. And when they decide that that couldn't work, then they bring this doctor in here, who in Virginia I had a problem with.... And [counsel] now when they've realized that they cannot compel me to give up my rights to represent myself, all of a sudden they're going to get this person whom they've known has a preconceived notion that Muhammad should not be representing himself because she feels that I'm guilty. And the more I tell her that I'm innocent, the more she look at me like I just came off a spaceship from another planet. Your Honor, I am not incompetent. This is [counsel's] way of trying to circumvent my rights over the decision for me to represent myself. (Emphasis supplied).

It was clear that the decision to represent himself was no spur-of-the-moment impulse but the fully formed determination of Muhammad from the outset of the proceedings against him. Paul [DeWolfe] and them mind is made up simply because I said that I want to defend myself. They thought apparently that I was just speaking words and that eventually they was going to compel me to say okay, you all go ahead and take the responsibility of defending me. I never hinted in any other direction [than] that it is my intention to represent myself. Paul and them assumed that I was just speaking words. But now when I've expressed it to you, they have been trying to keep it away from you for months. Now that I've expressed it to you, all of a sudden Muhammad is incompetent, Muhammad is crazy. Your Honor, that's an insult to my family. It's insult to everything that I know and love. It's an insult to the military. It's an insult to everything that I've did in my life. Because Your Honor, if I'm incompetent now, I've been incompetent from the day I was born. (Emphasis supplied).

As Judge Ryan examined Muhammad's decision to represent himself, the extended exchange between them revealed a solid understanding on Muhammad's part of what was involved in such an undertaking. THE COURT: ... I want to explain to you, you have an absolute constitutional right to be represented by attorneys to defend you in these charges. You understand that. MR. MUHAMMAD: Yes, Your Honor. THE COURT: And you also have a constitutional right to represent yourself. Do you understand that? MR. MUHAMMAD: Yes, Your Honor. THE COURT: But the two are what we call mutually exclusive. MR. MUHAMMAD: I understand, Your Honor. THE COURT: You can't have both. MR. MUHAMMAD: I understand. Your Honor, I was never asking for a hybrid lawyer. I was never asking for a hybrid law situation.[FN2] FN2. See Parren v. State, 309 Md. 260, 523 A.2d 597 (1987).

THE COURT: And where did you hear about that word hybrid? Because I was going to ask you about that. MR. MUHAMMAD: Your Honor, I've done a lot more than just sit in a hole and watch four walls. I've asked for stand-by counsel. (Emphasis supplied). Muhammad understood the difficulties inherent in calling and in examining witnesses. THE COURT: Lawyers have skill in cross-examining witnesses, you understand that? MR. MUHAMMAD: Yes, Your Honor. THE COURT: And figuring out even what witnesses to call, if any. MR. MUHAMMAD: Yes, Your Honor. THE COURT: And they, lawyers particularly in criminal cases, serious ones like yours particularly, have an opportunity that you don't have to access to the State's Attorney's Office. Not that you couldn't speak to the State's Attorney, but they could just call them on the telephone pretty much any time they wanted, to talk about what evidence would be presented or witnesses. And you don't really have that ability, do you understand that? MR. MUHAMMAD: Yes, Your Honor. THE COURT: You have a right of trial through the representation of lawyers, and even, and by yourself if you want. But one of the rights that, or some of the rights that defendants have in criminal cases is the right to call witnesses. I already told you that. The right to confront the witnesses, cross-examine them, right to issue subpoenas on your behalf to require people to come to court to testify. The right to insist that the prosecution proves its case beyond a reasonable doubt is the burden that the State has. That's what lawyers do for defendants. And you understand that? MR. MUHAMMAD: Yes, Your Honor. THE COURT: And you don't want these lawyers to represent you, to help you do that? MR. MUHAMMAD: Not in the courtroom, Your Honor, no. Your Honor, I've asked [counsel] to give me the different rules and laws pertaining to stand-by counsel so I can know my rights that I have as far as stand-by counsel is concerned. I've asked for that almost from day one. THE COURT: Okay. Well, you understand if you do represent yourself at trial, it could hurt you. I mean you understand that, do you? MR. MUHAMMAD: Yes, Your Honor. (Emphasis supplied). Muhammad fully appreciated that acting as his own pro se lawyer, he would be required to follow the rulings of the trial judge. THE COURT: Okay. And you understand if you represent yourself you have to comply with all of the rules of court? MR. MUHAMMAD: That's why I've been asking for all the rules of evidence. I've asked for them repeatedly from day one as well. THE COURT: And I'm not suggesting you would, but if there came a time during the trial where you were difficult to handle and weren't complying with the rules, I wouldn't let you continue to represent yourself. MR. MUHAMMAD: Your Honor, this is your house. I understand. Yes. That makes sense. THE COURT: All right. So do you still want to represent yourself? MR. MUHAMMAD: Yes, Your Honor. (Emphasis supplied). Muhammad also professed to have an understanding of the voir dire process. THE COURT: Oh, yes, I forgot to ask you. That's one of the things I wanted to talk about today anyway. This is a jury trial, and we're going to pick a jury. You have a right to assist in the selection of jurors, and lawyers are really valuable in that process, give you, help you decide who to strike, who might be helpful. Do you understand that? MR. MUHAMMAD: Yes, Your Honor. I mean I don't have a problem in the lawyers assisting me in doing that. I really don't. And I understand the voir dire process. I shouldn't say process, but I understand voir dire. (Emphasis supplied).

Judge Ryan cautioned Muhammad against representing himself, but recognized his unassailable right to do so. THE COURT: So Mr. Muhammad, I understand you want to represent yourself, but I'm trying to tell you that's not a good idea. I said that at the beginning. There are a lot more disadvantages than advantages. If I permit you to discharge [counsel], do you understand that I'm not going to postpone the trial? MR. MUHAMMAD: Yes, I understand that, Your Honor .... .... THE COURT:-I want you to understand that I understand you want to represent yourself because you want to represent yourself. MR. MUHAMMAD: Yes, Your Honor. THE COURT: And not because you don't understand that lawyers can be very helpful to you, and that you're, in my opinion, making a bad decision. MR. MUHAMMAD: I understand what you're saying, Your Honor. THE COURT: Okay. Okay, then I'm going to grant your motion and permit you to represent yourself. (Emphasis supplied).

Muhammad asserted that he was ready and willing to abide by the law of evidence and by the rulings of the court. MR. MUHAMMAD: Your Honor, I don't want any special rules to change. I don't want nothing to change, because I mean from what you've told me I'm sure that you would continue to tell me that rules of evidence will apply in your courtroom. I expect to abide by those rules of evidence and I expect for those rules of evidence not to change simply because Muhammad is in your courtroom. (Emphasis supplied). As we assess the intertwined issues of Muhammad's competence not only to stand trial but to represent himself at that trial, we cannot help but take note of his quickness and sharpness in spotting a slip of the tongue on the part of others. THE COURT: Okay, let me talk to you some more.... [O]riginally today was set for me to deal with the matters you raised in your letter, which basically was that you want to represent yourself. Since I got that, you, Mr. DeWolfe and Mr. Shefferman, filed this suggestion of bankruptcy. MR. MUHAMMAD: I wish it was bankruptcy. THE COURT: Sorry about that. Incompetency. (Emphasis supplied).

Muhammad also demonstrated some understanding of both what stand-by counsel might be able to do by way of assisting him and also what limitations there might be on the role of stand-by counsel. MR. MUHAMMAD: Well, I was trying to get the understanding of what it means in Maryland. That's why I asked [counsel] to give me anything pertaining to it. But from what I understand thus far, a stand-by counsel can help me pertaining to any procedures outside of the courtroom. They can help me in the courtroom as well, as long as I ask them, you know, for questions. But they can't solicit any type of tactic or statement or anything pertaining to the questions I need to ask the witness or anything like that. I was just trying to get more detail on it pertaining to Maryland. And that's why I asked for the rules of, the procedure on having stand-by counsel. THE COURT: Okay. Well, you mentioned this hybrid representation, but there is some discretion on the part of a judge, in this case, me. I would have some discretion, and it would really go toward just the flow of the case, if you will, just to keep the right order and just keep thing on track. It may be that some type of hybrid would be permitted by me. We'll just have to wait and see. Did you understand what I said? MR. MUHAMMAD: Yes, Your Honor. (Emphasis supplied). Muhammad fully understood that the public defenders he had been working with might not be able to serve as stand-by counsel. THE COURT: ... What's going to happen if the Public Defenders Office tells these lawyers they can't act as stand-by lawyers? You'll be here all by yourself. MR. MUHAMMAD: Your Honor, I came out of my mother's womb all by myself. THE COURT: Yes, but that, look, and I don't mean to be disrespectful to what you just said, that's all. That's different than being in here on trial, charged with six murders. MR. MUHAMMAD: I understand that, Your Honor. THE COURT: So that answer is not sufficient. MR. MUHAMMAD: Your Honor, if they choose to say no, then it's fine, Your Honor, if they choose to say no. That's why I asked them initially, tell me now, and if it's no then it's okay. (Emphasis supplied).

Muhammad exhibited an understanding of the charges against him and of the possible penalties. A Your Honor, I understand that I'm here because these people have accused me of killing six people, okay, and there's an assortment of other people they have accused me of killing as well, or attempted to kill, okay. I understand that there's specifically six counts that I'm brought up on here in Maryland, but there's other ones that's added to it to show me leading up to committing these crimes. I understand the penalty if I'm found guilty. Q What is the penalty? A Well, thus far from what I've learned they have dropped it, capital, as far as the death penalty, and now it's life in prison. (Emphasis supplied). A later exchange supplemented that knowledge of the possible penalties by adding to the list life imprisonment without the possibility of parole. THE COURT: Okay. Now we talked about this earlier, but you understand that you're charged with six separate counts of first-degree murder. MR. MUHAMMAD: Yes, Your Honor. THE COURT: And each of those charges carries with it a possible penalty, punishment of up to life in prison. MR. MUHAMMAD: Yes, Your Honor. .... THE COURT: ... What Ms. Winfree's just reminded me of is the State has put you on notice that it's asking that any, if you're found guilty, that the sentence of life be that without possibility of parole. Do you understand that? Did you know that before? MR. MUHAMMAD: Yes, Your Honor. Yes (Emphasis supplied).

When Judge Ryan pointed out that the State would be using scientific evidence, Muhammad responded: A Yes, I understand that, too. Yes. I understand the DNA. I understand the ballistics. I understand the doctors' reports. I understand the experts' analysis pertaining to reconstruction. I understand all of that, Your Honor. (Emphasis supplied).

Muhammad protested again his competence to defend himself. A Your Honor, if I felt that I was not up to the task to handle myself in a courtroom, I would have informed you. If I don't know how to do something, Your Honor, if I don't know how to present myself in a manner, I would seek guidance and I would seek assistance. If I felt that I should not be doing this without the assistance of counsel, I would have informed you of that, Your Honor ... There's no reason at all why I should be denied my rights by allowing people to circumvent my rights because I won't give them up freely .... Your Honor, it really, it makes me upset to even think that it's on the record by my name that I have some type of mental disorder. If I have a mental disorder, Your Honor, then Rosa Parks had a mental disorder because she didn't get up off that seat. (Emphasis supplied).

When probed by Judge Ryan as to why he wanted to represent himself, Muhammad emphatically insisted that it was because “I can best present my case.” THE COURT: But I understand your request to be that you want to represent yourself; it didn't matter who your lawyers were. MR. MUHAMMAD: Yes. Yes. THE COURT: You just, you want to represent yourself. MR. MUHAMMAD: Yes, Your Honor. Because I feel that I can best present my case. THE COURT: Okay. Well, tell me why. MR. MUHAMMAD: Because, Your Honor, I've learned in Virginia the more and more I would tell my lawyers to do something, they go in a totally opposite direction. Whenever I tell them or ask them to ask a certain question or to present a certain piece of evidence, they feel it's not appropriate for it to be presented. Yet the State have already presented it, and I asked to them expound on it more, and they won't do it. And Paul and Brian and them have expressed the same type of characteristics as Peter and John have. But even if they haven't, Your Honor, I still have made it very clear before any of this have even arose at all, it is my intention to represent myself. So none of this has anything to do with me not cooperating with Paul .... I've always decided. I told Peter and John that from the beginning that it's my intention to represent ... Your Honor, I know me and I know my capabilities, and I know my limitation. And if I felt that I was limited in any kind of way in adequately representing myself in the trial, I would have informed you of that. It is not my intention to lose. It is not my intention to do anything except abide by the Court's rules and abide by the evidence and rules of evidence. (Emphasis supplied).

Judge Ryan disagreed with Muhammad's decision but acknowledged that Muhammad had made a knowing, wilful, and intelligent decision to represent himself. THE COURT: Well, Mr. Muhammad, let me say this, that your, in my judgment your dissatisfaction with [counsel] doesn't really have much merit to it. I have ruled that you, I haven't said the words yet, but that you are competent, I have said that, and that I believe you're knowingly and willfully and intelligently deciding to represent yourself. I'm going to permit you to represent yourself. But I don't think it's the right decision, and it isn't because you're not getting good representation. And I believe [counsel] are very competent lawyers, and have represented you competently. (Emphasis supplied). Faretta v. California

The hearing of March 29, 2006, consuming an entire day, was devoted exclusively to resolving the intertwined issues of 1) Muhammad's competence to stand trial and 2) Muhammad's constitutional entitlement to represent himself. During the course of that hearing, there was no mention of Maryland Rule 4-215. Although ardently opposing Muhammad's decision to discharge them and to represent himself, former defense counsel never once alluded to the Maryland rule. Neither did the prosecutors nor the trial judge nor the appellant himself.

At this juncture, however, defense counsel choose to pose their primary contention on this appeal not in terms of Muhammad's constitutional right to pro se representation and to the steps required to effectuate that right; they rely instead exclusively on the alleged failure of the trial court, sua sponte, to satisfy every jot and title of the Maryland rule. We believe, on the other hand, that casting the contention in constitutional terms will provide a clearer focus on the fundamental and overriding principles that are in play.

The Sixth Amendment to the Constitution of the United States grants to every criminally accused the right to the assistance of counsel. Although no mention has been made of the counterpart provision of the Maryland Declaration of Rights, Article 21 thereof has always been interpreted in pari materia with the Sixth Amendment. State v. Campbell, 385 Md. 616, 626 n. 3, 870 A.2d 217 (2005); Fowlkes v. State, 311 Md. 586, 589, 536 A.2d 1149 (1988); Parren v. State, 309 Md. 260, 262-63 n. 1, 523 A.2d 597 (1987); Leonard v. State, 302 Md. 111, 119 n. 1, 486 A.2d 163 (1985); Sites v. State, 300 Md. 702, 712 n. 3, 481 A.2d 192 (1984). The coexistence of 1) the right to counsel and 2) the “correlative right” to dispense with counsel and represent oneself was first alluded to by Justice Frankfurter for the Supreme Court in Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942). The right to assistance of counsel and the correlative right to dispense with a lawyer's help are not legal formalisms. They rest on considerations that go to the substance of an accused's position before the law.... [ T]he Constitution does not force a lawyer upon a defendant. He may waive his Constitutional right to assistance of counsel if he knows what he is doing and his choice is made with eyes open. (Emphasis supplied). Cautioning against the excessive protection of one aspect of a right at the expense of a correlative aspect of the right, the Supreme Court admonished that we must be careful not “to imprison a man in his privileges and call it the Constitution.” 317 U.S. at 280, 63 S.Ct. 236. Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), posed the question squarely of whether there is a constitutional right to pro se representation and then answered that question in the affirmative.

The question before us now is whether a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. Stated another way, the question is whether a State may constitutionally hale a person into its criminal courts and there force a lawyer upon him, even when he insists that he wants to conduct his own defense. It is not an easy question, but we have concluded that a State may not constitutionally do so. (Emphasis supplied).

Justice Stewart's opinion for the Court stressed that the paramount consideration is judicial deference to the defendant's choice. The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be “informed of the nature and cause of the accusation,” who must be “confronted with the witnesses against him,” and who must be accorded “compulsory process for obtaining witnesses in his favor.” Although not stated in the Amendment in so many words, the right to self-representation-to make one's own defense personally-is thus necessarily implied by the structure of the Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails. 422 U.S. at 819, 95 S.Ct. 2525 (emphasis supplied).

The Supreme Court further observed that the right of self-representation is not to be “considered inferior to the right of assistance of counsel.” In sum, there is no evidence that the colonists and the Framers ever doubted the right of self-representation, or imagined that this right might be considered inferior to the right of assistance of counsel. To the contrary, the colonists and the Framers, as well as their English ancestors, always conceived of the right to counsel as an “assistance” for the accused, to be used at his option, in defending himself. The Framers selected in the Sixth Amendment a form of words that necessarily implies the right of self-representation. That conclusion is supported by centuries of consistent history. Id. at 832, 95 S.Ct. 2525 (emphasis supplied).

A state, no matter how nobly motivated, simply may not “compel a defendant to accept a lawyer he does not want.” [I]t is one thing to hold that every defendant, rich or poor, has the right to the assistance of counsel, and quite another to say that a State may compel a defendant to accept a lawyer he does not want. The value of state-appointed counsel was not unappreciated by the Founders, yet the notion of compulsory counsel was utterly foreign to them. And whatever else may be said of those who wrote the Bill of Rights, surely there can be no doubt that they understood the inestimable worth of free choice. Id. at 833-34, 95 S.Ct. 2525 (emphasis supplied). The right to represent oneself is not a second-class right that may be casually shunted aside.

Maryland has consistently followed Faretta v. California in recognizing the constitutional right to pro se representation. State v. Campbell, 385 Md. 616, 626-27, 870 A.2d 217 (2005) (“[T]wo fundamental rights ... are guaranteed by the Sixth Amendment to the United States Constitution: the right to the assistance of counsel and the right of self-representation.”); Gregg v. State, 377 Md. 515, 548, 833 A.2d 1040 (2003) (“The Supreme Court reasoned that the Sixth Amendment to the United States Constitution grants the accused not only the right to be represented by counsel, but also the right to make his own defense without the assistance of counsel.”); Johnson v. State, 355 Md. 420, 441-42, 735 A.2d 1003 (1999) (“Conversely, a defendant also has a constitutional right to self-representation.”); State v. Brown, 342 Md. 404, 412-13, 676 A.2d 513 (1996) (“[T]wo rights ... are fundamental to our system of criminal justice: the defendant's right to counsel, and the defendant's right to self-representation.”); Fowlkes v. State, 311 Md. 586, 589, 536 A.2d 1149 (1988) (“Under the Sixth Amendment, a defendant also has an independent right to reject the assistance of counsel and to elect to represent himself.”); Parren v. State, 309 Md. 260, 263-65, 523 A.2d 597 (1987) ( “[T]here are only two types of representation constitutionally guaranteed-representation by counsel and representation pro se-and they are mutually exclusive.”); Leonard v. State, 302 Md. 111, 121, 486 A.2d 163 (1985); Snead v. State, 286 Md. 122, 123-27, 406 A.2d 98 (1979) (“It is now clear that an accused in a criminal prosecution has two independent constitutional rights with regard to the management of his defense. He has both the right to have the assistance of counsel and the right to defend pro se.”); State v. Renshaw, 276 Md. 259, 267, 347 A.2d 219 (1975). See also McKaskle v. Wiggins, 465 U.S. 168, 176-77, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (“The right to appear pro se exists to affirm the dignity and autonomy of the accused and to allow the presentation of what may, at least occasionally, be the accused's best possible defense.”).

The problem, of course, is that the right to counsel and the correlative right to pro se representation are not, and in the nature of things cannot be, literally equal. There is, to begin with, an inherent psychic tension between them. They push in opposite directions. When, therefore, those opposing pushes are in a state of equilibrium, there must be a tiebreaker. The law does not say, for instance, that a defendant must intelligently and knowingly waive the right of self-representation before he may invoke the right to counsel. How then does the law handle the delicate balance between a preferred constitutional right and a non-preferred constitutional right when they are in opposition?

Of necessity, there is a presumption that when all else is equal, the right to counsel will prevail over the right to pro se representation.FN3 To rebut that presumption, there must be a “knowing and intelligent” waiver of the right to counsel in order to establish the correlative right to self-representation. Faretta v. California, quoting both Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and Adams v. United States ex rel. McCann, 317 U.S. at 279, 63 S.Ct. 236, set out the appropriate waiver standard. FN3. Judge Orth referred to the unavoidable disparity in treatment of the two mutually exclusive rights in Parren v. State, 309 Md. 260, 266, 523 A.2d 597 (1987):

When an accused is constitutionally entitled to the assistance of counsel, the right attaches to him without any affirmative action on his part. On the other hand, when an accused desires to represent himself he must assert that right, and its grant is conditioned upon a valid waiver of the right to assistance of counsel. (Emphasis supplied). Judge Cole had similarly noted the disparity in treatment of the two rights in Leonard v. State, 302 Md. at 119, 486 A.2d 163. The preferred right must be waived in order for the non-preferred right to be successfully invoked. The rights are mutually exclusive and the defendant cannot assert both simultaneously. The United States Supreme Court and other courts throughout the nation have thus sought to protect the right to counsel unless the defendant properly asserts his right to represent himself. The assertion of this right is conditioned upon a valid waiver of the right to assistance of counsel. (Emphasis supplied).

When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must “knowingly and intelligently” forgo those relinquished benefits. Johnson v. Zerbst, 304 U.S. at 463-465[, 58 S.Ct. 1019]. Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.” Adams v. United States ex rel. McCann, 317 U.S. at 279, 63 S.Ct. 236. 422 U.S. at 835, 95 S.Ct. 2525 (emphasis supplied).

In State v. Brown, 342 Md. 404, 414, 676 A.2d 513 (1996), Judge Raker thoroughly analyzed the steps that must be taken to invoke the right to pro se representation and pointed out that if Faretta, Johnson v. Zerbst, and Adams are satisfied that it would be “reversible error” to deny a request for self-representation.

If the defendant requests dismissal of counsel in order to proceed pro se, and if the proposal to discharge counsel is timely and unequivocal, the court must ordinarily grant the request. Faretta. By choosing self-representation, the defendant forgoes the right to counsel. Therefore, the court must conduct a waiver inquiry to ensure that any decision to waive the right to counsel is “made with eyes open.” (quoting Adams v. United States ex rel. McCann). The Sixth Amendment requires that the defendant's waiver of the right to counsel must be “knowing and intelligent.” Johnson v. Zerbst. Although courts have recognized several exceptions to the Faretta rule, these exceptions have been narrowly construed to effectuate the defendant's right to self-representation. Absent a recognized exception, refusal to grant a timely, unequivocal request for self-representation is reversible error. (Emphasis supplied).

The extended exchanges between Judge Ryan and the appellant at the hearing on March 29, 2006, demonstrated unequivocally that Muhammad freely and intelligently asserted his constitutional right to self-representation pursuant to Faretta v. California. His waiver of the right to counsel was unquestionably “knowing and intelligent” according to the waiver standard of Johnson v. Zerbst. He was fully apprised by Judge Ryan of the disadvantages likely accruing to him from the choice he made, but he nonetheless made that choice “knowing what he was doing” and “with his eyes open” according to Adams v. United States ex rel. McCann. The Constitution requires nothing more for the vindication of the fundamental right to self-representation. Indeed, the Constitution may not tolerate anything more than that. As Judge Eldridge noted in Fowlkes v. State, 311 Md. 586, 589, 536 A.2d 1149 (1988):

The interplay among the right to counsel, waiver of the right to counsel, and the Faretta right of self-representation, has posed problems.

In Faretta v. California, Johnson v. Zerbst, and Adams v. United States ex rel. McCann, the Supreme Court struck a finely calibrated balance between the conflicting and mutually exclusive right to counsel and right to self-representation. An additional thumb, no matter how nobly motivated, placed on either pan of that scale could throw the Supreme Court's delicately calibrated balance out of constitutional kilter. Gratuitous additional layers of protection bestowed on the right to counsel, for instance, would certainly seem to pose undue and unconstitutional burdens on the correlative right to self-representation. If, arguendo, they should be in collision with each other, a rule of court would unquestionably have to yield to a fundamental constitutional right. Maryland Rule 4-215, for instance, arguably smothering the right to counsel under layer upon layer of implemental protection, could readily be deemed to pose an unconstitutional burden on the assertion of one's right to self-representation. Language in some of the caselaw to the effect that the rule implements and protects, at one and the same time, each of the two conflicting rights is gobbledygook, worthy of a political spinmeister or a snake oil salesman. It adds additional protection to the right to counsel by making it more difficult to invoke the right of pro se representation. It protects one at the expense of the other.

Of two mutually exclusive rights, the one that you will retain if you waive nothing is self-evidently the preferred alternative. Every additional requirement imposed by the rules increases the likelihood that the preferred right, that of counsel, will not be lost. By inverse proportion, however, it decreases the likelihood that the non-preferred right of pro se representation will be successfully invoked. Such implementing rules, to be sure, may better protect the defendant, but only in the sense that the unspoken premise of the rulemakers is that the best way to protect the defendant is to burden, and thereby to discourage, the option of pro se representation. To say, however, that the rule provides implemental protection of the constitutional right to represent oneself is so much pompous nonsense. The rule does the very opposite of what it is, in that regard, purported to do.

The fact that Rule 4-215 goes further than is constitutionally required was first noted by Judge Raker in State v. Wischhusen, 342 Md. 530, 543 n. 10, 677 A.2d 595 (1996): Rule 4-215 imposes requirements that exceed constitutional standards. For example, the Rule requires the court to inform the defendant of the nature of the charges and the potential penalty. These duties need not be performed for the judge to satisfy the knowing and intelligent waiver standard of Johnson v. Zerbst, 304 U.S. at 464-65, 58 S.Ct. at 1023. (Emphasis supplied). Chief Judge Bell similarly made note of the fact that Rule 4-215 goes beyond what is constitutionally mandated in Richardson v. State, 381 Md. 348, 367 n. 11, 849 A.2d 487 (2004): It is important to note that Rule 4-215 imposes requirements that exceed constitutional standards. State v. Wischhusen, 342 Md. 530, 543, n. 10, 677 A.2d 595, 601, n. 10 (1996); see also Brown v. State, 103 Md.App. 740, 654 A.2d 944 (1995), aff'd, 342 Md. 404, 676 A.2d 513 (1996). (Emphasis supplied). And see Broadwater v. State, 171 Md.App. 297, 299, 909 A.2d 1112 (2006), aff'd, 401 Md. 175, 931 A.2d 1098 (2007), in which this Court pointed out that Rule 4-215 contains “stern directions far more unforgiving than the Sixth Amendment's right to the assistance of counsel itself.”

With respect to such excess coverage, it is clear that a defendant who wishes to represent himself and who has satisfied Faretta, Johnson v. Zerbst, and Adams but who has failed to satisfy one of the non-constitutional provisions of Rule 4-215 could be denied his constitutional right to pro se representation if the rule of court were permitted to “trump” the constitutional principle. It is inconceivable that the Supreme Court would countenance such a thumb on the scales of its finely calibrated balancing. FN4

FN4. Even “precise rubrics” can, if construed obsessively, become counterproductive. We take our guidance in this regard from the words of Judge Wilner (former Chief Judge of this Court, then on the Court of Appeals but specially assigned for the case) in Wiegand v. State, 112 Md.App. 516, 524-25, 685 A.2d 880 (1996), as he wrote for a panel that included Judge Cathell (also later on the Court of Appeals). While we fully understand that the Maryland Rules of Procedure are not merely helpful hints to practice and procedure in the courts but are instead “precise rubrics” intended to be followed, we surely do not believe that they should be interpreted to reach absurd and wholly unintended results. As with statutes, we are obliged to construe the rules to carry out the real intent of their promulgator. See also Best v. State, 79 Md.App. 241, 249, 556 A.2d 701 (1989):

A rule-any rule-does not exist for its own sake alone but only to serve an undergirding purpose. When in our judgment that undergirding purpose has clearly been served, we are not about to worry over whether there has been blind and literal obedience to the rule in the tradition of a Prussian drillmaster.

The fact that Rule 4-215(e), for instance, may provide more protection for the right to counsel than is constitutionally required may or may not pose a problem. A defendant might seek to discharge counsel, thus engaging the gears of Rule 4-215(e), for either of two very different reasons: 1) to obtain substitute counsel or 2) to represent himself pro se. A defendant's request to discharge is not a constant. The request may be handled differently and the response may have very different legal consequences depending upon the particular purpose giving rise to the request. Judge Raker recognized this difference in treatment contingent upon purpose in State v. Brown, 342 Md. 404, 413-14, 676 A.2d 513 (1996) (“The trial court's subsequent procedures depend on whether the defendant requests substitute counsel or self-representation.”). See also State v. Campbell, 385 Md. at 627-28, 870 A.2d 217. In Moten v. State, 100 Md.App. 115, 640 A.2d 222 (1994), reversed on other grounds, 339 Md. 407, 663 A.2d 593 (1995), the Court was discussing Rule 4-215(e) and the effort by the defendant to discharge counsel. After noting the failure of the trial court to determine whether there was a meritorious reason for the requested discharge, this Court noted that different consequences might accrue, depending upon the defendant's purpose in seeking the discharge.

We recognize that if appellant had requested new counsel, the court's failure to make such a determination would make the waiver ineffective. In this case, however, appellant did not ask for another lawyer. He made a strategic decision to represent himself. Id. at 123, 640 A.2d 222 (emphasis supplied). This disparity alone should help to convey the desperately needed message that with a package of almost infinitely diverse provisions such as Maryland Rule 4-215, one cannot approach it with the delusive mantra that one rule fits all.

Additional and constitutionally unrequired protection for the right to counsel is perfectly legitimate if it comes only at the expense of a defendant's desire to obtain substitute counsel. If, on the other hand, the constitutionally unrequired extra protection has a chilling effect on the fundamental constitutional right to represent oneself, that is, at the very least, another matter calling for another analysis. Our alternative holding with respect to this contention would be that if a provision of Rule 4-215 were violated and that provision were in excess of the constitutional requirements for an effective waiver, that provision of the rule would not be permitted to stand against what would otherwise be an entitlement to the Sixth Amendment right to self-representation according to established constitutional criteria.

Maryland Rule 4-215

In this case, however, it is not necessary to resolve a conflict between a fundamental constitutional right and an implementing rule of court because we find no violation of the implementing rule. Muhammad now claims that Judge Ryan erroneously failed to comply with Rule 4-215 when he granted his request to discharge the two assistant public defenders who had been representing him so that he could represent himself. We note the irony that Muhammad is now complaining about receiving from Judge Ryan the very ruling that he so earnestly desired and fought so long and hard to obtain.

Because Muhammad, on March 29, 2006, already had counsel whom he sought to discharge, the pertinent provision of Rule 4-215 is subsection (e).(e) Discharge of Counsel-Waiver. If a defendant requests permission to discharge an attorney whose appearance has been entered, the court shall permit the defendant to explain the reasons for the request. If the court finds that there is a meritorious reason for the defendant's request, the court shall permit the discharge of counsel; continue the action if necessary; and advise the defendant that if new counsel does not enter an appearance by the next scheduled trial date, the action will proceed to trial with the defendant unrepresented by counsel. If the court finds no meritorious reason for the defendant's request, the court may not permit the discharge of counsel without first informing the defendant that the trial will proceed as scheduled with the defendant unrepresented by counsel if the defendant discharges counsel and does not have new counsel. If the court permits the defendant to discharge counsel, it shall comply with subsections (a)(1)-(4) of this Rule if the docket or file does not reflect prior compliance. (Emphasis supplied).

Muhammad does not claim that there was any failure of compliance with subsection (e) except with respect to its last sentence, which incorporates the requirements of subsections (a)(1)-(4). That pertinent portion of subsection (a) provides as follows: (a) First appearance in court without counsel. At the defendant's first appearance in court without counsel, ... the court shall: (1) Make certain that the defendant has received a copy of the charging document containing notice as to the right to counsel. (2) Inform the defendant of the right to counsel and of the importance of assistance of counsel. (3) Advise the defendant of the nature of the charges in the charging document, and the allowable penalties, including mandatory penalties, if any. (4) Conduct a waiver inquiry pursuant to section (b) of this Rule if the defendant indicates a desire to waive counsel. (Emphasis supplied).

Subsection (a)(4) has no applicability to this case. The colloquies between Judge Ryan and Muhammad, moreover, show clear compliance with subsections (a)(2) and (3). Muhammad, indeed, makes no argument with respect to either of those subsections. His contention focuses exclusively on subsection (a)(1). Again ironically, Muhammad does not assert that he did not receive a copy of the charging document. He asserts only that Judge Ryan did not “make certain that the defendant ... received a copy of the charging document,” in literal compliance with subsection (a)(1). The complaint is only procedural, not substantive. The thrust of Muhammad's argument, as stated in his brief, is as follows: What the court utterly failed to do in this case is “[m]ake certain that the defendant has received a copy of the charging document containing notice as to the right to counsel” are required by 4-215(a)(1).... ....

The “precise rubrics” of 4-215 were not followed in the case at bar in that nowhere does the record demonstrate that Mr. Muhammad received a copy of the charging document including the advice of right to counsel. Thus, the court could not, without asking Mr. Muhammad directly, which it did not do, make certain that he had received a copy of the charging document as required by 4-215(a)(1). (Emphasis supplied).

As we focus in on subsection (a)(1), it is important not to treat all of the provisions of Rule 4-215 the same but to recognize the fundamental difference, in terms of essential character, between subsection (a)(1), which concerns the happening of an event, and most of the other provisions of Rule 4-215, which involve the actual and direct imparting of specific information by the judge to the defendant. Subsection (a)(2) and (3), for instance, deal with such specific advisements.

[T]he court shall: .... (2) Inform the defendant of the right to counsel and of the importance of assistance of counsel. (3) Advise the defendant of the nature of the charges in the charging document, and the allowable penalties, including mandatory penalties, if any. (Emphasis supplied).

Subsection (a)(1), by contrast, is of an entirely different nature. In Broadwater v. State, 171 Md.App. at 304, 909 A.2d 1112, this Court pointed out the difference in character between subsection (a)(1), on the one hand, and other subsections dealing with informational advisements, on the other hand.

With respect to the three absolute requirements, the first is, essentially, the court's confirmation that someone delivered to the defendant “a copy of the charging document containing notice as to the right to counsel.” The second and third requirements, concerning, respectively, 1) “the right to counsel” and “the importance of assistance of counsel” and 2) “the nature of the charges” and the “allowable penalties,” are actual advisements that must be made by the judge personally to the defendant on the face of the record. Some appreciation of the different natures of these three (or four or five) requirements will make an application of a sometimes overly generalized caselaw more sensitively possible. (Emphasis supplied).

As we pointed out, 171 Md.App. at 323, 909 A.2d 1112, subsection (a)(1) is in a class by itself and there is no need to treat it as one treats other subsections which are true advisements. It would not, however, apply to requirement # 1, by which the court only seeks information about an event (the delivery of a copy of the charging document). The recipient of information pursuant to requirement # 1 is the judge, not the defendant. The requirement is that “the court shall make certain” that the event (the delivery of the charging document) had at some earlier time actually taken place. This is not part of a message being aimed at the defendant. (Emphasis supplied).

Focusing in on subsection (a)(1), the only subsection being invoked by the appellant, we have already noted the fundamental difference between it and the other requirements of subsection (a). The others involve the process through which a judge imparts certain critical information to a defendant. Subsection (a)(1), unlike the other provisions, involves only the objectively measured question of whether “the defendant received a copy of the charging document containing notice as to the right to counsel.”

As Fowlkes v. State, 311 Md. 586, 609, 536 A.2d 1149 (1988), makes clear, the satisfaction of subsection (a)(1) does not require a judge to make inquiry of, or say anything to, a defendant in a courtroom. If evidence objectively establishes that the defendant actually received a copy of the charging document, moreover, the fact that the judge failed to “make certain” of that fact is immaterial. The very occurrence of receiving the document speaks for itself and ipso facto satisfies the subsection. The holding in this regard of Fowlkes v. State was unequivocal.

As to subsections (1)(1)-(3), the record contains a copy of the charging document in the defendant's case. This document, which bears the defendant's signature, contains a notice of the right to counsel; therefore, this document demonstrates compliance with subsection (a)(1). 311 Md. at 609, 536 A.2d 1149 (emphasis supplied).

We cite Fowlkes v. State not to suggest that the facts showing compliance in that case parallel the facts showing compliance in the case before us. That is another mater, and we will address it. We cite Fowlkes for the threshold proposition that if extrinsic evidence is legally sufficient to support a finding that the defendant indeed received a copy of the charging document, adequate compliance with subsection (a)(1) has been shown. Whether the judge himself did or did not do something or other in the courtroom is a redundant technicality.

The evidence in this case was clearly legally sufficient to support a finding that Muhammad had, indeed, “received a copy of the charging document containing notice as to the right of counsel.” Muhammad was indicted by the Montgomery County Grand Jury on June 16, 2005. That charging document was drawn in six counts, each charging a deliberate and premeditated murder in the first degree. Each respective count charged the murder of one of Muhammad's six murder victims in Montgomery County and gave the name of the victim and the date of each particular murder.

On June 16, 2005, the Deputy State's Attorney for Montgomery County filed in the circuit court a Motion to Issue a Bench Warrant pursuant to Maryland Rule 4-212(d)(2). The motion recited that the indictment against Muhammad had been handed down on that day, June 16, 2005. Rule 4-212(a) provides in pertinent part: When a charging document is filed ... a ... warrant shall be issued in accordance with this Rule. Subsection (d)(2) further provides, in pertinent part: (2) In the circuit court. Upon the request of the State's Attorney, the court may order issuance of a warrant for the arrest of a defendant ... if an indictment has been filed against the defendant; and (A) the defendant has not been processed and released pursuant to Rule 4-216, or (B) the court finds there is a substantial likelihood that the defendant will not respond to a summons. A copy of the charging document shall be attached to the warrant. (Emphasis supplied).

The Motion for the Issuance of the Bench Warrant further recited: 1. This is the original charging document and the Defendant has never been processed. 2. The issuance of a bench warrant will assure that the Defendant will be brought to court to answer for the charges filed in the instant matter. 3. The warrant will act as a detainer for the Defendant, who is in custody in another jurisdiction. (Emphasis supplied).

Rule 4-202(a), in turn, prescribes the necessary contents of a charging document. After listing those required factual allegations that an indictment itself must contain, the subsection goes on to spell out the notice that the person charged must also receive, explaining in detail that person's right to an attorney. The notice that was included as part of the charging document against Muhammad followed verbatim the language of Rule 4-202(a): TO THE PERSON CHARGED: 1. This paper charges you with committing a crime. 2. If you have been arrested, you have the right to have a judicial officer decide whether you should be released from jail until your trial. 3. You have the right to have a lawyer. 4. A lawyer can be helpful to you by: • explaining the charges in this paper; • explaining the possible penalties to you; • helping you at trial; • helping you protect your constitutional rights; and, • helping you to get a fair penalty if convicted. 5. Even if you plan to plead guilty, a lawyer can be helpful. 6. If you want a lawyer but do not have the money to hire one, the Public Defender may provide a lawyer for you. The Court Clerk will tell you how to contact the Public Defender. 7. If you want a lawyer but you cannot get one and the Public Defender will not provide one for you, contact the Court Clerk as soon as possible. 8. DO NOT WAIT UNTIL THE DATE OF YOUR TRIAL TO GET A LAWYER! If you do not have a lawyer before the trial date, you may have to go to trial without one.

On that same day, June 16, the Bench Warrant was issued by Judge Durke G. Thompson. There is also in the file a directive to the Clerk of the Circuit Court to furnish “a triple certified copy of the charging document in this case” and the further notation that it was “issued on 6-16-05.”

Muhammad, who had been convicted of first-degree murder and sentenced to death in Virginia, was at the time of his indictment in Montgomery County imprisoned in the Sussex I State Prison in Waverly, Virginia. Katherine Winfree, the Deputy State's Attorney for Montgomery County, filed on June 16 a Certificate of Service, attesting that she had on that date mailed a copy of the charging document package to John Allen Muhammad at the Sussex I State Prison in Waverly, Virginia. Because Muhammad was, as of June 16, 2005, imprisoned in Virginia, the Bench Warrant, as its application recited, would also serve as a detainer. Rule 4-212(f)(2) controls that situation and it provides, inter alia, that the defendant shall be “served with a copy of the charging document and warrant.”

There is also in the file evidence that Muhammad received a copy of the charging document on yet a second occasion. On the bottom of a copy of the Bench Warrant is a Return of Service from Sheriff Raymond M. Knight attesting that he had “served a copy” on Muhammad on August 22, 2005. With respect to such a Return of Service, Rule 4-212(g) provides: (g) Return of service. The officer who served the defendant with the summons or warrant and the charging document shall make a prompt return of service to the court that shows the date, time, and place of service. (Emphasis supplied).

As further evidence of receipt of the charging document by Muhammad, on that same day, August 22, the Public Defender's Office, representing Muhammad, filed a motion to waive the Bench Warrant hearing on the charges, noting that Muhammad had been indicted by the Montgomery County Grand Jury.

From that total predicate, we hold that the evidence abundantly supports the conclusion that Muhammad received “a copy of the charging document containing notice as to the right to counsel” and that subsection (a)(1) was thereby satisfied. Fowlkes v. State, 311 Md. at 609, 536 A.2d 1149; Moten v. State, 100 Md.App. 115, 121, 640 A.2d 222 (1994), reversed on other grounds by Moten v. State, 339 Md. 407, 663 A.2d 593 (1995).

Although the extended exchanges between Judge Ryan and Muhammad on March 29, 2006 may not, in and of themselves, prove that Muhammad had received a copy of the charging document, they do offer persuasive corroboration of that fact. Muhammad stated that he was charged with six counts of first-degree murder in Montgomery County. He knew that the death penalty had been dropped but that he faced the possibility of life imprisonment without parole on each count. At one point, before Judge Ryan cut him off, he began to list the specific names of the persons he was charged with killing.

Q Now, tell me what you understand in this jurisdiction, here in Maryland, are the nature of the charges against you. What do you understand you're being charged with? A I understand that I'm being charged with six counts of murder pertaining to, I think his first, last name is Walekar, Mr. Walekar? The second person- Q You don't have to tell me their specific dates and places and all the specific allegations. I just want to make sure you understand what you're charged with and how serious these charges are. (Emphasis supplied).

If Muhammad behaved as if he received a copy of the charging document (he did so behave), it is more likely that he received a copy than if he had not so behaved. Through the long and hard fought hearing of March 29, 2006, neither Muhammad nor anyone on his behalf ever complained of not having received a copy of the charging document. Even as of this appeal he makes no such complaint. Once again, we consider such behavior not as proof per se of compliance but as behavior corroborative of other proof. It is not without some evidentiary significant.

Throughout the entire day-long hearing, moreover, Muhammad exhibited a sophisticated understanding of both his right to counsel and his right to self-representation. If nothing else, Muhammad's detailed understanding of the charging document tends to corroborate the conclusion that he had, indeed, received a copy of the charging document. Maryland Rule 4-215(a)(1) was satisfied.

A Rule 4-215(a)(1) Violation As Harmless Error

As an alternative holding, we also conclude that even if, purely arguendo, we were to assume that Rule 4-215(a)(1) had been violated, we would still be persuaded beyond a reasonable doubt that such error was harmless in this case. Muhammad argues that a violation of Rule 4-215(a) may never be harmless error and he cites for that proposition Parren v. State, 309 Md. at 280-82, 523 A.2d 597, and Moten v. State, 339 Md. at 411-13, 663 A.2d 593. Both of those cases, however, dealt with violations of subsection (a)(3) and not with violations of subsection (a)(1).

We have already belabored the fundamental difference in character between subsection (a)(1) and subsection (a)(3). Subsection (a)(3) deals with the advising of the defendant by the judge of certain critical information. Subsection (a)(1) deals with an entirely different matter. What is true with respect to a subsection (a)(3) violation is not necessarily true at all about a subsection (a)(1) violation and the appellant cannot prove his point by simplistic analogy. Parren v. State, 309 Md. at 280, 523 A.2d 597, clearly concerned a subsection (a)(3) violation: [T]he trial court did not comply with that part of § (a)(3) which requires that “the court shall ... advise the defendant of ... the allowable penalties ...” (Emphasis supplied). The Parren Court went on, 309 Md. at 282, 523 A.2d 597: We hold that the noncompliance with that part of subsection (3) of § (a) of Rule 4-215 which requires that the trial court advise the defendants of the penalties allowed for the crimes charged against them, rendered their waivers of counsel ineffective. (Emphasis supplied).

The holding of the Court of Appeals in Moten v. State was equally tightly confined to a subsection (a)(3) violation. At the very outset of her opinion, Judge Raker clearly stated the precise issue before the Court. This case presents the question of whether a trial court's failure to advise a defendant who wishes to waive counsel of allowable penalties, as required by Maryland Rule 4-215, can be harmless error. We shall answer in the negative. 339 Md. at 408, 663 A.2d 593 (emphasis supplied). The Court followed its earlier holding in Parren.

We hold that under Parren v. State, 309 Md. 260, 523 A.2d 597 (1987), harmless error analysis is inapplicable to a violation of Maryland Rule 4-215(a)(3). 339 Md. at 409, 663 A.2d 593 (emphasis supplied). The violations in Parren and Moten were precisely the same. The defendants' convictions [in Parren ] were accordingly reversed, because “the noncompliance with that part of subsection (3) of § (a) of Rule 4-215 which requires that the trial court advise the defendants of the penalties allowed for the crimes charged against them, rendered their waivers of counsel ineffective.

Moten, like the defendants in Par[r]en, was not informed by the court of the allowable penalties for the charges pending against him. As in Parren, the advice given in this case is insufficient. 339 Md. at 411-12, 663 A.2d 593 (emphasis supplied).

As we have already discussed fully, subsection (a)(1) deals with a requirement of an entirely different nature. Even if we were to hypothesize, arguendo, a subsection (a)(1) violation, we are persuaded beyond a reasonable doubt that that fact would not have made any difference whatsoever to Muhammad's knowing and intelligent decision to waive the assistance of counsel in this case and to assert his constitutional right to represent himself. Muhammad's decision was not flawed by any lack of knowledge. A compelled reversal of the convictions in this case on the basis of something that clearly did not make any difference would be senseless.

We find legal support for our conclusion, moreover, in the decision of Chief Judge Murphy for this Court in Moten v. State, 100 Md.App. 115, 640 A.2d 222 (1994). In our Moten, this Court found violations of both subsections (a)(1) and (a)(3). We held that both were susceptible to harmless error analysis. The Court of Appeals reversed our holding with respect to a subsection (a)(3) violation. That part of Judge Murphy's opinion dealing with a subsection (a)(1) violation, on the other hand, was left untouched. It has never been reversed nor overruled. It is as of this moment the law of Maryland, and we shall follow it.

As in this case, Moten did not assert any ultimate prejudice but was content to rely exclusively on a procedural glitch. Appellant does not contend that the record fails to show whether he received a copy of the charging document. He argues instead that he is entitled to a new trial merely because when he asserted his right to self representation, Judge Wright failed to question him as required by the rule. 100 Md.App. at 120 n. 2, 640 A.2d 222 (emphasis supplied). Our ultimate conclusion was clear.

It is true that Judge Wright should have asked appellant whether he had received a copy of the charging document, which in this case was an indictment filed on December 8, 1992. The failure to ask that question, however, does not require a reversal of appellant's conviction. Id. at 121, 640 A.2d 222 (emphasis supplied).

Contention II: The Scheduling of the Competence

The appellant's second contention concerns Judge Ryan's ruling that he was competent to stand trial. That issue is so inextricably interwoven with the issue of his competence to represent himself pro se that it is impossible to separate them into watertight analyses. Everything that we have said in our resolution of the first contention bears with equal relevance on this second contention.

Competence to decide to represent oneself is the same thing as competence to stand trial. In Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993), the Supreme Court pointed out that the necessary competence to choose self-representation over the right to counsel requires ipso facto the same degree of competence that is required to stand trial, no more and no less.

This case presents the question whether the competency standard for ... waiving the right to counsel is higher than the competency standard for standing trial. We hold that it is not. 509 U.S. at 391, 113 S.Ct. 2680 (emphasis supplied). The Court elaborated: Nor do we think that a defendant who waives his right to the assistance of counsel must be more competent than a defendant who does not, since there is no reason to believe that the decision to waive counsel requires an appreciably higher level of mental functioning than the decision to waive other constitutional rights. Id. at 399, 113 S.Ct. 2680.

The defendant's skill, or lack thereof, in conducting a pro se defense, when that is the issue, is an irrelevant consideration. It is the understanding of what is going on that is the critical criterion.

In Faretta v. California, we held that a defendant choosing self-representation must do so “competently and intelligently,” but we made it clear that the defendant's “technical legal knowledge” is “not relevant” to the determination whether he is competent to waive his right to counsel, and we emphasized that although the defendant “may conduct his own defense ultimately to his own detriment, his choice must be honored.” Thus, while “[i]t is undeniable that in most criminal prosecutions defendants could better defend with counsel's guidance than by their own unskilled efforts,” a criminal defendant's ability to represent himself has no bearing upon his competence to choose self-representation. Id. at 399-400, 113 S.Ct. 2680 (emphasis supplied).

Judge Ryan properly found that Muhammad was competent to defend himself. One cannot be competent to defend oneself, however, if one does not understand what is going on in the courtroom. That understanding is the core requirement of competence to stand trial. The ability (not necessarily the willingness but simply the raw ability ) to be of assistance to one's attorney is implicit in the ability to be of assistance to oneself, if one is representing oneself. The two competencies are one and the same.

In Thanos v. State, 332 Md. 511, 519-20, 632 A.2d 768 (1993), Judge McAuliffe wrote for the Court of Appeals as it held that the defendant in that case was competent to discharge his attorneys and to represent himself. The Court cited Godinez v. Moran for the proposition that the “competency standards [are] the same for standing trial and for waiver, even though a valid waiver may require [the] additional finding that it was knowing and voluntary.”

In assessing competence, moreover, it is important to keep in the front of the mind that competence to stand trial (or to waive counsel) is a very different thing than criminal responsibility. It is far more a matter of raw intelligence than it is of balanced psychiatric judgment or legal sanity or of mental health generally. Because of the very nature of the subject, it is one in which a defendant's conversation with a judge may be far more revealing than a defendant's conversation with a psychiatrist or psychologist. The judge both speaks the language and understands the language of courtroom behavior and courtroom problems, which may sometimes be largely a foreign tongue to the most educated of psychiatrists. The two disciplines are very different, and the professor who is, in effect, marking the defendant's paper needs to be a master of the appropriate discipline.

In Maryland Code, Criminal Procedure Article, § 3-101(f), the Legislature has set out precisely the limited scope of the pertinent inquiry, as it defines “incompetent to stand trial” to mean “not able (1) to understand the nature or object of the proceeding; or (2) to assist in one's defense.” It is much more a function of rationality than of mental health generally, as Raithel v. State, 280 Md. 291, 299-300, 372 A.2d 1069 (1977) (quoting Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)), prescribes the two prerequisites to a finding of competency: “the accused must have a rational as well as factual understanding of the proceedings against him, [and] must at the trial have sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.” Gregg v. State, 377 Md. 515, 527, 833 A.2d 1040 (2003) (emphasis supplied). And see Thanos v. State, 330 Md. 77, 87, 622 A.2d 727 (1993).

In Gregg v. State, the Director of Forensic Psychiatry at the Crownsville Hospital had examined Gregg and concluded that “Gregg was not competent to stand trial because [he] the doctor believed the defendant did not have a ‘rational understanding’ of the charges against him.” Id. at 520, 833 A.2d 1040. On cross-examination, however, it was developed that the doctor's conclusion was based far more on the doctor's belief that Gregg would likely remain dangerous and repeat his criminal behavior once released than it did on Gregg's ability to perform in the courtroom. Id. at 520-22, 833 A.2d 1040. Notwithstanding the doctor's conclusion, the trial judge ruled that Gregg was competent to stand trial. In affirming the trial judge's determination, Judge Harrell pointed to the criteria that are far more pertinent than the ones relied upon by the psychiatrist.

Gregg's behavior at trial may be described as stubborn and argumentative at most. He responded appropriately to the judge's questions and his defense was in no way aberrant for a pro se defendant. He demonstrated both a rational understanding of the proceedings in which he was involved and of the relevant facts. Id. at 547, 833 A.2d 1040 (emphasis supplied).

Precisely the same type of exchange between the trial judge and the defendant was held to have been of pivotal significance, in affirming a decision of the trial judge not sua sponte to hold a competency hearing, in Johnson v. State, 67 Md.App. 347, 359-60, 507 A.2d 1134 (1986).

The judge's questions concerned not only appellant's understanding of the charges and of his rights, but also inquired into appellant's age, family history, educational background, work history, medical history and psychological history. Appellant answered all of the judge's questions in a rational, coherent manner. He also displayed a marked degree of sophistication about the law. While his legal skills were not those of a lawyer, he did appear to have gained some practical understanding of the law, perhaps through his prior confrontations with it. In sum, there is every indication in the record that appellant met the standard of competency to stand trial. (Emphasis supplied).

The defense (on this contention it is questionable whether that collective designation includes Muhammad himself or not) mounts a two-pronged attack on Judge Ryan's ruling that Muhammad was competent to stand trial. Procedurally, the defense alleges that Judge Ryan abused his discretion by going forward with a hearing on competence on March 29, 2006 rather than rescheduling the hearing for some later date. Substantively, the defense contends that the ultimate ruling itself was erroneous.

A. The Timing of the Hearing

The issue is not that of whether there would be a hearing on competence or whether Judge Ryan would make a ruling on competence. In this case, there was a hearing and there was a ruling. Both took place on March 29, 2006. The issue rather is simply one of when that hearing and ruling would take place. This is one of those calls concerning the scheduling and the management of a trial that invokes the abuse of discretion standard on the part of the trial judge.

The thrust of the argument made by the defense, largely on the basis of a recently prepared evaluation of Muhammad by Dr. Dorothy Otnow Lewis, was that the competency hearing should have been held on a later date so that Dr. Lewis could be present to testify. All of the parties were then before the court on March 29, 2006, to resolve the question of Muhammad's expressed desire to discharge counsel and to represent himself. Dr. Lewis's report was dated March 27, 2006, two days earlier.

A number of factors persuade us that Judge Ryan did not abuse his discretion in going forward and deciding the question of Muhammad's competence to stand trial on that very day. It was on March 24, 2006, that Judge Ryan had received a letter from Muhammad requesting that he be allowed to discharge counsel and to represent himself. Because the massive month-long trial of this case was scheduled to begin within another month, Judge Ryan moved immediately to get the new issue resolved, so that old counsel, new counsel, or Muhammad himself could plan accordingly. He ordered a hearing on it for March 29. Whether defense counsel's subsequent timing was simply a matter of happenstance or whether there was a cause-and-effect relationship at work, counsel filed on March 28 a suggestion of Muhammad's incompetence to stand trial. If incompetent to stand trial, Muhammad would have been thereby incompetent to dismiss counsel. The former would have had a decided influence on the latter.

At that point, counsel had been working with the appellant on the case for seven months. A scheduling order had directed that all pretrial motions be filed by November 7, 2005, and that all experts be designated by November 28, 2005. As part of the responsive flurry, Dr. Lewis filed her evaluative report on March 27.

The most ardent and articulate opponent of the suggestion of incompetence was Muhammad himself. He was insulted by the suggestion. He had received his copy of counsel's suggestion just moments before he entered the courtroom for the hearing. MR. MUHAMMAD: Your Honor, I just received this about maybe 30 seconds before I came out here. Your Honor, it is ludicrous. THE COURT: Okay, listen. We're not in a hurry. If you want to read that, you should. MR. MUHAMMAD: Your Honor, I have read enough of this to let me know that it is ludicrous. (Emphasis supplied).

It was Muhammad himself who first labeled the sudden suggestion of his incompetence as a defense counsel ploy to foreclose his effort to discharge counsel and to represent himself. If he was to be deemed incompetent to stand trial, he would be ipso facto incompetent to discharge his attorneys. MR. MUHAMMAD: Your Honor, this man's argument defeats itself. If he truly, honestly believes what he's saying, Your Honor, this would have been brought up way before I sent you a letter about that I wanted to represent myself, and to inform you of this before the trial started.... So when I decide that no, I'm not going to let that happen the way it happened in Virginia, [defense counsel] came up with this plan to say that Muhammad is incompetent. All of these months, all of a sudden now they want to raise the issue that I'm incompetent because I have sent you a letter that I've expressed to you all what these people have been doing to me. (Emphasis supplied).

Just as Muhammad himself was adamantly opposed to any suggestion that he was incompetent, Judge Ryan had seen nothing to suggest to him that Muhammad's competence was in any way in doubt. The suggestion of incompetence to stand trial was exclusively the idea of defense counsel, over Muhammad's strenuous objection. The State's response to defense counsel's request for a postponed hearing on Muhammad's competence to stand trial was precisely the same as Muhammad's response had been. The assistant state's attorney made this point forcefully to Judge Ryan.

Eight months ago they entered their appearance. They have met with him numerous times during the course of that period. They felt he was competent to choose a trial date. They felt he was competent to waive his rights under the 180 day rule. They felt he was competent to waive his constitutional speedy trial rights. They felt he was competent to waive his rights under the Interstate Agreement on Detainers. Later they filed 10 motions, and felt that he was competent to obviously assist them in the filing of those motions, and they advanced that. We've had numerous hearings where no hint or suggestion of competency has been raised. We've had meetings in your chambers. No hint of competency has been mentioned. The State and defense counsel have met numerous times to talk about the mechanics of this case. No mention of issues, concerns, thoughts about competency. Yet the only mention is made once Mr. Muhammad asserts in his letter that he's seeking to represent himself ... It can't be ignored that that is the context in which this request has been made. (Emphasis supplied).

Defense counsel now argue that the hearing on March 29 was not titled as a hearing on competency to stand trial and that they were, therefore, totally unwarned that the issue would be taken up at that hearing and were totally unprepared to litigate it. There is a surface plausibility to that argument, but it will not withstand close analysis. Counsel knew full well that the stated purpose of the March 29 hearing was to take up and to resolve the issue of Muhammad's request to discharge counsel and to represent himself pro se. They knew full well that a critical factor in deciding whether a defendant may exercise such an option is whether the defendant possesses the competence to do so. They knew full well that the competence to represent oneself is indistinguishable from the competence to stand trial. Anything that counsel may have wished to bring up at some later date, therefore, was already relevant and material to the issue that was scheduled to be resolved on March 29. The complaint about not being warned and not being ready falls on deaf ears. A decision as to one aspect of competence was necessarily a decision as to both.

Dr. Lewis's evaluative report, moreover, was received in evidence on March 29 and was considered by Judge Ryan. Dr. Lewis's report included such observations as, “Mr. Muhammad suffers from brain dysfunction, with evidence of impaired frontal, temporal, and parietal function.” There was no mention, on the other hand, of whether he understood the nature of the criminal proceedings in which he was involved. Judge Ryan was entitled not to be persuaded by Dr. Lewis's report. Maggio v. Fulford, 462 U.S. 111, 115-18, 103 S.Ct. 2261, 76 L.Ed.2d 794 (1983). He was not persuaded.

Highly pertinent to the resolution of this issue, on the other hand, was Judge Ryan's observations of Muhammad in action in a courtroom setting. Judge Ryan's opportunity to observe Muhammad did not begin, moreover, on March 29. On March 6, Judge Ryan had presided over a motions hearing with Muhammad present. At that hearing, Muhammad had noted his disagreement with his counsel's motion to sever and had vigorously argued for technical assistance that he needed to acquire access to the thousands of pages of discovery provided to him by the State. He demonstrated that he knew what was going on and that he could handle himself in a courtroom.

When counsel for Muhammad filed their suggestion of incompetence just before the March 29 hearing, the State filed a response. With that response the State included portions of Muhammad's month-long trial in Virginia. Included were portions of Muhammad's opening statement to the jury during that part of the trial in which he was representing himself. Also included were portions of the transcript showing objections lodged by Muhammad, his cross-examination of a state expert witness, and the Virginia court's voir dire of him regarding his request to represent himself, which was subsequently granted. As part of its examination of that question, the Virginia court asked Muhammad's two defense lawyers if he was competent. Counsel, who had spent months with Muhammad working on the case, replied: “This is one of the only defendants I know who's read every piece of paper in the case. We've given him everything. We've gone over the broad outlines of the case and almost all of the facts. He has a grasp of the parameters of the case.” (Emphasis supplied).

On the narrow issue of the ability to participate in a trial, the observations from Virginia were quite possibly much more directly on point than were the observations of Dr. Lewis. Prepared then to go forward with his own further examination of Muhammad in order to assess personally his competence both to go to trial and to represent himself, Judge Ryan declined to defer the decision until some later date. There was obviously support for what Judge Ryan did. We see no abuse of discretion in that ruling.

B. The Decision As to Competence

Most of the lengthy exchanges between Judge Ryan and Muhammad have already been quoted in our analysis of the first contention. Near the end of their colloquy, Muhammad asserted again his understanding of courtroom procedure. Q Well, do you understand that there is a difference between being crazy and incompetent? A Yes, Your Honor. Q Two different things. A Yes. Q What do you understand the difference to be? A Your Honor, I'm competent in knowing the procedures, in knowing my responsibility as far as defending myself, knowing the responsibility as far as the evidence that needs to be presented, how it needs to be presented, and how to cross or not cross certain evidence, the purpose. I know the reason for the prosecutors, their obligation, their responsibility. (Emphasis supplied).

In Thanos v. State, 330 Md. 77, 86-87, 622 A.2d 727 (1993), the Court of Appeals clearly indicated that a trial judge's observation of a defendant in the courtroom can be critical and dispositive evidence on the issue of competence to stand trial. Our independent review of the record does not indicate that the trial court erred in failing to grant Thanos a competency hearing.... While Thanos did make some peculiar remarks to the trial judge, his words on the whole were very lucid. He appeared to grasp all of his rights as they arose throughout the proceedings ....

Based on the foregoing, we think the record discloses that Thanos met the two-pronged test for competency to stand trial. He exhibited both “present ability to consult with his lawyer with a reasonable degree of rational understanding-and ... a rational as well as factual understanding of the proceedings against him.” All else aside, Thanos's thoughtful contemplation of how his own potentially disruptive presence would affect the deliberations of the fact-finder indicates that he grasped not only the basic elements of the trial process but also its strategic dimensions. The trial court did not err in not conducting, sua sponte, a competency hearing. (Emphasis supplied). See also Johnson v. State, 67 Md.App. at 359-60, 507 A.2d 1134.

Judge Ryan's finding that Muhammad was competent to stand trial was clear. THE COURT: Okay. Well, I certainly don't want to do anything that is clearly wrong or unfair, or rush to judgment. But I don't know Mr. Muhammad very well, but I've talked to him a few times, and the few times I've talked to you, including today, you haven't said anything that wasn't appropriate. [Y]ou understand what we're talking about. You're able to express yourself. You laughed when it was appropriate and you got mad when it was appropriate. And you've convinced me that you do understand the nature of the charges against you. You do understand how serious this is, and you understand that the prosecution has evidence it has compiled to present to the jury in efforts to find you guilty of what they've charged you with.

And I understand and I find that you do have the ability to assist your lawyers. But you haven't, but you haven't. I'm not saying you haven't in any way, but you haven't. .... THE COURT: ... And I'm saying that you appear to me, and I find that you are competent. (Emphasis supplied).

There were facts and circumstances before Judge Ryan, including significantly his own firsthand observations, that amply supported that final decision. It was not, therefore, erroneous. Colbert v. State, 18 Md.App. 632, 642, 308 A.2d 726, cert. denied, 269 Md. 756 (1973). Neither, for that matter, was it an abuse of discretion. By either standard, it clearly passed muster.

C. Defense Counsel's Afterthought

It was on March 29, 2006, that Judge Ryan granted Muhammad's request to discharge counsel and to represent himself. It was on that day, therefore, that the District Public Defender and the Deputy District Public Defender, who had been representing Muhammad, ceased to represent him. On April 24, three private attorneys volunteered to act as standby counsel to assist Muhammad.

On April 27, however, it was the attorneys who had been discharged who wrote a letter to Judge Ryan asking him to make an attached letter from Dr. David Williamson “a part of the permanent record in this case.” Arguably, that letter may have had some bearing on competency in that it may have contradicted a passing comment by Muhammad at the March 29 hearing. Implicitly, the purpose of the letter would seem to have been to encourage a reconsideration by Judge Ryan of his earlier competency ruling, although no such motion had been filed. Indeed, the defense now agues that Dr. Williamson's “letter surely raised enough questions about Mr. Muhammad's competency to require the court to exercise its discretion to reconsider its prior competency decision.” At that point, of course, it was only Muhammad himself who could have moved to have Judge Ryan reconsider his earlier decision. Former counsel had no standing to do so.

The State moved to strike the filing. Muhammad, who was then representing himself, also stated unequivocally that the proposed filing should not be allowed in the record. Judge Ryan granted the State's motion. The defense now claims that that was an abuse of discretion. We do not agree. Counsel who no longer represented Muhammad had no standing to do anything on his behalf, however their action may be titled or characterized. A fortiori, discharged counsel have no standing to do something over Muhammad's objection at a time when he was representing himself.

Fully dispositive of this issue is Thanos v. State, 332 Md. 511, 518, 632 A.2d 768 (1993). The public defender, who had earlier represented Thanos, sought to file a petition for certiorari review with the Supreme Court over Thanos's objection. Thanos had been convicted of first-degree murder and had been sentenced to death. The public defender also sought to appeal to the Court of Appeals the granting by the trial judge of Thanos's motion to discharge counsel. The State moved to dismiss the appeal on the ground that former counsel no longer had any legal authority to act on Thanos's behalf. The Court of Appeals agreed and dismissed the appeal. Judge McAuliffe's opinion explained:

The instant appeal was filed in Thanos's name by the Office of the Public Defender (Public Defender). The appeal questions the competency finding, the propriety of having that decision made by the same trial judge who originally sentenced the defendant, and the propriety of obtaining any waiver prior to the expiration of the 240-day automatic stay. In response, the State has moved to dismiss the appeal based on lack of standing. The State asserts that because the Public Defender no longer represents the defendant, it has no standing to bring the appeal.

The questions of competency and standing are interrelated. If the trial court correctly determined that the defendant was competent to discharge the Public Defender and had knowingly and voluntarily done so, the Public Defender would have no standing to bring this appeal. 332 Md. at 518, 632 A.2d 768 (emphasis supplied).

The holding of the Court of Appeals was unequivocal. We hold, therefore, that the trial judge did not err in his conduct of the hearing, or in finding that the defendant was competent to discharge the Public Defender as his attorney, and that the defendant did so knowingly, voluntarily, and intelligently. It follows that the Public Defender did not represent the defendant when he noted this appeal, and was without standing to do so. The defendant having discharged his attorney and having determined that no further appeal should be taken, the appeal must be dismissed. Id. at 520, 632 A.2d 768 (emphasis supplied).

“The Proof of the Pudding ...”

If ever an alternative holding of harmless error would be appropriate if necessary, it is here. What Judge Ryan was called upon to do on March 29, 2006, was to make a prediction, based on the record before him, as to whether Muhammad, a month hence, would be competent to stand trial. Whether that prediction was arrived at by proper or improper procedure no longer really matters. The event as to which the prediction was made has now occurred, and we know the result. The prediction itself, let alone how we arrived at the prediction, is now beside the point.

Once the game is over, the significance of the pre-game forecast is, at the very least, almost totally marginalized. The prediction in this case turned out to be correct. Muhammad's actual performance fully vindicated Judge Ryan's prediction. In a month-long trial involving well over a hundred witnesses and spread over thousands upon thousands of pages of transcript, Muhammad demonstrated, in real time, that he was both competent to stand trial and competent to represent himself pro se. He knew the facts. He knew the law. He was alertly on top of the testimony of every witness. He lodged cogent and articulate objections and argued them forcefully. For a legally untrained pro se performance, he turned in a truly remarkable performance.

How more definitively can it be proved that one is competent to perform than by having him actually perform? It is as if the entire month-long trial had been a dress rehearsal or an exhibition game, carefully staged as a mock trial to see if Muhammad actually could do what some claimed he could do and others suggested he could not do. In the last analysis, he did it.

Even if, purely arguendo, the prediction that Muhammad was competent to stand trial had been somehow procedurally flawed, the assumed error self-evidently turned out to be harmless. Judge Ryan's prediction of competence turned out to be true, so no harm was done. Once Muhammad has demonstrated that he was, indeed, competent to stand trial by actually standing trial, should there be another month-long trial so that he can demonstrate his competence all over again for a second time? Of course not!

At the end of the trial, Muhammad delivered a closing argument to the jury that lasted for over three hours. He demonstrated a total mastery of the multitudinous facts in the case. His discussions of 1) the burden of proof and reasonable doubt and 2) the role of a juror as a fact finder were right on point. Muhammad's argument about the ambiguity of ballistics comparisons, enhanced by his use of slides, was adroitly handled. He attacked DNA identification, particularly when the result is that the subject “cannot be ruled out” as the donor. His argument about the absence of any traces of gunpowder in the Chevrolet Caprice was articulately presented. For a legally untrained pro se performance, he gave a remarkable performance. By his performance, he demonstrated that any suggestion that he were not competent to stand trial was, as he himself characterized it when the subject first arose, “ludicrous.”

Technically, this is not a garden variety harmless error scenario. Normally, in measuring harmless error, we are called upon to decide whether an evidentiary error or some other trial error may have had a critical impact on the fact finder's ultimate verdict. In this case, by contrast, we may actually be considering the question of whether any prejudice ultimately resulted from the hypothesized procedural flaw and whether, therefore, such a flaw could even be deemed error in the first instance. The absence of prejudice, on the one hand, and the harmlessness of error, on the other hand, are closely related phenomena, but for the very different allocations of the burden of proof. With the one, the defendant must show prejudice to establish error; with the other, the State must show that the actual error was harmless.

It is unnecessary in this case to decide which of those two phenomena we are actually dealing with, because either one produces the same result. A defendant who was incompetent to stand trial was not erroneously required to do so. That is the harm that the competency law is designed to avoid. That harm did not occur in this case.

Contention III:Excluding Testimony

Muhammad's third contention breaks down into five distinct, albeit similar, subcontentions. Four of the subcontentions charge that Judge Ryan erroneously refused to permit the defense to call particular defense witnesses-1) Deputy Sheriff C. Wade of the Montgomery County Sheriff's Department; 2) Detective June Boyle from Virginia; 3) Clyde Wilson, a civilian from Montgomery, Alabama; and 4) J. Wyndal Gordon, Esq., one of Muhammad's standby counsel. The fifth subcontention is a collective one, claiming that Judge Ryan erroneously refused to issue the certifications necessary for Muhammad to obtain subpoenas for the appearance at his trial of a large number of out-of-state witnesses. In varying degrees, each of these subcontentions founders on the shoals of immateriality.

Before taking them up, one by one, it is appropriate to set out the controlling legal guidelines. This trial went on for four and a half weeks, and the jury heard from 133 witnesses. As his own pro se representative, Muhammad demonstrated a desire to call a multitude of witnesses who had little or no relevant testimony to offer. In an attempt to exercise some discretionary control over a sprawling proceeding, Judge Ryan insisted on proffers of materiality rather than giving Muhammad carte blanche to wander aimlessly down meaningless tangents. Although the right to present witnesses in one's defense in a fundamental right guaranteed by the Sixth Amendment, the Court of Appeals pointed out in Wilson v. State, 345 Md. 437, 448, 693 A.2d 344 (1997), that the right, “though fundamental, is not absolute.” To establish a violation of the right, a defendant must show that the testimony in issue “would be both admissible and helpful to the defense.” Id.

In Wilson, 345 Md. at 448, 693 A.2d 344, the Court of Appeals quoted with approval from the decision of the Supreme Court in Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988): “[T]he accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence. The Compulsory Process Clause provides him with an effective weapon, but it is a weapon that cannot be used irresponsibly.”

In United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982), the Supreme Court stressed that a defendant “must at least make some plausible showing of how [the witness's] testimony would have been both material and favorable to his defense.” The Supreme Court in Taylor v. Illinois further admonished: The trial process would be a shambles if either party had an absolute right to control the time and content of his witnesses' testimony.... The State's interest in the orderly conduct of a criminal trial is sufficient to justify the imposition and enforcement of firm, though not always inflexible, rules relating to the identification and presentation of evidence. 484 U.S. at 411, 108 S.Ct. 646.

To insure that a trial does not stray into distracting and confusing by-ways, broad discretion is entrusted to the trial judge to control the flow of the trial and the reception of evidence. Maryland Rule 5-104(a) and 5-403. See also Kelly v. State, 392 Md. 511, 530, 534, 898 A.2d 419 (2006); Merzbacher v. State, 346 Md. 391, 404, 697 A.2d 432 (1997); Marshall v. State, 174 Md.App. 572, 581, 923 A.2d 143 (2007).

In Smith v. State, 371 Md. 496, 504, 810 A.2d 449 (2002), the Court of Appeals emphasized that the right to present a defense, albeit fundamental, is nonetheless subject “to two paramount rules of evidence, embodied both in case law and in Maryland Rules 5-402 and 5-403. The first is that evidence that is not relevant to a material issue is inadmissible. The second is that, even if relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” (Emphasis supplied). See also Ebb v. State, 341 Md. 578, 588, 671 A.2d 974 (1996) (Trial court should not permit questioning to stray into collateral matters which would obscure trial issues and lead to fact finder's confusion).

In reviewing a judge's exercise of control over the receipt of evidence based on, inter alia, its materiality, the standard to be applied is the abuse of discretion standard. As the Court of Appeals explained in Cooley v. State, 385 Md. 165, 175-76, 867 A.2d 1065 (2005): “ ‘Abuse occurs when a trial judge exercises discretion in an arbitrary or capricious manner or when he or she acts beyond the letter or reason of the law.... The conduct of the trial must of necessity rest largely in the control and discretion of the presiding judge and an appellate court should in no case interfere with that judgment unless there has been an abuse of discretion by the trial judge of a character likely to have injured the complaining party.’ ” (Emphasis supplied). See also Kelly v. State, 392 Md. at 531-32, 898 A.2d 419; Fontaine v. State, 134 Md.App. 275, 288, 759 A.2d 1136, cert. denied, 362 Md. 188, 763 A.2d 734 (2000).

A. Certification of Out-of-State Subpoenas

We turn first to the collective subcontention. Although the subcontention, as we shall explain, has not been presented in a way that calls for appellate review, a brief explanation of its background will provide a helpful context for viewing in realistic perspective this entire package of subcontentions. The process for obtaining the attendance of out-of-state witnesses is spelled out in Maryland Code, Courts and Judicial Proceedings Article, § 9-303(a), the Maryland Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings. That section provides: (a) Certificate that witness is needed in this State.-If a person in any state, which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions, or grand jury investigations commenced or about to commence, in this State, is a material witness in a prosecution pending in a court of record in this State, or in a grand jury investigation which has commenced or is about to commence, a judge of the court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required. A certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this State to assure his attendance in this State, unless the witness shall be admitted to bail by the appropriate authority, upon condition that the witness will appear at the time and place specified in the subpoena or summons served upon him. This certificate shall be presented to a judge of a court of record in the county in which the witness is found. (Emphasis supplied).

On March 29, 2006, the day that Muhammad first represented himself pro se, the subject of his obtaining the attendance of out-of-state witnesses first arose. Judge Ryan announced that he would conduct a hearing two days later, on March 31, at which time Muhammad could present his list of proposed witnesses. Muhammad agreed to do so. On March 31, however, Muhammad appeared without his list. Muhammad explained that he had mailed the list. Judge Ryan had not received it. Muhammad added that “it wasn't all of them but it was a good amount.” Judge Ryan cautioned Muhammad that obtaining out-of-state witnesses was “not a simple process of sending a letter.”

The next hearing to take up the subject convened on April 6. Judge Ryan still had not received the list that Muhammad claimed to have mailed. Muhammad handed Judge Ryan a list of names that he had “come up with thus far.” It included both in-state and out-of-state witnesses. Muhammad's April 6 list consisted of 545 proposed defense witnesses. There was a handwritten list of 178 names plus a typed list of 367 names that was a photocopy of a State list of its potential witnesses. There was no indication of what any of the proposed witnesses could testify about. On April 7, the State moved for a stay of service and a hearing so that Judge Ryan could hear argument on the materiality and competence of Muhammad's hundreds of proposed witnesses.

The next day that the court was available for a hearing was April 24. Prior to that hearing, the State had on April 20 filed its response to Muhammad's request for witness subpoenas. It asserted that many of Muhammad's 545 proposed witnesses could not provide competent, material, or relevant testimony. It pointed out that many of Muhammad's requests were incomplete and that Muhammad had failed to satisfy the basic requirement of Maryland Rule 4-265, governing in-state subpoenas. The State argued that the right to compulsory service is not an absolute and that Muhammad's “hugely over-broad request” amounted to an abuse of process. The State moved that Muhammad should be required to cure any defects with respect to his out-of-state witnesses by May 1 and that, upon his completion of the appropriate paper work to comply with § 9-303, the court should hold a hearing to determine the relevancy and materiality of what those witnesses could say.

On April 24, Judge Ryan appointed three standby counsel to assist Muhammad. When Muhammad asked for “subpoena forms” for out-of-state witnesses, Judge Ryan explained that there were no such forms but advised him that standby counsel could help him to satisfy the § 9-303 requirements. Judge Ryan, in the meantime, had ordered that subpoenas be issued for all of Muhammad's requested in-state witnesses for whom he had provided the necessary names and addresses. At the hearing on April 24, Judge Ryan asked Muhammad how the likely testimony of certain out-of-state witnesses would be relevant or material. Muhammad repeatedly asserted that he was not required to do so.

On April 28, Muhammad was back before Judge Ryan with his witness problems. He informed Judge Ryan that he had gone over the matter with his standby counsel and was “in the process” of trying to obtain the necessary addresses and other necessary information about his desired witnesses. With every passing hearing there were a lot of words and promises about what was being done or would soon be done but no final action permitting compliance with § 9-303. On April 28, Judge Ryan warned Muhammad:

I'm not going to let you just dragnet 500 or 600 names and tell them to hold off, don't come, we'll let you know if we need you. That's not how this is done. Whoever you subpoena as a witness has to be someone who is competent, has personal knowledge of some facts alleged in your case, and that whatever they know is relevant to the issues in your case. Otherwise they cannot be witnesses.

And I tried to explain that to you the other day. I told you I'd work with you, but you have to make some representations to me who these people are and what they know about the facts in your case, what do they know about this case. And if you can't tell me what they, what they know, or the purpose for which you're calling them, what you expect their testimony to be, I'm not, I'm not going to let you summons them. (Emphasis supplied).

Muhammad stated that he understood. He explained that he was “trying to get them in.” Judge Ryan agreed with the State that a final list of witnesses would be needed for the voir dire examination of the prospective jurors that was scheduled to begin on May 1. Judge Ryan agreed to address and to finalize this problem about witnesses the “first thing” on May 1. He again cautioned Muhammad, “It can't be 500 or 600 names.”

On May 1 Muhammad still had not given the court what it needed. Before the voir dire process began, Muhammad handed Judge Ryan a list of the witnesses he wanted subpoenaed. The State pointed out that the requests for out-of-state witnesses were still not in compliance with § 9-303. Muhammad admitted that he had not yet talked to his standby counsel so that they could help him with this process. The State reminded the court that a final list of witnesses was needed for the voir dire process. Judge Ryan finally expressed his exasperation: Out-of-state witness, it's too late. It's too late. You're not going to be able to subpoena out-of-state witnesses. You haven't complied with the rules of the court.

Judge Ryan again tried to explain: THE COURT: And you don't have ready for submission the necessary papers to, to have our Clerk's Office send them to the various states to begin the process. MR. MUHAMMAD: I understand. THE COURT: You haven't done that yet.

When Muhammad then complained that he had been unaware that there was any deadline, Judge Ryan relented. He stated: If you can overnight, if you can figure out some way to do it, I'm not saying, “No,” but I'm not saying, “Yes,” either. On the next morning, May 2, Muhammad filed a Motion to Issue Out-of-State Subpoenas, listing 51 witnesses. The matter was taken up again on the afternoon of May 3. The State argued that the Motion of May 2 was “very late,” that there had been many missed deadlines and delays, and that Muhammad and standby counsel had had all weekend to get their list of witnesses in order but had failed to provide the list in time for the voir dire of May 1. More significantly, the State pointed out that the list of May 2 still failed to comply with § 9-303, because “there's no certification that anyone here is a material witness.” It stated that this was more than a procedural technicality in that among the witnesses listed were the Commonwealth Attorney for Fairfax County, Virginia, and his deputy and a person in Illinois who had “made a prank call to a radio station regarding the sniper incidents.” Materiality was the overriding concern. Judge Ryan expressly told Muhammad yet again that in order for the court to certify that the witnesses were material, Muhammad would need to file an affidavit or state under oath in the courtroom “what it is precisely that this person has to offer in this case.”

Muhammad offered to be put under oath to swear that the witnesses were “vital to his case.” Judge Ryan explained to Muhammad that he had not completed the necessary paperwork so that Judge Ryan could make the necessary assessment of materiality. Judge Ryan then ruled.

And the more we're talking about it and the more we're thinking about it, Mr. Muhammad, I've been working with you on this and we keep talking about it. And I've tried to do what I could to help you get all this started, and I just have to make a decision. And here's what I'm going to do. I'm going to decide that it is too late and I'm not going to authorize the issuance of any process to have subpoenaed out-of-state witnesses. I've made a decision on that. I know your opposition to it and I've heard your opposition, but I have to make a decision. We just can't keep talking about it. And that's it. (Emphasis supplied).

That, however, was not it. On May 11, Muhammad filed a Motion for Reconsideration of Request for Certification of Out-of-State Witnesses. The proposed order that he attached to the motion further provided that “the State appropriate the necessary funds to ease the burden of having Defendant's Witnesses travel to Rockville, Maryland” and that “this matter (presumably the trial) be postponed or continued in order to serve process on the Out-of-State Witnesses so that they may appear and testify favorably on the Defendant's behalf.” FN5 Muhammad handed Judge Ryan “a large stack of papers” and announced, “We'll start with the D.C. witnesses.” Judge Ryan stopped him and again explained that he had repeatedly asked Muhammad to proffer the testimony of the out-of-state witnesses he wanted subpoenaed, but that Muhammad had failed to comply with that requirement. In denying the Motion to Reconsider, Judge Ryan stated:

FN5. Appended to the Motion for Reconsideration was a pared down list of 42 out-of-state witnesses. Some clue as to probable immateriality may be gleaned from the fact that two of them were from Georgia, two from Illinois, one from Iowa, and four from Louisiana. Thus far, there is no suggestion as to what any of those people may have had to contribute to the trial.

THE COURT: ... I have asked you several times to represent, to articulate to me, the specific nature of the testimony of the people you want subpoenaed to come here. And you have consistently told me, you told me basically, you told me you feel your defense, and you're reluctant to do that. Before I were to authorize a subpoena to be sent to any other state, I have to be satisfied with it. That whoever that person is, and wherever that person is, before I can command that-I mean, I can't command. I don't have jurisdiction over them. I've got to send it to another jurisdiction. And I have to certify to that other jurisdiction that I'm satisfied that this person is a material witness in this case. And I'm not, Mr. Muhammad, I'm going to tell you again, sir. I've reconsidered your motion, and I'm again denying it. These out-of-state subpoenas will not be issued for all the reasons I've already said. (Emphasis supplied).

On the merits, we would have no difficulty in affirming the decision of Judge Ryan not to initiate the formal process for obtaining witnesses from out of state. Section 9-303 would have required Judge Ryan, as a Maryland judge, to certify to a judge in another state that he was satisfied that a particular witness actually had material information about the issues on trial in Maryland. The request would then have asked that out-of-state judge to issue formal process against the prospective witness, compelling his attendance at the Maryland trial. Muhammad never furnished Judge Ryan with the necessary proffer of what any of the witnesses could have testified to in order to satisfy Judge Ryan that the witnesses were, indeed, material. Judge Ryan did not abuse his discretion.

In this case and on this issue, however, Muhammad has not even cleared the necessary preliminary hurdle to reach those merits. Even as of this late date, Muhammad has not proffered to us on this appeal what his out-of-state witnesses would likely have testified about. A claim that the exclusion of evidence constitutes reversible error is generally not preserved for appellate review absent a formal proffer of the contents and materiality of the excluded testimony. Maryland Rule 5-103(a)(2); Merzbacher v. State, 346 Md. 391, 416, 697 A.2d 432 (1997) (objection to exclusion of evidence unpreserved where appellate court is in no position to discern what the evidence may have been); Ratchford v. State, 141 Md.App. 354, 368, 785 A.2d 826 (2001), cert. denied, 368 Md. 241, 792 A.2d 1178 (2002) (failure to proffer contents of excluded testimony is “absolutely foreclosing” as to claims). This impediment to appellate review effectively moots any consideration, as an alternate holding, of harmless error. Even if, arguendo, certification for the out-of-state witnesses had been erroneously denied, we have no idea whether such a hypothesized error would have been harmful or harmless because we have no idea what the excluded testimony might have been.

B. Deputy Sheriff Wade

On May 3, just before the selection of the jury had been completed, the State moved to have the name of Deputy Wade of the Montgomery County Sheriff's Department struck from Muhammad's witness list. It explained that Deputy Wade's only contact with the case was that he had transported Muhammad to the court house and that he was “not a relevant witness.” Judge Ryan sought to learn from Muhammad whether Deputy Wade was, indeed, a material witness. THE COURT: ... Mr. Muhammad ... would you please tell me what relevant testimony Sheriff Wade has to this case? Why are you subpoenaing him as a witness in this case? MR. MUHAMMAD: Your Honor, to my knowledge, Sheriff Wade was part of the investigation of a shooting that had happened during this time. As a matter of fact, him and two other officers at the time. THE COURT: Which shooting? Do you know? MR. MUHAMMAD: Not at this moment, Your Honor. THE COURT: Well- MR. MUHAMMAD: Your Honor, it's a shooting that happened around about the same time as these sniper events. I mean, I can give you that information. But to ask me even more than that and I have to disclose more would constitute going into my case. (Emphasis supplied). Muhammad stated that Deputy Wade had investigated an incident which, at the time, was not known to be unrelated to “the sniper case.” MR. MUHAMMAD: Your Honor, during the time of the shootings he was in an incident that they considered to be a part of the sniper investigation, and they investigated it. The State offered a clarification of what Muhammad was talking about. [THE PROSECUTOR:] I would hazard a guess. Between October 2nd and October 24th in the jurisdictions where the sniper shootings occurred, Montgomery, Prince George's, D.C., Spotsylvania County, Hanover County, Fairfax, that there were probably 200-plus shootings totally unrelated to the sniper shootings. And we can be here until next year if we wanted to hear from every officer who investigated all of those cases. My understanding is that Sheriff Wade responded to a gunshot that was reported, the sound of a gunshot. There was no victim, and it was never connected or related to the sniper shootings. (Emphasis supplied).

Judge Ryan ruled: THE COURT: Mr. Muhammad, I'm determining that Sheriff Wade has no relevant evidence to the trial that we're about to begin. And I'm not going to permit him to be a witness in this case. (Emphasis supplied). Although it appears that Muhammad was on a “fishing expedition,” he himself was in a position to allay such fears by proffering, as he was requested to do, what material testimony Deputy Wade might have given. On the merits, we would hold that Judge Ryan's ruling was not an abuse of discretion because no proffer had been given to him. We cannot reach those merits, however, because, even as of this late date, no proffer has been given to us.

C. Detective June Boyle

Detective June Boyle is a Virginia law enforcement officer. Shortly after the arrest of Muhammad and Malvo on October 24, 2002, she had a lengthy interview with Malvo. Pursuant to an arrangement he worked out with Muhammad, Malvo agreed that, if he were to be interrogated in Virginia, he would say that he, rather than Muhammad, had been the triggerman in all of the shootings. This arrangement was to save Muhammad from the risk of the death penalty because Virginia is a capital punishment state. Malvo, as a juvenile, did not run the risk.

When Detective Boyle informed Malvo that he was in Virginia, Malvo confessed to having been the triggerman in all the shootings. He has since repudiated that statement. At trial, he acknowledged that he had earlier made that statement and he explained his reason for having done so.

On May 25, the State moved to quash the subpoena that the defense had had served on Detective Boyle the day before in order to prevent the defense from calling her as a witness. The State advanced three grounds for its request: 1) Detective Boyle had no material testimony to give; 2) she had, prior to being served, been present in the courtroom notwithstanding the sequestration order; and 3) her name had not been read to the prospective jurors during voir dire.

When Judge Ryan asked Muhammad “for what purpose would you be calling her?” one of his shifting responses was that “It's been stated by the State that Lee Boyd Malvo made false statements in his statement with June Boyle.” She would not, however, have been permitted to impeach Malvo's testimonial credibility by showing that he had made a prior inconsistent statement about which of the two snipers had been the actual triggerman. Malvo, in his testimony, had already acknowledged his false statement to Detective Boyle in that regard and had explained his reasons for that earlier falsity. Judge Ryan explained that Detective Boyle would not be permitted to testify for that purpose. THE COURT: ... [W]hen Mr. Malvo testified he testified that he had lied and had given false information to her. So if you were to call her to ask her if he did give her false information or what information he gave her that was false it wouldn't be permissible.

There were then intimations that Muhammad wanted to bring out the fact that Detective Boyle had believed Malvo's earlier account of who the triggerman had been, arguably suggesting that that version was more credible than Malvo's trial testimony. Judge Ryan explained that a witness cannot be put on the stand to state that he or she believes or disbelieves the testimony of another witness. MR. MUHAMMAD: Your Honor, her impression of what he was telling her at that particular time, what he allegedly was telling her she believed it to be true.... THE COURT: Mr. Muhammad, what she believed or what her impression of it is is not relevant. (Emphasis supplied).

What Muhammad really wanted to suggest from the testimony of Detective Boyle, however, was that Malvo had never told her anything and that the whole purpose and effect of her examination of Malvo was to instruct him as to all of the details of a string of crimes that he otherwise knew nothing about. Judge Ryan pointed out that during Muhammad's lengthy cross-examination of Malvo a day earlier, Muhammad had never inquired into this alternative source of Malvo's extensive information. Muhammad acknowledged that that was so. THE COURT: Mr. Malvo was on that witness stand for quite some time. And I don't recall you asking him that question. MR. MUHAMMAD: Say again? THE COURT: I don't recall [your] asking him the statements he made to Ms. Boyle were his statements or did she tell him what to say. You didn't ask him that, did you? MR. MUHAMMAD: No, no, Your Honor, not, not to my knowledge because it was not my intention to ask him that. It was my intention to ask June Boyle. THE COURT: Okay, well, then you can't ask her that question. I'm not going to permit you to do that. (Emphasis supplied).

The State protested that Muhammad lacked any good faith reason to expect that Detective Boyle would testify to such an effect. Judge Ryan made one final effort to get some kind of a general proffer out of Muhammad, but the effort was to no avail. The whole exercise appeared to be a pointless “fishing expedition.” MR. MUHAMMAD: Your Honor, I can't sit up here and tell you every single thing that I'm going to ask June Boyle on that stand because I don't know what June Boyle is going to say specifically on that stand, okay. THE COURT: Okay, you don't have to tell me every question you intend to ask her. But you have told me the areas you intend to ask her about. And I'm determining that those areas are not relevant to the evidence as it's being presented and I'm not going to permit you to call her for the reasons you've stated. (Emphasis supplied).

If the merits of this contention were properly before us, we would hold that Judge Ryan was, with that ruling, operating within his proper discretionary range for any of three reasons. To have put Detective Boyle on the stand would have been a violation of the sequestration order. In Redditt v. State, 337 Md. 621, 629, 655 A.2d 390 (1995), Judge Rodowsky stressed the discretionary nature of the judge's decision.

When there has been a violation of a sequestration order, whether there is to be a sanction and, if so, what sanction to impose, are decisions left to the sound discretion of the trial judge. (Emphasis supplied). See also Brown v. State, 272 Md. 450, 477-78, 325 A.2d 557 (1974); Cunningham v. State, 247 Md. 404, 417, 231 A.2d 501 (1967); Mayson v. State, 238 Md. 283, 290, 208 A.2d 599 (1965); Hill v. State, 134 Md.App. 327, 349, 759 A.2d 1164 (2000).

Quite independently, Detective Boyle's name had not been read to the jurors upon voir dire. As Judge Sonner pointed out in Burral v. State, 118 Md.App. 288, 300-01, 702 A.2d 781 (1997), the trial judge has the discretion in such a case to preclude the witness from testifying. Most significantly, Muhammad never satisfied Judge Ryan that he had any realistic expectation that Detective Boyle had any material evidence to offer. For any of these three reasons, and certainly for all of them combined, we would not be able to find that Judge Ryan abused his discretion.

At the threshold, however, the issue is not properly before us because Muhammad has made no proffer to us of what Detective Boyle's testimony would have been. Merzbacher v. State, 346 Md. at 416, 697 A.2d 432; Ratchford v. State, 141 Md.App. at 368, 785 A.2d 826.

Even if, purely arguendo, Judge Ryan's decision not to permit Detective Boyle to be called as a witness were in error, we would in this case be persuaded beyond all reasonable doubt that such an error was harmless.

D. Clyde Wilson

On May 26, Muhammad, as his case was ending, indicated that he was about to call as a witness, as soon as he arrived in the court house, Clyde Wilson. Muhammad proffered that Wilson would have testified with respect to the September 21, 2002 shooting in Montgomery, Alabama. Wilson was apparently a civilian witness to that shooting. Muhammad proffered to Judge Ryan what Wilson's testimony would be. Wilson saw a young man running from the scene of the Montgomery shooting being chased by a police officer. Wilson joined in the chase, but the culprit got away. In giving a description of the fleeing suspect, Wilson apparently described him as “not an Afro-American.”

The State objected to Wilson's being called as a witness on the ground that his name had not been given to the jurors on voir dire and that his being called as a witness came as a total surprise to the State. The Assistant State's Attorney stated to the court. MS. WINFREE: His name, I've got the transcript. His name was not read to the jury. Mr. Muhammad has had numerous opportunities to cure these problems. You gave him opportunities way in advance of the trial. This was the kind of problem that we wanted to make sure we didn't have. And that is why you set the deadlines. He has completely failed to comply with those deadlines. It's a day late, it's a dollar short, we are ready to close. He should not be permitted to bring this witness in at this 11th hour this way. It's actually past the 11th hour and we strenuously object to this witness being called to testify. (Emphasis supplied).

Judge Ryan ruled: I'm not going to permit that witness to testify for all the reasons I've put onto the record. So that's it. When shortly thereafter standby counsel raised the subject again, Judge Ryan reaffirmed: Mr. Muhammad, I'm not going to permit this witness to testify if it creates the position the State is in that prejudices their opportunity to either cross-examine him or rebut his testimony because he's a new name injected this morning into this trial.

On the merits, we hold that Judge Ryan did not abuse his discretion. Dispositive is the decision of this Court in Burral v. State, supra. Judge Sonner's statement of the law was clear. The court may also exclude witnesses whom the defense or the prosecution have failed to disclose for purposes of voir dire. 118 Md.App. at 300, 702 A.2d 781.

In Burral, we built upon the earlier Court of Appeals decision in Taliaferro v. State, 295 Md. 376, 388-89, 456 A.2d 29 (1983). We described, 118 Md.App. at 300, 702 A.2d 781, the Taliaferro holding. In Taliaferro, the Court held that it was not an abuse of discretion or a denial of due process to prevent defendant's alibi witness from testifying, where the defendant did not disclose the witness until the close of the State's case, and the proffered witness would have been the defendant's only witness. This Court then held that the Taliaferro rationale extended to witnesses generally and not just to alibi witnesses.

We hold that the rationale expressed in Taliaferro, namely that a trial judge may exclude non-disclosed alibi witnesses, can be extended to cover the exclusion of other witnesses whom the defense unjustifiably fails to disclose. Id. at 301, 702 A.2d 781. Muhammad's response, in his reply brief, is to tell us that “ Burral was wrongly decided.” We do not agree.

Even if, arguendo, our holding in this regard were in error, we would still be persuaded beyond a reasonable doubt that such error was harmless. Even if we were confining our harmless error analysis to the Montgomery, Alabama shooting alone (we are not so confining it), the presumed error would have been harmless. Even granting that one of the witnesses to that crime described the fleeing suspect as “not an Afro-American,” Lt. Graboys described the suspect as an Afro-American and identified him as Lee Malvo. At that point, either one of the two witnesses could easily have been mistaken.

Lee Malvo himself, however, took the stand and acknowledged that he was the suspect in question. The phone call to Father Sullivan in Ashland, Virginia, further confirmed that fact. The “Armor Light” gun catalog dropped by the suspect at the scene, moreover, had Malvo's fingerprints on it. The ballistics examination furthermore showed that the bullet that killed Claudine Parker had been fired from Muhammad's Bushmaster rifle. Wilson's testimony would not have dented the establishment of the Montgomery, Alabama shooting itself in the slightest respect.

A fortiori, it would not have dented the six convictions for the murders in Montgomery County, Maryland. Wilson's supposed testimony did not touch those crimes in any way. The entire Montgomery, Alabama, episode was simply one of many “other crimes” to help confirm the identification of Muhammad and Malvo as the Montgomery County, Maryland killers. That identification of Muhammad and Malvo as the killers was proved in so many ways that the casting of the slightest shadow on one of the “other crimes” was self-evidently inconsequential in the extreme.

E.J. Wyndal Gordon, Esq.

Another witness whom Muhammad was not permitted to call was one of his standby counsel, J. Wyndal Gordon, Esq. Mr. Gordon had no information to offer on the crimes for which Muhammad was being tried or even, for that matter, on any of the “other crimes.” His function would have been exclusively to impeach the testimonial credibility of a witness by showing a prior inconsistent statement on the part of that witness pursuant to Maryland Rule 5-613(b).

When Judge Ryan ruled that Muhammad could not call Mr. Gordon as a witness, it was clearly based on his concern to keep an already long protracted trial moving toward resolution and not to allow the case to get “sidetracked” by an issue that was of little consequence. MR. MUHAMMAD: Your Honor, may I have permission to call Wyndal, my other attorney tomorrow? THE COURT: This gentleman? Mr. Gordon, you want to call him as a witness? MR. MUHAMMAD: As a witness. THE COURT: No, sir. We're still trying this case. We're trying this case. We're not getting sidetracked by something else now. I've dealt with that now and we're going forward with this trial. (Emphasis supplied). Such a ruling would have been pursuant to Maryland Rule 5-403, which provides: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. (Emphasis supplied).

We would not be inclined to find that Judge Ryan abused his discretion in making a policy judgment to “keep the trial moving” and not to let the jury be confused by a tangential issue of little consequence. It is not necessary for us to make such a decision, however, because it behooves us to proceed immediately to the question of harmless error.

The witness whom the prior inconsistent statement would have impeached was not a State's witness, but a defense witness. As his second witness, Muhammad called Maria Rodriguez who, on October 22, 2002, lived near the place where Conrad Johnson was shot and killed. Ms. Rodriguez was from El Salvador, had been in the United States for seven years, and had some difficulty with the English language. Ms. Rodriguez's attention was directed to the morning of October 22, and she was asked if something directed her attention to her window. She replied:

A I heard a gun shot. I heard this gun shot and I, well I was across from this park where the gun shot was heard. Okay. And so I approached the window and I saw a man jump over the bench from the park toward the apartments. Q Was that it? Okay. A Yes. And that was when the police arrived and they asked me what I had seen and I said, well, I saw him. They asked me how he was and I said he, and so I was asked what he was like and I said, well he was a tall man. He had on an overcoat and it was dark. I could see. It was black. And they said what was he like. I said that he was a man of color. And that was that. (Emphasis supplied).

Muhammad sought to clarify what she meant by “a man of color.” BY MR. MUHAMMAD: Q Ma'am, was the man that you saw African American? A Yes. (Emphasis supplied).

It was that description of the man Ms. Rodriguez saw running as “Afro-American” that Mr. Gordon was prepared to impeach. It was a description that surprised the defense. It was expecting Ms. Rodriguez to say that the man was not Afro-American. Mr. Gordon had driven Ms. Rodriguez to the court house that morning. Ms. Rodriguez had allegedly told Mr. Gordon unambiguously that the man she saw running was not black.

Assuming that it was not “trumped” by Rule 5-403, Muhammad would have been permitted to impeach Ms. Rodriguez by offering, through Mr. Gordon, extrinsic evidence of her earlier inconsistent statement. Maryland Rule 5-613(b). Muhammad was unexpectedly surprised by her answer and was, again barring Rule 5-403, entitled to negate it. One of the purposes of such impeachment is to explain to the jury what his reason had been for calling a witness who was not helpful to him in the first place.

The statement that Ms. Rodriguez gave to Mr. Gordon, however, was not admissible as substantive evidence. Muhammad's argument that it is admissible as substantive evidence pursuant to Rule 5-802.1(c) as a statement of identification is without merit. A general description of a person observed by a witness is not an “identification” within the contemplation of Rule 5-802.1(c). That subsection deals with the pinpointing of a particular individual, such as picking someone out of a line-up or a photographic array. A description of a person is not an identification, as that term of art is used.

The function of the impeachment, had it been allowed, would have been to negate Ms. Rodriguez's description of the running man as Afro-American. It would not substantively have established the converse, that he was not Afro-American. The net effect would have been that she saw a tall man running and that she said nothing further about whether he was or was not Afro-American. Even, therefore, if there had been a permitted impeachment of Ms. Rodriguez, it would have affected nothing. It would have had no impact at all on the State's case. It would simply have meant that the defense had called an insignificant witness who ended up neither helping nor hurting its case. That's about as inconsequential as it gets.

The Subcontentions Collectively

Isolated in the vacuum of a single subcontention, an abstract legal principle may appear to be an indispensable part of a defendant's basic constitutional right to present a defense. Viewed, however, in the totality of all of the subcontentions collectively, let alone in the totality of the entire trial, that abstract principle may appear in a very different light. It is the trial judge who, as a direct observer, gets a visceral sense, the “feel,” of the totality of the trial.

The larger picture here may well have been that the defense being mounted by Muhammad was simply not gaining any traction. It may have appeared to be spinning its wheels, in the desperate hope that something might work but with no articulable expectation of what that something might be. If Judge Ryan sensed that, realistically, that was what was happening, such a sense would inform his discretion, as he then performed Rule 5-403's delicate balancing of some “probative value,” on the one hand, against the risk of “undue delay” and “waste of time,” on the other hand, particularly with a jury that had already been in the box for a month. Such discretionary balancing is done with the judge's unique view to the totality of the entire trial. That sort of informed discretion will not be lightly second-guessed on appellate review.

Contention IV: Prior Recorded Testimony

With Muhammad's fourth contention, his arguments begin to drift into the nether world of marginalized significance. Muhammad's fourth contention is that Judge Ryan erroneously allowed the State to introduce into evidence the prior recorded testimony of Dr. Emily Ward from Alabama. On May 15, approximately half way through the trial, the State's case was reaching the point where it began to introduce evidence about the September 21, 2002, murder of Claudine Parker and attempted murder of Kelly Adams in Montgomery, Alabama. One of the witnesses was to have been Dr. Emily Ward, a medical examiner for the State of Alabama, who performed the autopsy on Claudine Parker. Dr. Ward had been properly served with a subpoena and she had agreed to testify in Maryland. On May 15, however, the Assistant State's Attorney proffered to Judge Ryan that although “we expected [her] to be here,”

Dr. Ward's adult son suffered some type of medical setback. She wouldn't be exactly clear to us. We attached a letter and an e-mail, e-mail correspondence to our motion and she has taken family medical leave from her job. She had to get him, she was trying to find him full-time care placement. She isn't able to work down in Alabama and she's not available to travel up here because of his medical condition. So, she is unavailable as well. Dr. Ward had previously testified against Muhammad, with respect to the same autopsy, in the capital trial against him in Virginia. She was fully available for cross-examination by him at that trial. In fact, at the Virginia trial Muhammad elected not to cross-examine Dr. Ward. The State moved, on May 15, to be allowed to introduce into evidence Dr. Ward's sworn testimony from the Virginia trial.

Along with its motion, the State introduced several documents, bearing on the diligence of its effort to obtain the live testimony of the witness. The first was an e-mail exchange between Dr. Ward and Paula Slan, the Victim-Witness Coordinator of the Montgomery County States Attorneys Office. On April 25, 2006, Ms. Slan wrote to Dr. Ward. I want to make sure that you know that you are scheduled to testify in the above case on May 17, 2006, in Montgomery County, Rockville, Maryland. This is a tentative date, and I will continue to keep you informed as we progress with the trial. I'd like to fly you in the night before your testimony and fly you home either the evening of your testimony or the next day. Please confirm you've gotten this notice, and also give me the name of the airport you use to fly out of in your area. Thank you for your cooperation.

Dr. Ward responded on the next day. I have tried to call you, but whenever I get a free moment, it is always after hours. I have had to take Family Medical Leave because of a critical problem with my adult son. I am most likely not going to be able to travel in May. Even if I find residential placement for him before then, I have a subpoena to be at a hearing in Nashville on the 17th at 1:00. Please call our personnel director, Evonne Benford, at the Auburn office if you need clarification. I can't talk with you today because I have two doctor's appointments and will be tied up most of the day. I am very sorry, but I don't have anyone to help me with my son and he can't be left alone. Emily Ward.

The second attached document was a letter to Vivek Chopra, the prosecutor, from F. Taylor Noggle, Jr., the Director of the Alabama Department of Forensic Sciences. Reference Dr. Emily Ward, who is a full-time Medical Examiner for the Alabama Department of Forensics, regarding her inability to appear in the Montgomery County Maryland court on May 17, 2006, the following issues are presented: Dr. Ward has a dependent son who requires constant medical attention which prohibits any overnight absences for travel until a resolution is obtained. She has Family Medical Leave Act rights to include twelve (12) weeks of leave to take care of a family member which she is presently using. If further assistance is required, please contact Evonne Copeland, Personnel Manager.

Judge Ryan ruled that Dr. Ward's prior recorded testimony would be received in evidence. Muhammad now contends that the State did not make an adequate showing of unavailability. The admissibility of former testimony is governed by Maryland Rule 5-804(b)(1), which provides in pertinent part: (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former testimony. Testimony given as a witness in any action or proceeding or in a deposition taken in compliance with law in the course of any action or proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. (Emphasis supplied).

The requisite unavailability of a witness, in turn, is controlled by subsection (a)(5) of the same rule, which provides in pertinent part: (a) Definition of unavailability. “ Unavailability as a witness” includes situations in which the declarant: (5) is absent from the hearing and the proponent of the statement has been unable to procure the declarant's attendance ... by process or other reasonable means. (Emphasis supplied).

The Threshold of Preservation

The State initially claims that this contention is not preserved because essentially everything that Dr. Ward testified to through the introduction of her former testimony came into evidence independently from other sources without objection. See Williams v. State, 131 Md.App. 1, 24-28, 748 A.2d 1, cert. denied, 359 Md. 335, 753 A.2d 1032 (2000), and the cases therein collected. In her recorded testimony, Dr. Ward described the “snowstorm effect” from the small fragments of metal that disintegrated as the bullet passed through the body. She identified the fragments removed from Claudine Parker's body and testified that Claudine Parker “died as a result of a gunshot wound of the back.”

Dr. Ward's autopsy report, however, also came into evidence but without objection. The autopsy report itself listed the cause of Claudine Parker's death and described the seven bullet fragments that were recovered from the wound track. The only thing missing was the phrase “snowstorm effect.” The sole value of the phrase “snowstorm effect,” however, was to provide the predicate for an inference that the bullet producing such an effect was fired from a high velocity rifle. That, in turn, was just the predicate for the inference that it was fired from Muhammad's Bushmaster rifle. Walter Dandridge, an ATF firearms examiner, also testified without objection. He examined the bullet fragments from Claudine Parker and determined that they had been fired from the high velocity Bushmaster rifle recovered from Muhammad's Chevrolet Caprice on October 24. At that point, the inferences were redundant.

In addition to the evidence referred to above, which was not objected to and which in and of itself would be dispositive in the State's favor on its non-preservation claim, Muhammad and Malvo had, on October 18, 2002, called Father William Sullivan in Ashland, Virginia, and told him to inform the police that the ballistics evidence from the Montgomery, Alabama, shootings would show that the same gun was being used in the sniper shootings in the Washington, D.C. area. We agree with the State that this contention is not preserved.

No Merit to the Contention, Even If Preserved Even if, however, this contention were, arguendo, preserved for appellate review, it would still not fare well on the merits. In addition to Maryland Rule 5-804 itself, the law that is absolutely dispositive on this issue is the opinion of the Court of Appeals in State v. Breeden, 333 Md. 212, 634 A.2d 464 (1993). Its analysis began by quoting with approval from the opinion of the Supreme Court in Barber v. Page, 390 U.S. 719, 722, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968): “[T]here has traditionally been an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross-examination by that defendant.” 333 Md. at 220, 634 A.2d 464 (emphasis supplied).

Breeden went on to discuss what is involved in proving unavailability. In a nutshell, the “unavailability” of a material witness includes one who is absent from a trial and the proponent of the statement of the witness has been unable to procure the witness's attendance by process or other reasonable means. “Other reasonable means” require efforts in good faith and due diligence to procure attendance. Id. at 222, 634 A.2d 464 (emphasis supplied).

Although the State bears the initial burden of showing diligence and good faith in its effort to obtain the missing witness, id. at 221, 634 A.2d 464, the trial judge's ultimate determination that the witness is, indeed, unavailable and that the rule has therefore been satisfied is subject to review by the abuse of discretion standard. Id. at 215-16, 634 A.2d 464; Cross v. State, 144 Md.App. 77, 88, 796 A.2d 145, cert. denied, 369 Md. 180, 798 A.2d 552 (2002).

Muhammad now suggests, for the first time on appeal, that additional steps might have been taken to procure the attendance of Dr. Ward. The Supreme Court reminded us, however, in Ohio v. Roberts, 448 U.S. 56, 75, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), “One, in hindsight, may always think of other things,” as it held that the prosecution did not breach its duty of good-faith even though additional steps might have been taken to locate missing witnesses. In Coleman v. State, 49 Md.App. 210, 226-27, 431 A.2d 696 (1981), this Court spoke to the same effect. Although it is undeniable that those additional sources of information suggested may have proved fruitful and perhaps should have been pursued for the sake of completeness, we cannot say that their omission was fatal under the circumstances. We think that the efforts actually undertaken by the State to locate [the witness] for trial demonstrated diligence and good faith on its part sufficient for the trial judge to properly conclude that [he] was “unavailable.” (Emphasis supplied).

We hold that Judge Ryan did not abuse his discretion in ruling that the State could use the prior recorded testimony of Dr. Ward.

Harmless Error in Any Event

Even if, arguendo, Judge Ryan had been in error in permitting the State to introduce the prior recorded testimony of Dr. Ward, we cannot imagine any error that could have been more harmless than this. Once the autopsy report itself was in evidence and once the ATF firearms examiner had given his ballistics report, Dr. Ward's prior testimony from Virginia added absolutely nothing to the State's case. We are not merely persuaded that such an assumed error would have been harmless beyond a reasonable doubt, we are so persuaded to a mathematical certainty.

Contention V: Removal In a Non-Capital Case

Muhammad has reveled in being a celebrity, except when it comes to his fifth contention. He claims that Judge Ryan committed error when he failed to remove the trial from Montgomery County. Because this was not a capital case, there was no automatic right of removal. Maryland Constitution, Article IV, § 8(b); Maryland Rule 4-254(b). In terms of when removal is called for in a non-capital case, the constitutional provision of Article IV, § 8(c) is fully implemented by Maryland Rule 4-254(b)(2), which provides in pertinent part: Non-capital cases. When a defendant is not eligible for the death penalty and either party files a suggestion under oath that the party cannot have a fair and impartial trial in the court in which the action is pending, the court shall order that the action be transferred for trial to another court having jurisdiction only if the court is satisfied that the suggestion is true or that there is reasonable ground for it.

On April 28, 2006, Muhammad requested that his trial be removed to another county for trial. Judge Ryan denied the request.FN6 The standard by which we review such a decision is clear. In Garland v. State, 34 Md.App. 258, 260, 367 A.2d 30 (1976), this Court stated: FN6. We are not considering Muhammad's subsequent motion of May 4 asking Judge Ryan to reconsider his ruling of April 28. If Judge Ryan was not in error on April 28, he was not in error for declining to reconsider that ruling on May 4.

This case involved non-capital charges and therefore the decision on removal rested in the sound discretion of the trial judge and will not be reversed absent a showing that that discretion was abused. (Emphasis supplied). See also Pantazes v. State, 376 Md. 661, 675, 831 A.2d 432 (2003); Shreffler v. Morris, 262 Md. 161, 170, 277 A.2d 62 (1971); Smith v. State, 51 Md.App. 408, 415, 443 A.2d 985, cert. denied, 293 Md. 618 (1982); Simms v. State, 49 Md.App. 515, 518, 433 A.2d 1199 (1981).

The Threshold of Preservation

The State argues that the merits of removal are not properly before us in that the defense waived any entitlement to seek removal. We agree. Muhammad's request of April 28 cannot be viewed in a vacuum. It had a very significant prehistory. Until he was permitted to discharge his counsel on March 29, 2006, Muhammad was represented by two very able attorneys. By agreement of the court and both parties, November 7, 2005 was set as the “filing date for all motions.” No request for removal was forthcoming. Judge Ryan held an omnibus hearing on March 6, 2006, to dispose of all pending pretrial motions. Defense counsel confirmed at that time that the defense would not be requesting a removal of the case. MS. WINFREE [Prosecuting Attorney]: The last issue, is it the last one, is that we have been advised by the Defense that there will not be a motion for change of venue. THE COURT: Okay. MS. WINFREE: Just so for our planning purposes. THE COURT: We agreed with that. (Emphasis supplied).

One of Muhammad's failings as a pro se attorney was his difficulty in appreciating that the day on which he became his own attorney, March 29, 2006, was not Day One of the proceedings. On that day he simply became the successor to other attorneys who had represented him before. There was a significant, and binding, procedural history to the case before he came to represent himself, and he could not ignore that procedural history.

At a subsequent status conference on March 31, Muhammad placed his stamp of approval on actions earlier agreed to by his former lawyers and the State. Pursuant to that agreement, letters were sent to 1000 prospective jurors, asking them to respond in writing if they had legitimate reasons that would prevent them from serving on what could be a five-week trial. Counsel for both parties surveyed the responses, which were then submitted to the Jury Commissioner.

When Muhammad was permitted to discharge his former counsel on March 29, he requested the appointment of standby counsel. As of April 24, three attorneys had agreed to serve in that capacity. Muhammad was introduced to his three standby attorneys on that day. With them present and with the assistance of the Jury Commissioner, Judge Ryan explained to Muhammad the jury selection process and discussed with him the proposed voir dire questions that would be asked. At that point, the trial was scheduled to begin one week later, on Monday, May 1. Everything appeared to be moving along on schedule.

It was at the status conference on Friday, April 28, with trial scheduled to begin on Monday, that Muhammad made known his unanticipated change of heart with respect to removal. Judge Ryan's basic reason for denying Muhammad's eleventh-hour request was that it was untimely, as indeed it was. THE COURT: Well, one it is untimely. Two, Mr. Muhammad, earlier in this proceeding, I forget which one, but Mr. DeWolfe and Mr. Shefferman, one of them specifically stated on this record that there wasn't going to be a request for removal. But that's okay, and now you're asking for it and I understand that, but I'm going to deny your request to remove the case.

It is a least debatable whether Muhammad's response, “I understand what you're saying, Your Honor. Your Honor, is it possible we could make the motion part of the record?” adequately preserved this issue for appellate review. We will, however, treat it as adequate preservation. We hold that Judge Ryan did not abuse his discretion in ruling as he did.

Hypothetically, The Merits

If the merits were before us, the appellant would fare no better. After denying Muhammad's motion as untimely, Judge Ryan presaged the screening process that would follow: I believe we're going to find, we're going to find jurors who will be fair and impartial to try the case. I know there's been a lot of publicity, and we're going to go into that as when we start questioning the individual jurors, what they know and what they believe and have they formed an opinion that is unchangeable or not. This is a big community. If this was a smaller community, you would be more likely to have your case removed, but there's almost a million people who live in this community, and we're going to get a lot of people from different backgrounds. We're going to find people in this county who can be fair and impartial and will be fair and impartial who will base their decision in your case solely upon the evidence they hear in the courtroom and without regard to what they've read about it, heard about it, seen. We're going to find impartial people.

The very thorough voir dire examination of the prospective jurors took four trial days. After the jury was selected and the case had begun, Judge Ryan took up Muhammad's earlier motion that he reconsider his ruling on removal, along with another motion to dismiss the jury as tainted. He observed with respect to the jurors who had ultimately been chosen to sit: I believe each of the jurors was questioned carefully. Each juror has told us, and each juror was under oath, that they would be able to decide this case based only on the evidence received in the courtroom without regard to whatever they heard or read about in this case outside of the courtroom. And I believe them.

At the end of the four-day selection process, Muhammad accepted the jury panel. At that point, he still had peremptory strikes available, but he expressly confirmed that he had no wish to exercise those strikes. Asked if he was satisfied with the jury as empaneled, he replied, “Yes, Your Honor.” Cf. Gilchrist v. State, 340 Md. 606, 617, 667 A.2d 876 (1995); Berry v. State, 155 Md.App. 144, 159, 843 A.2d 93 (2004). He then accepted four alternates without exercising any of his four remaining strikes. The jury was then sworn.

Muhammad makes no argument that any of the jurors who heard his case was not capable of rendering a fair and impartial judgment on the evidence. His argument, instead, is an undifferentiated jeremiad about the pretrial publicity in this case generally. There had, indeed, been massive publicity about the October, 2002, crime spree, but three and one-half years had gone by.

Muhammad also conveniently ignores the fact that the massive press, television, and radio coverage of the crime spree and its aftermath was nationwide. That includes all parts of Maryland, and, had a removal been granted, it would have to have been to some place in Maryland. Ironically, Muhammad's argument refers to “the numerous articles from the Washington Post and Baltimore Sun.” After eliminating those areas covered by the Post and the Sun, what part of Maryland is left? With respect to widespread press coverage, moreover, Simms v. State, 49 Md.App. 515, 520, 433 A.2d 1199 (1981), quotes with approval from the decision of the Supreme Court in Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).

It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. (Emphasis supplied).

The only particularization of the inadequacy of the process that Muhammad provides is to point to a single prospective juror, No. 116, who was not stricken for cause notwithstanding the fact that she at one point expressed “grave reservations” about whether she could be fair and impartial. Although her ultimate conclusion was that she could be fair and impartial, that prospective juror did not sit as a juror or as an alternate and Muhammad did not have to use one of his peremptory strikes to remove her. Even if, arguendo, Muhammad's motion for a removal of his trial had been timely filed, he failed to make a case for it on the merits.

Hypothetically, Harmless Error

Even if, arguendo, there had been error in denying Muhammad's motion to remove his trial, we are persuaded beyond reasonable doubt that it would have been harmless. The result would have been the same wherever in Maryland this case had been tried. The problem of pretrial publicity was universal from Oakland to Snow Hill, and no jurisdiction could have handled that problem more deftly than did Montgomery County.

Contention VI: Probing a Venire Panel

Muhammad's sixth contention is that Judge Ryan erroneously declined to question specifically three members of a venire panel about a potentially damaging conversation overheard and reported by one member of the panel. The stage for this contention must be set. The prospective jurors were divided into three contingents for voir dire processing. Jurors 1 through 100 were to remain in the court house on the first day of trial, May 1. Jurors 101 through 250 were to return to the court house on the following day, May 2. Jurors 251 through 403 were to report on May 3. The present contention concerns only the jurors in the first contingent, those who remained in the court house on May 1.

On each of the three days of voir dire, one-half of the reporting jurors would remain in the fourth floor jury room while the other half would report to the courtroom to be examined. On the first day, Prospective Juror # 50 was called to the bench and, at the conclusion of her voir dire, reported the following to Judge Ryan: JUROR NO. 50: When I was in the 4th Floor room, there was a group of four people who I heard in conversation. They were talking about this case and the two Virginia cases, and [someone] said something along the lines of, “I don't know why we're here, twenty minutes and guilty, let's get this over with.” And, I just was concerned to hear that conversation and wanted to bring it to the Court's attention. I don't know who- THE COURT: Do you know-you don't know their numbers. JUROR NO. 50: I know one of them, who's actually in the room out there, was No. 59. I don't know what she said in that conversation, but she was in that group, and the other three women were not in the group that was called up with us. So, they haven't been up here yet. So, I don't know what numbers they were. At Muhammad's suggestion, Judge Ryan then called Prospective Juror # 59 out of order. THE COURT: Okay. So, you have not formed an opinion. JUROR NO. 59: (No response.) THE COURT: That's a no. JUROR NO. 59: No. I haven't heard all the evidence, I mean, I've seen things on television, but- THE COURT: Now, ma'am, a previous juror who came into the courtroom told us that you were overheard upstairs on the fourth floor talking about this case. JUROR NO. 59: Oh. THE COURT: Is that correct? JUROR NO. 59: It was a bunch of people talking. THE COURT: And, what were their numbers? Do you know? JUROR NO. 59: I don't know their numbers. THE COURT: And, that there was some discussion about “Why is this case even being tried? It's open and shut. Take twenty minutes, it's over.” JUROR NO. 59: No, I didn't say that. THE COURT: No. I'm not saying you did, but that was the- JUROR NO. 59: Oh. THE COURT: That was the nature of the discussion. Did you hear that? JUROR NO. 59: Yes. THE COURT: And, would that conversation affect you and your ability to be impartial in this case? JUROR NO. 59: Yes, I'd be very impartial. THE COURT: And, you're telling me you weren't part of that conversation, but you heard it. JUROR NO. 59: I heard it.

Judge Ryan asked Prospective Juror # 59, “Do you believe that the defendant should not be found guilty of these charges unless the prosecution proves his guilt beyond a reasonable doubt?” The prospective juror responded, “Well, maybe-I don't know with all that I've heard.” Judge Ryan then struck Prospective Juror # 59 for cause.

The issue then became that of what to do about possible further contamination. Muhammad asked that Prospective Juror # 59 be held in the courtroom so that she could identify the faces of those who had participated in that conversation even if she did not know their numbers. Judge Ryan declined to conduct that sort of an investigation, insisting that he would conduct an extensive examination of each prospective juror individually in order to search out possible bias. Judge Ryan stated, “I'm going to rely on the people to tell me the truth, and I have to do that. I'm not going to stop and do an investigation of this. No, sir.”

Judge Ryan declined to grant Muhammad's motion to strike all of the jurors who had reported on May 1. He stated that all prospective jurors would be asked “pointed questions about what they've heard by talking and listening and reading.” Judge Ryan continued with the voir dire. The next ten prospective jurors after Prospective Juror # 59 were struck for cause.

In advance of the voir dire examination, cards had been distributed to the prospective jurors posing a number of questions. The prospective jurors checked boxes indicating “yes” or “no.” The cards were collected and were in the hands of the judge as each prospective juror was summoned to the bench for individual questioning. At one point Muhammad moved to have Judge Ryan strike “in advance” any prospective juror who had acknowledged a “preconceived” opinion regarding his guilt. Judge Ryan declined to do so, explaining, “It's why we have the individual voir dire. So we can talk to people and figure out what they really mean.”

Muhammad's literal contention is that Judge Ryan erroneously refused to question the respective jurors about the overhead conversation, a fact that he alleges would reveal cause for disqualification. Muhammad, however, never requested that all members of the May 1 venire panel be so questioned. Near the end of the May 1 voir dire, Muhammad's literal request was that prospective jurors # 65, # 65A, and # 72 be so questioned. The contention that Muhammad now raises, therefore, is only preserved for appellate review with respect to prospective jurors # 65, # 65 A., and # 72. Maryland Rule 8 -131(a); Taylor v. State, 381 Md. 602, 612-16, 626-27, 851 A.2d 551 (2004); State v. Brown, 324 Md. 532, 547-48, 597 A.2d 978 (1991). Judge Ryan declined to ask these three jurors specifically, about that conversation, but examined them thoroughly about their ability to be fair and impartial. The examination of Prospective Juror # 65 is representative of the three inquiries. THE COURT: Okay. Now, let me ask you another question, you've also told us that you have formed an opinion- JUROR NO. 65: Yes. THE COURT: About the guilt or innocence o f Mr. Muhammad. Is that correct? JUROR NO. 65: Yes. THE COURT: And, is that based on what you've read about or heard about? JUROR NO. 65: Yes. THE COURT: Do you have any personal knowledge of any of the facts in this case? JUROR NO. 65: No. THE COURT: So, it's based on what you know about it or heard about it or talked about? JUROR NO. 65: Right. THE COURT: Well, most everyone who's come in has said the same thing. They've heard about it. JUROR NO. 65: Right. THE COURT: So, what we're asking people is this, can you set that aside and can you be open-minded, impartial and not make a decision until you hear the evidence presented in the courtroom in this case? Can you do- JUROR NO. 65: I probably-I probably can. THE COURT: You can? JUROR NO. 65: Um-hum. THE COURT: And, you understand that the prosecution has the burden of proof. They have to prove guilt beyond a reasonable doubt. JUROR NO. 65: Yes. THE COURT: Excuse me. And, the defendant cannot be found guilty unless the evidence is beyond a reasonable doubt- JUROR NO. 65: Right. THE COURT: As a matter of fact, if it isn't beyond a reasonable doubt, the defendant would be found not guilty. JUROR NO. 65: Um-hum. THE COURT: Understand that? JUROR NO. 65: I do. THE COURT: And, also that a defendant, such as Mr. Muhammad, is presumed to be innocent- JUROR NO. 65: Um-hum. THE COURT: Of the charges placed against him. JUROR NO. 65: Right. THE COURT: And that this presumption remains with him through out every stage of the case until it's overcome, if it is overcome, by the prosecution's proof. JUROR NO. 65: Right. THE COURT: And that the defendant has no obligation to prove his innocence. Do you understand that? JUROR NO. 65: Right. THE COURT: And, you believe that an innocent person can be charged with a crime, don't you? JUROR NO. 65: I do, I do.

The examination of Prospective Juror # 65A was essentially indistinguishable. Prospective Juror # 72 was questioned in a similar manner. When asked whether he had talked about the case generally with other members of the venire, he replied, “I have heard some people talking. In conversations I've had with other prospective jurors, we stayed off the subject of any particulars about the case.”

We see no error in Judge Ryan's declining to question those three prospective jurors more specifically about the reported conversation. “[T]he voir dire process is designed to ferret out grounds for juror disqualification, and give substance to the constitutional guarantees to criminal defendants of a fair and impartial jury trial.” Owens v. State, 170 Md.App. 35, 71-72, 906 A.2d 989 (2006), affirmed, 399 Md. 388, 924 A.2d 1072 (2007). Except for certain mandatory questions not at issue here, decisions about the extent of the voir dire procedure, as well as specific questions to be asked on voir dire, fall squarely within the discretionary range of the trial judge. Stewart v. State, 399 Md. 146, 159-61, 923 A.2d 44 (2007); State v. Logan, 394 Md. 378, 396, 906 A.2d 374 (2006); Curtin v. State, 393 Md. 593, 599-603, 903 A.2d 922 (2006); White v. State, 374 Md. 232, 241, 821 A.2d 459 (2003); Perry v. State, 344 Md. 204, 218, 686 A.2d 274 (1996); Boyd v. State, 341 Md. 431, 436, 671 A.2d 33 (1996); Davis v. State, 333 Md. 27, 34-35, 633 A.2d 867 (1993).

The individualized screening for bias in this case was meticulously thorough. On the preliminary screening in writing, each prospective juror was given 32 questions to answer by checking “yes” or “no.” Among them were the following: [Question two]: “There's been a great deal of media attention focused on the investigation of the shootings and the arrest of the defendant and his codefendant. Has anyone in the prospective jury panel already formed an opinion about the guilt or innocence of the defendant, or about any fact or issue to be decided in this case?” * * * [Question eight]: “During the trial I will instruct you as to the law applicable to the facts of this case. Is there any member of the prospective jury panel who would be unable to base a decision on the evidence presented in court, solely on the evidence presented in court, as instructed by me, without any regard to pity, anger, sympathy, or any other emotion?” * * * [Question nine]: “Is there any ... member of the prospective jury panel who would be unable to base a verdict solely on the evidence presented in the courtroom and the law instructed by me, without regard to anything else they believe they know about this case?” * * * [Question ten]: “Is there any member of the prospective jury panel who would be unable to base their verdict solely on the evidence presented in the courtroom and the law as I tell you it is, without regard to anything you may have learned in the media about the case, or the defendant's alleged role in it?” * * * [Question eleven]: “The defendant is presumed to be innocent of the charges placed against him. This presumption of innocence remains with the defendant throughout every stage of the trial. The presumption of innocence is not overcome unless the State proves guilt beyond a reasonable doubt. The defendant has no obligation to prove his innocence.... Is there any member of the prospective jury panel who has difficulty accepting these concepts? * * * [Question nineteen]: “[I's there anyone who harbors feelings that would bias you in favor of the prosecution?” Each prospective juror was ultimately questioned individually at the bench, in the presence of Muhammad and the prosecutors, so that his or her answers could be explored in more depth and his or her credibility evaluated. In response to the voir dire, many prospective jurors indicated that they had formed an opinion which they could not put aside. All of those persons were struck for cause. Every prospective juror who was cleared for service, on the other hand, had declared under oath that he or she “would be able to decide this case based only on the evidence received in the courtroom without regard to whatever they had heard or read about in this case outside of the courtroom.” Judge Ryan found as a fact that those jurors were qualified to serve. Dingle v. State, 361 Md. 1, 15-19, 759 A.2d 819 (2000). His findings in that regard were not clearly erroneous.

There is, we note, no complaint about the screening of the venire panels that appeared on May 2 and May 3. At the end of the entire voir dire process, Muhammad accepted the jury as empaneled. See cf. Gilchrist v. State, 340 Md. 606, 617-18, 667 A.2d 876 (1995); Berry v. State, 155 Md.App. 144, 159, 843 A.2d 93, cert. denied, 381 Md. 674-77, 851 A.2d 594-95 (2004). As noted, Muhammad had not exhausted his peremptory challenges.

On the merits, we hold that Judge Ryan did not abuse his discretion and committed no error in screening the venire panel for possible bias.

A “Slam Dunk” of an Alternative Holding

In terms of the total absence of any possible harm, the State is holding a pat hand. Even if, purely arguendo, Judge Ryan was in error in not pressing prospective jurors # 65, # 65A, and # 72 more closely and more specifically about whether they overheard the conversation reported by Prospective Juror # 50, we would be convinced beyond any reasonable doubt that such hypothesized error was harmless. Prospective jurors # 65, # 65A, and # 72 did not sit on the jury that heard the case. Neither was any one of them an alternate.

Contention VII: A Journey Into Immateriality

Muhammad's seventh contention comes out of deep left field. It is difficult to state the contention because it is difficult to comprehend the contention. On the next to last day of trial, Muhammad called as a defense witness Officer Ralph Daigneau of the Prince William County, Virginia, Police Department. At the outset of the trial, the State had received the permission of the court, as an exception to the sequestration rule, to keep Officer Daigneau in the courtroom throughout the trial because he was the person who had assisted in organizing the mass of State's evidence and who could locate and produce a particular piece of evidence whenever it was called for.

On the actual merits of the case, Muhammad briefly questioned Officer Daigneau about an investigation that took place after the shooting of Dean Meyers in Virginia, on October 9, 2002. Pursuant to an anonymous tip, Officer Daigneau and others searched a residence in Virginia on October 13, 2002, and recovered a cache of guns and ammunition. It turned out, however, to be a false trail, as the residents of the searched premises were absolutely eliminated as suspects in the Dean Meyers murder.

The examination of Officer Daigneau that is now the heart of this contention, however, concerned his other role, at trial, as the custodian and the monitor of the location of the various items of physical evidence. Muhammad sought to develop, through Officer Daigneau, that the State had not complied with its discovery obligations. The allegation gets a little bit murkier. The Assistant State's Attorney had represented to the court, back on April 6, that all of the evidence had been fully available for inspection by Muhammad's then counsel and that counsel inspected or received copies of everything that was of interest to them. In a free-wheeling attack, Muhammad did not allege that his counsel had not received all the discovery that was due, but that he, personally, had not received complete discovery. In his brief, he continues to try to separate himself from his former counsel, as he argues that “what defense counsel thought important was not necessarily what Mr. Muhammad thought important to his defense.”

In a rambling direct examination of Officer Daigneau, Muhammad effectively insinuated that the State had not fully complied with its discovery obligation. Muhammad's questions alone raised that specter. Q [MUHAMMAD] Sir, to your knowledge do I have anything that the State did not give me pertaining to the sniper investigation? Q Okay. Sir, you do know what discovery is don't you? Q Sir, do you have any knowledge of your own personal knowledge that John Allen Muhammad['s] former attorneys gave him these videos that the prosecutor just got finished talking about about the surveillance taping and the 911 taping? Do you have any knowledge of your own personal knowledge? Q Okay. Do you have any personal knowledge, okay, that my former attorney ever retrieved any of that evidence from the prosecutor? Q Okay. Sir, are you aware that I asked for this specific evidence from the prosecutor and they refused to give it to me? Are you aware of that? Judge Ryan attempted to point out to Muhammad the fact that his questioning really amounted to testifying. THE COURT: See, here's the problem. You asked the witness isn't it true that I asked for something and I didn't get it. Now, that's not really a question.

In any event, the State, arguably overly sensitive to Muhammad's journey into immateriality, sought, in its cross-examination of Officer Daigneau, to show that it had complied with its discovery obligations. Muhammad, although he now complains about a number of questions on cross-examination, actually objected to just one of them. Berry v. State, 155 Md.App. 144, 172, 843 A.2d 93 (2004); Fowlkes v. State, 117 Md.App. 573, 588, 701 A.2d 862 (1997), cert. denied, 348 Md. 523, 704 A.2d 1244 (1998). Q. And you're aware that every single piece of evidence in possession in the State has been produced and made available to the Defense in this case? MR. MUHAMMAD: I object, Your Honor. THE COURT: Overruled. THE WITNESS: That's been what's represented to me, yes. Muhammad's questions on redirect examination continued to harp on the State's discovery obligation. Q Sir, do you have any knowledge of your own personal knowledge that John Allen Muhammad former attorneys gave him these videos that the prosecutor just got finished talking about about the surveillance taping and the 911 taping? Do you have any knowledge of your own personal knowledge? Q Okay. Do you have any personal knowledge, okay, that my former attorney ever retrieved any of that evidence from the prosecutor? Q Okay. Sir, are you aware that I asked for this specific evidence from the prosecutor and they refused to give it to me? Are they aware of that? Q Okay, sir, aren't you also aware that I've asked the prosecutor for all of the 911 tapes that they have and they have not given me one? Aren't you aware of that? Q Are you aware that I've asked the prosecutor for the 911 taping? Q Are you aware that I've asked the prosecutor for the 911 transcripts?

At the end of Officer Daigneau's examination, Judge Ryan, who had presided over the entire discovery process pretrial, at first expressed his understandable exasperation with the very raising of the issue. THE COURT: I'm talking. I'm trying to make sense out of what's going on here. And no time during the time you were represented did your attorneys indicate that they had been unable to obtain discoverable information. At the time you discharged your attorneys and decided, chose to represent yourself I told you then that you were bound by the discovery that had been provided by the State and you understood that. And then we went through a period, a short period, of what you had and what you didn't have and your access to the computer and you wanted a printer and the CDs and it has all been provided to you. And you stated on the record you were satisfied with what you had received. (Emphasis supplied).

He further concluded that although the entire issue was, indeed, immaterial, it had arguably raised some question as to prosecutorial impropriety in the minds of the jurors. THE COURT: Okay, well, that's the end of it. And whatever happened between you and your lawyers is between them. But it is important for the people who are listening to all this evidence and have to weigh it and evaluate it to know that there has been no funny business, that all the information that the Defense was entitled to has been provided and made available. .... THE COURT: Okay, I'm not going to try to go any further. I mean I believe it is important based on the types of questions that are being asked to tell the jury that under our System the State is required to provide information to the Defense that has been provided in complete compliance with the rules. (Emphasis supplied).

Accordingly, Judge Ryan, pursuant to Maryland Rule 4-325(a), instructed the jury as follows: Now, ladies and gentlemen, you've heard some discussion in this trial about discovery and material. Under our system of rules in criminal justice, the prosecutor has an obligation to provide information, all the information it has about the investigation in the case to the Defense. And there are rules that require that. And the State has complied with all of the rules of discovery. All the information that's relevant and that they are obligated to have provided was provided to the Defense. (Emphasis supplied). Muhammad lodged no objection to the instruction. Maryland Rule 4-325(e); Sims v. State, 319 Md. 540, 549, 573 A.2d 1317 (1990); Martin v. State, 174 Md.App. 510, 520, 922 A.2d 598 (2007).

To one limited extent we agree with Muhammad's contention as it asserts, “[w]hether or not all rules of discovery have been complied with is an issue for the judge to make pretrial. It is not an issue for the jury to pass on.” That is absolutely correct, and that is why what happened on this issue is absolutely immaterial. Muhammad does not bring us a contention alleging a discovery violation. Any issues involving discovery were settled pretrial, as they should have been, by Judge Ryan. Nor does the appellant bring us a contention alleging the incompetence of counsel, based on the adequacy of communication between Muhammad and his former lawyers.

Muhammad alleges a trial error. Whether discovery requirements are complied with or are violated, however, has nothing to do with the merits of guilt or innocence and is not in any way a jury question. The only possible error in this case, but definitely not a trial error, may have been an overly indulgent error in judgment in allowing Muhammad to waste an hour of everybody's time in chasing a will-o'-the-wisp down an immaterial and dead-ended tangent. The trial was simply off the tracks for sixty minutes. For all the difference it made to them, the jurors could have left the courtroom and no damage would have been done.

Once, however, this immaterial issue of discovery was, for better or for worse, out on the table, we see no impropriety in how the State responded to it and no error in how Judge Ryan handled it. There was no error.

It Would Not Have Made Any Difference If There Had Been

Even if, arguendo, there had been error in this regard, it self-evidently had no adverse influence on the verdicts of the jury. Whatever was done, rightly or wrongly, with respect to discovery was none of the jury's business. Realistically, moreover, the jury could not care less about it. The jury does not supervise or regulate the behavior of the parties to the case. From the jury's point of view, discovery, “whatever that means,” is some administrative detail that is the responsibility of somebody else and is, in any event, all settled before the jury begins its own distinct job of searching for the factual truth. This false alarm did not influence the jury's verdicts.

Contention VIII: A Stealth Contention

In his eighth contention, Muhammad now claims that Judge Ryan erroneously denied him his Sixth Amendment right to confront one of his accusers when Judge Ryan declined to let him conduct a re-cross-examination of Lee Malvo. It is a stealth contention. The entire issue that the appellant now presents so prominently on appeal lay so thoroughly hidden and so deeply buried in the trial record that only the most creative of legal paleontologists could have dug it up.

At the pretrial hearing on March 6, 2006, the State prevailed on Judge Ryan to permit the introduction of “other crimes” evidence to help to prove, inter alia, the identity of Muhammad as one of the shooters in the Montgomery County cases on trial. As part of that “other crimes” evidence, the State did show at trial a murder in Washington, D.C.; an attempted murder in Prince George's County; a murder and an attempted murder in Montgomery, Alabama; and five murders or attempted murders in four separate Virginia counties. At the pretrial motions hearing, however, the State had received permission to introduce evidence of yet another “other crime,” one occurring in Clinton, Maryland on September 5, 2002. The allegation was:

On September 5, 2002, in Clinton, Maryland, Paul J. LaRuffa (“LaRuffa”) was shot and robbed outside of Margellina's Restaurant, an establishment he owns. He was shot five times with a .22 caliber revolver. His Sony laptop and a briefcase containing bank deposit bags and $3,500 in cash was stolen. The Sony laptop was found in the Caprice with the Defendant on the day of his arrest. Additionally, six weeks after the robbery, the briefcase and empty bank deposit bags were found along with some clothing about a mile from the LaRuffa shooting; this clothing yielded Malvo's DNA.

In its discretion, however, the State, at trial, decided not to use evidence of that shooting in Clinton. During the State's direct examination of Lee Malvo, no reference to the Clinton shooting was made. It was only during the cross-examination of Malvo that Muhammad himself first raised the subject of the September 5, 2002 crime. [MR. MUHAMMAD:] Are you aware of who Mr. Paul LaRuffa is? [MR. MALVO:] Yes. [MR. MUHAMMAD:] Okay. Can you tell me what time his, what date his computer was allegedly taken from here? [MR. MALVO:] What date? [MR. MU HAM MAD:] Yeah, What day? [MR. MALVO:] I knew it was in early September, I cannot tell you the exact date. [MR. MUHAMMAD:] Okay. Are you aware the date was September 5th '02? [MR. MALVO:] I'm not aware of the day. [MR. MUHAMMAD:] Okay. Was his information known to you in your first trial? [MR. MALVO:] Yes. (Emphasis supplied).

The subject of a computer taken from Paul LaRuffa having been introduced by Muhammad, the State pursued it briefly on its redirect examination of Malvo. As will be explained, the interest was more in the acquisition of LaRuffa's computer than in the shooting of LaRuffa. Malvo nonetheless gratuitously introduced the fact of the shooting. The State's pursuit of the matter was simply to establish that the acquisition of LaRuffa's computer on September 5, 2002, was not by Malvo alone, but also by Muhammad. [THE PROSECUTOR:] Now he asked you some questions about the-he asked if you aware who Paul LaRuffa is? Do you remember that? [MR. MALVO:] Yes. [THE PROSECUTOR:] Can you tell us what you know about the computer that was found in the 1990 Caprice at the time of your and Mr. Muhammad's arrest? [MR. MALVO:] I stole that Sony Vio from Paul LaRuffa the night I shot him four times. [THE PROSECUTOR:] The night you shot him? [MR. MALVO:] Yes. [THE PROSECUTOR:] And that was in Prince George's County, Maryland? [MR. MALVO:] Yes. [THE PROSECUTOR:] If you know? It was? [MR. MALVO:] Yes. [THE PROSECUTOR:] And who else was involved in the shooting and the robbery of Paul LaRuffa and the theft of that laptop computer, Mr. Malvo? [MR. MALVO:] Mr. Muhammad identified and planned the entire robbery. [THE PROSECUTOR:] And the computer that you stole from Mr. LaRuffa, that was the same computer that was inside the 1990 Caprice, is that correct? [MR. MALVO:] Yes. [THE PROSECUTOR:] And did you ever, you and Mr. Muhammad, at any time have any computer other than the one that you stole from Mr. LaRuffa? [MR. MALVO:] None. (Emphasis supplied).

Muhammad now contends that the effect of the redirect examination was to accuse him, for the first time, of an additional shooting and that he was denied his right to confront that accusation. He contends: Malvo's testimony on re-direct examination-that he had shot LaRuffa four times while robbing him of the laptop computer and that Mr. Muhammad had planned the entire robbery-was beyond the scope of redirect. It went far beyond merely responding to Mr. Muhammad's question about the date on which they obtained Mr. LaRuffa's computer, and instead elicited new matter that Malvo had not previously mentioned during direct- or cross-examination. The trial court's refusal to permit recross-examination violated Mr. Muhammad's right to confront and examine witnesses against him guaranteed by the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights, and requires reversal. (Emphasis supplied).

Such a contention is a monumental and opportunistic afterthought. It was certainly below the radar of anybody in the courtroom at the time. Lee Malvo had been on the stand for almost two full days. His direct examination took place on May 23 and filled 246 pages of transcript. On May 24, Muhammad cross-examined Malvo for most of the day, filling another 155 pages of transcript. The redirect examination by the State, also on May 24, was recorded in 13 pages of transcript. As Judge Ryan was excusing Malvo, one brief exchange with Muhammad occurred. MR. MUHAMMAD: Your Honor, I have one more question. THE COURT: No, sir. See Pantazes v. State, 376 Md. 661, 680, 831 A.2d 432 (2003); Merzbacher v. State, 346 Md. 391, 413-14, 697 A.2d 432 (1997); Ebb v. State, 341 Md. 578, 587, 671 A.2d 974 (1996); Stouffer v. State, 118 Md.App. 590, 625, 703 A.2d 861 (1997).

There was no objection lodged by Muhammad. There was no proffer made about what subject that “one more question” might have explored. The preceding redirect examination of Malvo, indeed, had touched upon a number of subjects. Among them were the nature of the plea agreement that Malvo had reached with the State; the question of whether he had rehearsed his testimony; his having been taught by Muhammad with respect to 1) ways to get away from a shooting scene, 2) ways to choose a good site for a shooting, and 3) being trained to shoot; and the fact that he had been treated like a son by Muhammad. Also inquired into were 1) the shootings in Montgomery, Alabama; 2) the shooting of Paul La Ruffa in Clinton, Maryland, on September 5, 2002; and 3) the shooting of Dean Meyers in Virginia. Also touched upon were the subjects of Malvo's reaction to Muhammad's romantic relationship with a white woman in the State of Washington; the activities of Malvo and Muhammad at the Bull's Eye Gun Shop; Muhammad's strategy of always traveling by bus; and Malvo's conversations with Detective June Boyle. For all we know and for all Judge Ryan knew, Muhammad might have wished further to pursue any of those subjects or something else entirely.

When Judge Ryan said, “No,” to Muhammad's request for, “One more question,” however, there was no objection. There is nothing, therefore, preserved for appellate review. Maryland Rule 8-131(a). Quite aside from that foreclosure of further review, sufficient unto itself, there was no proffer as to what that one more question might have been or as to what the expected answer to it might have been. With no less than ten subjects having been raised on redirect examination, it is rank speculation as to which the “one more question” might have been directed if, indeed, it was to be directed at any of them.

Even If Preserved, There Is No Merit

Even if, arguendo, Muhammad's present objection to not being allowed “one more question” were preserved for appellate review, we would see no merit in it. Muhammad had been permitted to conduct a full and open-ended cross-examination of Malvo. He himself had introduced the subject of the September 5, 2002, theft from Paul LaRuffa. He was entitled at that time to explore that incident in any detail that he wished.

The State's redirect examination, moreover, was focused on LaRuffa's computer not LaRuffa himself. (The State did not even inquire as to whether LaRuffa were alive or dead.) The inquiry was as to when the computer was taken and by whom it was taken. That was the computer that was ultimately recovered from the Chevrolet Caprice on October 24, 2002. That was the computer that had a treasure trove of incriminating data in its memory. It was important for the State to establish that the computer had been in the possession of Muhammad and Malvo since September 5, 2002, in order to forefend any defense suggestion that the computer had come into the hands of Muhammad and Malvo at some later time and that some other unknown person had placed the incriminating data into it. This is the realistic reading we give to the State's redirect examination of Malvo. An entirely new subject had not been opened up by the redirect, and Judge Ryan did not abuse his discretion in closing down the examination of Malvo after two full days and 414 pages of transcript. Maryland Rule 5-611(a); Simmons v. State, 392 Md. 279, 296, 896 A.2d 1023 (2006). Judge Ryan, moreover, was never alerted as to what Muhammad was interested in pursuing further with his “one more question.” Muhammad builds his abuse of discretion argument on pure speculation.

In the State's final argument to the jury, the name Paul LaRuffa was never mentioned and the entire incident of September 5, 2002, was never referred to. Muhammad, in his closing argument, did bring up the subject of LaRuffa and the theft of the computer, and the State, in rebuttal, made a brief response to that argument. Both Muhammad and the State, however, argued exclusively about the fact and the timing of the computer's having come into Muhammad's possession. There was no reference whatsoever to LaRuffa's ever having been shot. The appellant is attempting to make something out of nothing.

Harmless Error In Any Event

Even if, arguendo, the appellant's present complaint had been preserved for appellate review and even if, arguendo, his re-cross-examination of Malvo had been erroneously curtailed, such a hypothesized error would have been harmless beyond a reasonable doubt. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); Smallwood v. State, 320 Md. 300, 308, 577 A.2d 356 (1990); Owens v. State, 161 Md.App. 91, 111-12, 867 A.2d 334 (2005).

Even if we were to assume that the “one more question” might have demolished the credibility of Malvo as to the incident of September 5, 2002, and that the failure to have permitted that “one more question” left unscarred that fleeting allusion to a tenth “other crime,” it made no difference whatsoever to the identification of Muhammad as the perpetrator of the six murders in Montgomery County. “Other crimes” material is, by its very nature, peripheral evidence used for the indirect purpose of giving rise to an inference. It does not go directly to a core element of the crime on trial. It creates an analogy. Nine “other crimes” had already been established in great detail by phalanxes of lay witnesses and a wealth of scientific evidence. They served to bolster an identification that would have stood even without such bolstering. It is inconceivable that the possible allusive addition of a tenth “other crime” was the pivotal factor that persuaded the jury of Muhammad's guilt. Defense Counsel's characterization of the reference to the shooting of LaRuffa as “devastating testimony” is hyperbolic. It is as if we had suddenly to revise upward, by one, the casualty reports from Antietam. One more casualty would not make the seismograph quiver, nor would the addition of a tenth “other crime” in this case.

Contention IX: The Phenomenon of Cumulative Error

The appellant finally argues that the cumulative adverse effect of multiple errors might well compel a reversal even if each contributing error, standing alone, could be dismissed as harmless. That statement of law is absolutely correct. Williams v. State, 342 Md. 724, 755, 679 A.2d 1106 (1996). And cf. Bowers v. State, 320 Md. 416, 436-37, 578 A.2d 734 (1990). The principle, however, is inapplicable to this case.

The contention is one that is increasingly voguish, and it deserves some analysis. “Cumulative error” is a phenomenon that exists only in the context of harmless error analysis. More precisely, it exists only in the context of multiple findings of harmless error. In the case of two or more findings of error, the cumulative prejudicial impact of the errors may be harmful even if each error, assessed in a vacuum, would have been deemed harmless. Where the prejudice from each of two or more errors is fractional, the fractions may add up. Each fraction of prejudice, however, is contingent on an undergirding finding of error. It is in this regard that many promiscuous claims of cumulative error go awry.

In a case involving two or more errors, the thing that may cumulate is the prejudicial effect of two or more actual findings of error, not the effect of two or more mere allegations of error. There must first be error before there is any prejudicial effect of that error to be measured. With respect to each of the appellant's contentions of individual error, we have held that there was no error. Self-evidently, there was no prejudicial impact to cumulate. Eight times nothing is still nothing. Gilliam v. State, 331 Md. 651, 685-86, 629 A.2d 685 (1993) (“This is more a case of the mathematical law that 20 times nothing is still nothing.”); Colvin-el v. State, 332 Md. 144, 180, 630 A.2d 725 (1993) (where claims individually have no merit, there is no merit to the argument that the “whole exceeds the sum of its parts.”).

The prejudice to a defendant that is the result of non-error is legitimate. Everything a prosecutor does is intended to prejudice the defendant. The ultimate prejudice is the conviction. It is, by definition, the prosecutor's job thus to prejudice the defendant, so long as it can be done without committing error. There is, therefore, no such thing as a cumulative prejudicial impact of non-error.

Conclusion

All six of the appellant's convictions for first-degree murder are hereby affirmed. Jack the Ripper has never yet been brought to justice. The Beltway snipers have been. JUDGMENTS AFFIRMED; COSTS TO BE PAID BY APPELLANT.