                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Bumgardner
Argued at Richmond, Virginia


LARRY JUNIOR CHEATHAM
                                            MEMORANDUM OPINION * BY
v.   Record No. 0917-00-2                JUDGE JERE M. H. WILLIS, JR.
                                               AUGUST 28, 2001
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF PRINCE EDWARD COUNTY
                    Richard S. Blanton, Judge

          Khalil A. Latif for appellant.

          Shelly R. James, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     On appeal from his jury trial conviction of first-degree

murder, in violation of Code § 18.2-32, Larry Junior Cheatham

contends that the trial court erred in refusing to set aside the

verdict because the evidence was insufficient.     For the

following reasons, we affirm the judgment of the trial court.

                            I.   BACKGROUND

     On appeal, we view the evidence in the light most favorable

to the Commonwealth, granting to it all reasonable inferences

fairly deducible therefrom.      See Martin v. Commonwealth, 4 Va.

App. 438, 443, 358 S.E.2d 415, 418 (1987).     The judgment of a



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
trial court will be disturbed only if plainly wrong or without

evidence to support it.     See id.

     On May 13, 1998, eighty-two-year-old Edith Delaney was

found dead in the basement of her home.   Her dress was pulled

up, and her underwear was down around her ankles.   Dr. Edward I.

Gordon, Prince Edward County Medical Examiner, testified that

the time of death was approximately 11:00 a.m.    He further

testified that a clear fluid, not identified as seminal fluid,

was present on Ms. Delaney's anal and vaginal areas.

     Dr. Charles J. Lee, an Assistant Medical Examiner for the

Commonwealth of Virginia, testified that Ms. Delaney died as a

result of a single stab wound to her back from a double-edged

knife and that her body displayed no defensive injuries.     He

further testified that her vaginal area displayed redness that

appeared to result from rubbing and not from forced penetration.

     Several witnesses testified that they saw Cheatham in Ms.

Delaney's neighborhood on the morning of the murder.   One

witness testified that Cheatham wore a "bright fluorescent

almost Day-Glow T-shirt."

     Officer Edward S. Gates testified that on May 16, 1998,

with Cheatham's written permission, the police searched his

motel room.   They recovered a yellow T-shirt containing blood

stains.   A forensic scientist testified that these blood stains

were consistent with Ms. Delaney's DNA profile.



                                 - 2 -
       During the search of his motel room, Cheatham agreed to

answer a few questions.   Officer Gates testified that Cheatham

denied knowing Ms. Delaney.   However, the police had recovered

two checks written by her to him for yard work he had done for

her.   Officer Gates stated that Cheatham later admitted that he

knew Ms. Delaney, that he had done yard work for her, and that

he had spoken with her several times on the day she died.

       Officer Gates testified that when asked whether he had ever

been inside Ms. Delaney's house, Cheatham replied that he had

never been in her house or her basement.   Officer Gates

testified that he had never asked Cheatham about the basement.

When asked whether he had killed Ms. Delaney, Cheatham replied

that "he ha[d] never even cut anybody."    Officer Gates then

asked Cheatham how he knew Ms. Delaney had been stabbed.

Cheatham replied that he did not know that.

       Lieutenant Wade Stimpson testified that on June 9, 1998, he

and Officer Anthony Q. Ellington arrested Cheatham and advised

him of his Miranda rights.    Lieutenant Stimpson testified that

as they were transporting Cheatham to jail, "tears started

flowing down [Cheatham's] cheek," and he said, "[He] did it."

Lieutenant Stimpson stated Cheatham told the officers:

            [H]e had gone there on that date to cut her
            grass hopefully in order to be able to get
            thirty dollars to buy a lawnmower she had in
            her basement. Upon arriving there someone
            else was already cutting the grass so he
            walked around the neighborhood for a while.
            After that person left he came back, told

                                - 3 -
          [Ms. Delaney] he was there to purchase the
          lawnmower. He followed her around to the
          back. He attempted to buy the lawnmower for
          twenty dollars. She wouldn't sell it to
          him. While she was bent over the lawnmower
          he got a knife and he stabbed her.

Lieutenant Stimpson testified that he told Cheatham that Ms.

Delaney's underwear had been pulled down to her ankles.

Cheatham denied that he had sexual intercourse with her, but

said he inserted his finger inside her and masturbated.

Lieutenant Stimpson testified that Cheatham said he disposed of

the knife he used to stab Ms. Delaney.

     Officer Ellington witnessed Cheatham's confession and gave

essentially the same account as Lieutenant Stimpson.

     Cheatham presented evidence that he had been diagnosed as

mildly mentally retarded, is legally blind, and has a partial

hearing loss.

     Cheatham denied that he killed Ms. Delaney.   He testified

that he stopped by her house on May 13, 1998, but left when he

saw someone else mowing her yard.   He stated that he came back,

noticed the front door open, heard "rumbling" in the basement,

went to the back of the house to investigate the sound, and he

discovered Ms. Delaney dead.   He testified that he did not call

the police because he was scared.   He denied that he confessed

to the police.




                               - 4 -
     During cross-examination, Cheatham admitted that he had

lied to the police and had given them an account different from

his testimony.

                      II.   SUFFICIENCY OF THE EVIDENCE

     Cheatham contends that the evidence was insufficient to

prove that he was the criminal agent or that he had the

requisite malice, intent, and premeditation to be guilty of

first-degree murder.

                             A.   CRIMINAL AGENCY

     Cheatham first contends that the evidence was insufficient

to identify him as the perpetrator of the crime.          We disagree.

     Based upon Cheatham's confession, coupled with the

corroborating evidence of his presence near Ms. Delaney's house

at the time of the murder, his conflicting statements to the

police, some of which indicated knowledge of facts only the

killer could have known, and the presence of Ms. Delaney's blood

on Cheatham's T-shirt, the jury could properly conclude beyond a

reasonable doubt that Cheatham killed Ms. Delaney.

                 B.    MALICE, INTENT, AND PREMEDITATION

     Cheatham next contends that the Commonwealth failed to

prove that he acted with the malice, intent, and premeditation

required for first-degree murder.        However, he failed to

preserve this argument at trial and cannot now raise it on

appeal.   See Rule 5A:18.



                                     - 5 -
     At the close of the Commonwealth's evidence, Cheatham moved

to strike the capital murder indictment.   He argued that the

evidence did not support the homicide-in-commission-of-a-felony

element of capital murder and that the evidence did not support

the object sexual penetration charge.   The motion was denied.

     Cheatham's motion to strike at the conclusion of all the

evidence and his closing argument raised only the issue of

criminal agency, not whether intent, premeditation, and malice

had been proved.   His motion to set aside the jury's verdict was

based solely on issues raised in the pre-sentence report.

Therefore, Cheatham is barred from presenting any argument

related to any element of first-degree murder except criminal

agency.   The record provides no reason to invoke the good cause

or ends of justice exceptions to Rule 5A:18.

     We affirm Cheatham's conviction of first-degree murder.

                                                        Affirmed.




                               - 6 -
Benton, J., dissenting.

     The rule is well established in Virginia that a conviction

for a criminal offense may not rest only on an uncorroborated

extrajudicial confession.

                 "Extrajudicial confessions of the
            accused are competent evidence tending to
            prove the corpus delicti. But the corpus
            delicti cannot be established by such a
            confession uncorroborated by other evidence.
            In other words, a conviction in a criminal
            case is not warranted by the extrajudicial
            confession of the accused alone. The
            confession must be corroborated in a
            material and substantial manner by evidence
            aliunde of the corpus delicti."

Phillips v. Commonwealth, 202 Va. 207, 210-11, 116 S.E.2d 282,

284 (1960) (citation omitted).    Establishing the corpus delicti

"involves the proof of two distinct propositions:   first, that

the act was done; and secondly, that it was done by the person

charged."    Nicholas v. Commonwealth, 91 Va. 741, 750, 21 S.E.

364, 367 (1895).    See also Claxton v. City of Lynchburg, 15 Va.

App. 152, 154, 421 S.E.2d 891, 893 (1992) (noting that "[t]he

term corpus delicti, meaning 'the body of a crime,' refers to

'the objective proof or substantial fact that a crime has been

committed' . . . [and] 'ordinarily includes two elements:   the

act and the criminal agency of the act'").   Thus, even when

"there is no doubt that the homicide was proved . . . [, the

definition of corpus delicti requires that we be] concerned with

[corroboration of] the defendant's agency in the crime."    Lucas



                                 - 7 -
v. Commonwealth, 201 Va. 599, 603, 112 S.E.2d 915, 918-19

(1960).

     When the evidence establishes only a suspicion or a

probability of guilt, it is insufficient as a matter of law to

support a conviction.   Tarpley v. Commonwealth, 261 Va. 251,

257, 542 S.E.2d 761, 764 (2001).

               Fundamental principles applicable here
          should be reviewed. To justify conviction
          of a crime, it is insufficient to create a
          suspicion or probability of guilt. Rather,
          the burden is upon the Commonwealth to prove
          every essential element of the offense
          beyond a reasonable doubt. "The evidence
          must exclude every reasonable hypothesis of
          innocence and be consistent only with the
          guilt of the accused."

Moore v. Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740

(1997) (citations omitted).

     Four weeks after Edith Delaney was killed, the police

arrested Larry Junior Cheatham, a mentally retarded man, and

charged him with murder while committing a robbery.   During the

interval between Delaney's death and Cheatham's arrest, the

police questioned Cheatham at least six times and made no audio

or video record of any of those interviews, some of which lasted

45 minutes.   In most instances the details of those interviews

were established only by the testimony of police officers from

their memories.   Although the officers testified that Cheatham

denied in all those pre-arrest interviews that he killed

Delaney, the record contains only a summary of Cheatham's


                               - 8 -
responses during those interviews and does not contain, except

in one instance, the questions he was asked.   Thus, the record

fails to disclose what information about Delaney's death the

police conveyed to Cheatham during those interviews.   The

conviction in this case is based upon the police recitation of

statements they said Cheatham orally gave after they arrested

him and were delivering him to jail and upon circumstantial

evidence that fails to corroborate that Cheatham was the killer.

     At trial, Officers Stimpson and Ellington testified that

they arrested Cheatham on the charge of capital murder arising

from the death and robbery of Delaney.   During the arrest, the

officers brandished their weapons and told Cheatham "the

punishment could be the electric chair."   After a magistrate

denied Cheatham bail, the officers drove Cheatham to the

regional jail.   After they passed Cheatham's residence and

approached the jail, Cheatham began to cry.    The officers

testified that Officer Ellington told Cheatham "if there is

something you want to tell us, you need to tell us now."      Both

officers testified that Cheatham then said "I did it."   They

testified that "each time he would make a statement [they asked

him additional questions] in order to clarify what he was

talking about to make sure there was no misunderstanding."

Officer Stimpson testified as follows:

          For example, I asked him to give me the
          whole story about what had occurred. He
          stated he had gone there on that date to cut

                               - 9 -
          her grass hopefully in order to be able to
          get thirty dollars to buy a lawnmower she
          had in the basement. Upon arriving there
          someone else was already cutting the grass
          so he walked around the neighborhood for a
          while. After that person left he came back,
          told [Delaney] he was there to purchase the
          lawnmower. He followed her around to the
          back. He attempted to buy the lawnmower for
          twenty dollars. She wouldn't sell it to
          him. While she was bent over the lawnmower
          he got a knife and he stabbed her.

     Both officers testified that Cheatham initially did not say

anything in his narrative about other events.   For example,

Cheatham said nothing about a robbery and said nothing about

Delaney's clothing.   Both officers testified that Officer

Stimpson first raised the issue of sexual assault.   He "told

. . . Cheatham that when [they] discovered . . . Delaney's body

her underpants had been pulled down and were only remaining on

one ankle on her leg."   When Cheatham was unresponsive to

Officer Stimpson's inquiry about what then happened, Officer

Stimpson "asked if he did have sex with her."   When asked about

his testimony at the preliminary hearing, Officer Stimpson

testified as follows:

          Q. Let me read the question again: When
          you said did you have sex with her, did he
          say no and then stop and then you ask
          another question?

               What was your response?

          A. I said, no. He said -- I said, I don't
          recall. It's a possibility I said, well,
          why were her pants down if you didn't have
          sex with her? And he may have said in



                              - 10 -
           response to that that he stuck his finger in
           her.

           Q. May have said? So on this day you're
           testifying he may have said that he had put
           his finger in her?

           A. I hadn't thought about this part of it
           at that point in time until it came up. At
           that point in time I said he may have said,
           but today I'm saying after proper
           recollection I know he said it.

     The officers did not seek to obtain a recording of

Cheatham's statements and did not ask him to sign a statement.

Instead, they later prepared a summary of his statements.

Officer Stimpson used a narrative report to describe his

questioning of Cheatham and typed the report to "clean it up a

little."   Cheatham was later charged with murder while in the

commission of sexual object penetration.   At trial, Officer

Stimpson testified from his memory to other statements he said

Cheatham made that day.   Officer Ellington also testified that

he "made an overall summary" and "did not write the questions

down."   He testified that he "just wrote a summary of basically

what Mr. Cheatham had said."

     The Commonwealth's other evidence proved that Delaney bled

to death from an internal hemorrhage caused by a stab wound

through her back that severed her aorta.   The assistant medical

examiner testified that Delaney could have been stabbed while

the assailant was standing in front of her or to her side, and

not just from behind.   He also testified that bruising on her



                               - 11 -
chin indicates she could have been held or struck on her chin by

the assailant.    He testified that from the physical evidence

there was no way to know whether she was bending or standing

when she was stabbed.

     Although the police officer testified that Cheatham said he

"stuck his finger in [Delaney]," no evidence confirmed that

event occurred.   The assistant medical examiner testified that

penetration was "unlikely because the microscopic [examination]

showed no acute injury in that area."   He also testified that

there were no lacerations or contusions to Delaney's genitalia

and that the "3/8 inch pink discoloration" on her genitalia,

which was referenced in the autopsy report, "was a chronic

rubbing type of an injury rather than an acute injury."   In

addition, the evidence does not establish the identity of the

"clear fluid that was not natural" which was found at Delaney's

"anal area and the perivaginal area or outside the vaginal

area."   Although a certificate of analysis, "indicated the

presence of blood on the anal swab and on the underpants," those

circumstances were not explained.   Thus, the evidence does not

eliminate the possibility the fluid was applied by Delaney

earlier that day before her death to alleviate personal

discomfort.

     Near Delaney's body, the police found a comb with hairs

from a person not of her race.    A photograph showed it partially

beneath her dress on the floor.   A forensic scientist who tested

                               - 12 -
the hairs on that comb for the police testified that the hairs

were not consistent with Cheatham's hair.   He also testified

that he recovered "a characteristically Caucasian body hair"

from Delaney's underpants.    That hair could not have been

Cheatham's.   Although the police recovered partial fingerprints

from the basement, they were "unidentifiable."   Indeed, the

evidence found on or near Delaney and in the house did not

connect Cheatham to the killing and tended to indicate the

presence of another person.

     The police did not recover the instrument used to stab

Delaney.   The medical examiner's report notes that Delaney's

wound "is a 3/4 inch stab wound, the inferior edge is sharp and

there are two sharp ends superiorly," and it identifies the

instrument causing the wound as a "suspect knife."   The

assistant medical examiner testified that the wound could also

indicate that the instrument was consistent with "a double-sided

well sharpened knife."   No evidence proved Cheatham ever owned

an instrument that would make a wound of this shape.   Put

simply, the Commonwealth's own evidence raises the hypothesis,

which was not disproved, that another person killed Delaney.

     None of the evidence tends to corroborate the statements

the police officers attributed to Cheatham orally identifying

himself as the killer.   In Phillips, the Supreme Court

overturned a conviction because insufficient evidence other than

a confession supported the conviction.   The Court reiterated the

                               - 13 -
well established "'rule in criminal cases . . . that the

coincidence of circumstances tending to indicate guilt, however

strong and numerous they may be, avails nothing unless the

corpus delicti . . . be first established.'"    202 Va. at 211-12,

116 S.E.2d at 285 (citations omitted).    The Court ruled that a

conviction cannot stand when the corroborating evidence "is just

as consistent with non-commission of the offense as it is with

its commission."   Id. at 212, 116 S.E.2d at 285.

     It is not sufficient that the evidence merely establish

that a crime was committed because "'[t]he corpus delicti

consists not merely of an objective crime, but of the

defendant's agency in the crime.'"     Lucas, 201 Va. at 603, 112

S.E.2d at 918 (citation omitted).    An obvious purpose of the

rule is to avoid punishing a person for a crime that person

never, in fact, committed.   Jefferson v. Commonwealth, 6 Va.

App. 421, 424, 369 S.E.2d 212, 214 (1988) (citation omitted).

These principles have heightened importance here because "[t]he

concern in a case involving a defendant of subnormal

intelligence is one of suggestibility."     Jurek v. Estelle, 623

F.2d 929, 938 (5th Cir. 1980).

               We have learned the lesson of history,
          ancient and modern, that a system of
          criminal law enforcement which comes to
          depend on the "confession" will, in the long
          run, be less reliable and more subject to
          abuses than a system which depends on
          extrinsic evidence independently secured
          through skillful investigation.


                              - 14 -
Escobedo v. Illinois, 378 U.S. 478, 488-90 (1964) (footnotes

omitted).   Reliable research supports the conclusion that

mentally retarded persons process information in a way "that

even when a mentally retarded suspect's responses appear normal,

his answers may not be reliable."    State v. Moore, 364 S.E.2d

648, 655 (N.C. 1988).   "Persons who are mentally retarded are

described as having 'significantly sub-average general

intellectual functioning existing concurrently with deficits in

adaptive behavior and manifested during the developmental

period.'"   Penry v. Lynaugh, 492 U.S. 302, 308 n.1 (1989)

(citation omitted).

     Cheatham does not dispute that he went into Delaney's

basement the day she was killed.    He testified that he spoke

with Delaney earlier that morning when he was walking about town

seeking to find odd jobs.   He had previously cut her grass for

pay and went to her residence that day seeking to cut her grass.

The evidence also proved he sought to do casual labor, such as

cutting grass, for two of Delaney's neighbors that same morning.

Cheatham testified that after he first spoke to Delaney, he

returned to ask about purchasing her old lawnmower, which the

evidence proved was in her basement near her newer mower.    He

testified that when he called to her from her front screened

door he heard a "rumbling" in the basement, which he said

"sounded like somebody was making a lot of noise."   He went



                              - 15 -
around to the basement door and entered the basement to look for

Delaney.

     The assistant medical examiner testified that because

Delaney suffered from an internal hemorrhage after being

stabbed, she would not have died instantaneously.    He said "it

would have taken a few seconds, maybe a couple of minutes [for

Delaney] to bleed that much" and die.    The evidence does not

disprove that Cheatham heard Delaney moving in the throes of

dying.

     Cheatham testified that when he went into the basement,

Delaney was on the floor.   Cheatham, whose eyesight is so

deficient that he is legally blind, testified that after he saw

Delaney, "I [knelt] down.   Some blood or something was running

down in the floor, and I [knelt] behind her to see was she

breathing."   As mentioned by the majority, two "tiny" stains of

Delaney's blood were found on a T-shirt recovered from

Cheatham's home.   These stains, however, serve to corroborate

the defense's theory of the case because the presence of the

stains are consistent with Cheatham's testimony that he kneeled

near her body, detected she was not breathing, saw blood, and

then left.    He said he did not contact the police because he had

not been in that situation before and was afraid.

     Cheatham also testified that although he knew the

magistrate "said [he] didn't have no bond," he did not

understand the consequence of that.     He thought he was going

                               - 16 -
home.    Cheatham, who had never before been arrested, became

upset when the police officers drove him past his residence

while going to jail.    He began to cry.   He testified that

Officer Stimpson began roughly talking to him and demanding

answers.    Cheatham said he did not remember their questions and

did not remember making the responses they attributed to him.

Cheatham said he "won't answering any questions . . . just

shaking, nodding [his] head."

        Cheatham denied killing Delaney and, except for the police

officer's recitation of Cheatham's statements while crying, the

record establishes Cheatham has consistently denied killing her.

Indeed, when he was asked by Officer Gates during a pre-arrest

interview whether he killed Delaney, Cheatham responded "that he

has never even cut anybody."     (Emphasis added).    That statement

is only assertion with an idiomatic intensive that Cheatham had

not ever injured anyone with a weapon.

        The evidence proved that Cheatham, who was thirty-five

years old when these events occurred, has not been convicted of

any criminal offense.    Cheatham's mental retardation is well

documented.    His cognitive disability was identified "as early

as first grade."    He has an IQ that is in the lowest first,

second, or third percentile of the population.       Cheatham's IQ

records indicate his lowest ability was in "social

comprehension; in other words, the ability to understand social

situations."    He is weakest in verbal skills, which the record

                                - 17 -
establishes are "skills . . . that . . . [involve] the ability

to understand verbal information, remember it and use it,

vocabulary, knowledge about the world, social comprehension,

knowing what to do in social situations."

     The record clearly established that the anxiety of arrest

and immediate realization of incarceration produced responses

from Cheatham that caused him to cry.   Cheatham had no

familiarity with the criminal justice system.   Although the

officers testified that Cheatham verbally gave inculpatory

statements in this condition of distress, no evidence

corroborates that he killed Delaney.    Moreover, this is not a

case in which it can be said that Cheatham "had confessed to the

crime not in a general manner, but as one who was familiar with

the minutiae of its execution."   Washington v. Murray, 4 F.3d

1285, 1292 (4th Cir. 1993).   As the Supreme Court noted in

Burrows v. Commonwealth, 224 Va. 317, 295 S.E.2d 893 (1982):

               Based on the evidence as a whole, the
          Commonwealth did not prove beyond a
          reasonable doubt [Cheatham] was the criminal
          agent. The most that can be stated is that
          the evidence created a suspicion [he] was
          the perpetrator. "Suspicion, however, no
          matter how strong, is insufficient to
          sustain a criminal conviction."

Id. at 319-20, 295 S.E.2d at 895 (citation omitted).

     For these reasons, I would reverse the conviction.




                              - 18 -
