                     COURT OF APPEALS OF VIRGINIA


Present: Judge Annunziata, Senior Judges Willis and Bray*
Argued at Alexandria, Virginia


MICHAEL WAYNE HASH
                                         MEMORANDUM OPINION ** BY
v.   Record No. 1290-01-4                 JUDGE RICHARD S. BRAY
                                            SEPTEMBER 3, 2002
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF CULPEPER COUNTY
                      John R. Cullen, Judge

          Michael T. Hemenway; Richard A. Davis, for
          appellant.

          Susan M. Harris, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.


     A jury convicted Michael Wayne Hash (defendant) of capital

murder in violation of Code § 18.2-31.   On appeal, defendant

complains the trial court erroneously (1) failed to instruct on

the Commonwealth's burden to prove beyond a reasonable doubt he

was the "triggerman" or "principal in the first degree," (2)

instructed the jury on the definition of "[w]illful, deliberate,

and premeditated," (3) refused to investigate allegations of

juror misconduct, and (4) overruled his motion to "set aside the


     * Senior Judges Willis and Bray participated in the hearing
and decision of this case prior to the effective date of their
retirement on August 31, 2002 and thereafter by designation as a
senior judge pursuant to Code § 17.1-401.

     ** Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
verdict" as a result of "prosecutorial misconduct."        Defendant

also challenges the sufficiency of the evidence to support the

conviction.   Finding no reversible error, we affirm the trial

court.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.    In accordance with well established

principles, we review the evidence in the light most favorable to

the party prevailing below, the Commonwealth in this instance.

Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721

(1988).

                             I.    BACKGROUND

     Prior to trial, defendant moved for discovery pursuant to

Rule 3A:11, seeking disclosure by the Commonwealth of "all

information of an exculpatory, mitigating or otherwise favorable

nature" and "all evidence affecting the credibility of any

prosecution witness, including . . . any plea negotiations,

promise, or threat (direct or implied) made to any potential

prosecution witness by or on behalf of the Commonwealth or any

officer or agency thereof."       Responding, the Commonwealth provided

statements of potential witnesses to police and other materials

and declared an "open file policy" to defendant's counsel.

     Trial commenced on February 6, 2001.       The Commonwealth's

evidence established that Thelma B. Scroggins (victim) had been

                              - 2 -
murdered on July 13, 1996, killed by "[f]our gunshot wounds,"

"three" to "the left side of [her] face" and one "to the back of

the head."   The medical examiner described the wounds and noted

"slight burning directly around the skin surface" indicated

contact with the "[gun] barrel" at "close range."   A "firearms

examiner" determined the four bullets recovered from the victim's

body were ".22 caliber," "fired from a firearm having a barrel

rifled with four lands and grooves," "most likely . . . a rifle."

     Testifying in behalf of the Commonwealth, Alesia Shelton

(Shelton), defendant's cousin, recalled a discussion on the

evening of July 13, 1996, between defendant and Jason Kloby

(Kloby), a codefendant, during which the two referenced the "mail

lady" and agreed "she should have never messed with them," and

they should "make her suffer," "pour[] hot water on her," or "tie

her up," and "do it tonight."   Four weeks after the murder,

Shelton witnessed another conversation between defendant and Kloby

"at the church across the street from [the victim's] house."

Kloby then admitted "he shot [the victim]," "handed the gun to

[defendant] and . . . [defendant] shot her."   Reacting to Kloby's

admissions, defendant "nodded his head" and, "laughing"

"sarcastic[ally]," said, "Yes-yeah."

     Eric Weakley, also a codefendant, testified that at "about

eight or nine o'clock" on the evening of the murder, he

accompanied defendant and Kloby to the victim's house.    Defendant

                             - 3 -
"knocked" at the door and, when she answered, defendant "asked if

he could have a cup of sugar."   The victim responded, "yeah,

sure," "turned around," and defendant entered the home and "hit

her broad side around th[e] side of the ear" with "[h]is fist,"

causing her to fall "to the ground."    Kloby and defendant then

"kick[ed] . . . and hit" the victim in the "face," "stomach" and

"ribs," and Weakley and defendant "carried [her] back to her

bedroom" and "propped her up" "on a door jamb."   After deciding

"[w]ho was going to shoot [the victim] first," defendant shot her

"[t]wice in the ["left"] side of the head," and Kloby "fired a

shot" "[a]round the same place."    When the victim's "leg moved

like . . . a convulsion or some type of spasm," Kloby "fired one

shot in the back of the head," "the last shot."   Defendant then

"got in the car and left," and Weakley and Kloby fled in the

victim's truck.

     Paul Carter (Carter) recounted "[p]robably two or three"

conversations with defendant, while the two shared a "cell block"

at the Charlottesville Regional Jail, when defendant admitted he

and "two other dudes" "shot" an "old lady twice" with a ".22

[caliber]" firearm and "took [her] vehicle."   Defendant explained

to Carter his "cousin" was "trying to tell on him," and, although

"the other two dudes" "already gave statements on him," he "could

[not] get convicted without a gun."



                            - 4 -
     Denying involvement in the murder, defendant claimed he was

with his "best friend," William Blithe, Jr., at the time of the

offense.    Defendant admitted a "waving acquaintance" with the

victim, his "mail lady," and that he, Weakley and Kloby had, on

several occasions, discussed robbing "somebody" "in the area" "who

wasn't going to put up much of a fight," and "assumed" they were

"talking about an old lady."    However, defendant insisted he

didn't "want to have anything to do with it."

     Defendant objected to jury instructions proposed by the

Commonwealth that embraced first-degree and second-degree murder,

arguing "the Commonwealth's evidence . . . is that he pulled the

trigger twice," and "[t]he defense evidence is that he wasn't

there and . . . didn't do it."     Thus, "no theory . . . of the

case . . . would support an instruction on a lesser charge."

Instead, defendant successfully urged the court to submit the

issue to the jury only on "capital murder or not guilty."

     Instructions submitted to the jury, without objection,

included:

                           Instruction No. 3

                 The defendant is charged with the crime
            of capital murder. The Commonwealth must
            prove beyond a reasonable doubt each of the
            following elements of that crime:

                 (1) That defendant killed Thelma B.
                 Scroggins; and

                 (2) That the killing was willful,
                 deliberate and premeditated; and
                               - 5 -
               (3) That the killing occurred during
               the commission of robbery; . . . .

                         Instruction No. 4

               "Willful, deliberate, and premeditated"
          means a specific intent to attempt to kill,
          adopted at some time before an attempted
          killing, but which need not exist for any
          particular length of time.

(Emphasis added).

     Following conviction by the jury, together with a recommended

sentence of life imprisonment, defendant filed a motion to set

aside the verdict.   In support of the motion, he presented

evidence of an indictment charging Eric Weakley with

"second-degree murder" and, over the Commonwealth's objection, the

affidavits of four jurors affirming, in pertinent part, that

          [d]uring the jury deliberations and in
          reaching the guilty verdict, the members of
          the jury did not all agree that the
          defendant, Michael W. Hash, was the actual
          shooter of the victim, Thelma Scroggins.

     During a subsequent hearing on the motion, defendant also

contended the Commonwealth was required to prove him the

"triggerman" or the "principal in the first degree to the murder."

Thus, although such instruction was not offered either by

defendant or the Commonwealth, defendant argued the court had "an

affirmative duty" to admonish the jury on a "principle of law

. . . vital to a[n] [accused]."   Turning to the Eric Weakley

indictment, defendant maintained the prosecutor failed to disclose

"an understanding, albeit not necessarily reduced to writing,"

                             - 6 -
with Weakley, that Weakley would receive "a reduced charge or some

other significant benefit in exchange for his agreement to testify

. . . against the defendant."    With respect to the affidavits,

defendant asserted that the evidence "clearly" established the

jury "did not agree unanimously . . . he shot the victim" and

"either misunderstood" or "chose to disregard" the instructions,

resulting in an "injustice."

     Countering, the Commonwealth reminded the court that the

competing "theor[ies] of the case" were "either the defendant shot

and killed [the victim] or he wasn't there," not "that he was

there, but he didn't pull the trigger or . . . there but . . . did

not participate in the killing."       Thus, "there was no evidence to

support a requirement for a triggerman rule . . . instruction."

While acknowledging that Weakley was indicted for second-degree

murder, not capital murder, the Commonwealth contended the

decision "to bring before a jury a lower charge" against Weakley

followed trial of defendant and was not previously "contemplated,"

rendering disclosure unnecessary.

     At the conclusion of the hearing, the court refused to summon

the jury and inquire further into the verdict, finding "the

alleged action by the jurors occurred within the confines of the

jury room" and declined to set aside the verdict for the remaining

reasons assigned by defendant.    Defendant appeals to this Court.



                               - 7 -
               II.   FAILURE TO GIVE JURY INSTRUCTION

     Defendant first contends the trial court had "an

affirmative duty" to instruct the jury on the Commonwealth's

burden to prove beyond a reasonable doubt he was the

"triggerman" or "principal in the first degree to the murder."

We disagree.

          Under the . . . "triggerman" rule, only the
          actual perpetrator of a crime delineated in
          Code § 18.2-31 may be convicted of capital
          murder and subjected to the penalty of
          execution, except in the case of murder for
          hire. One who is present, aiding and
          abetting the actual murder, but who does not
          actually fire the fatal shot, is a principal
          in the second degree and may be convicted of
          no greater offense than first-degree murder.

Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d 267, 280

(1986) (citations omitted); Tice v. Commonwealth, 38 Va. App.

332, 339, 563 S.E.2d 412, 416 (2002).    However, "[t]here may be

more than one principal in the first degree."    Hancock v.

Commonwealth, 12 Va. App. 774, 781, 407 S.E.2d 301, 305.      Thus,

the Supreme Court of Virginia "adhere[s] 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 v.

Commonwealth, 241 Va. 482, 495, 404 S.E.2d 227, 235 (1991);

Tice, 38 Va. App. at 339, 563 S.E.2d at 416.    See also Coppola

v. Commonwealth, 220 Va. 243, 257 S.E.2d 797 (1979) (holding an


                             - 8 -
accused "jointly participat[ing] in [a] fatal beating" subject

to conviction and punishment for capital murder).

     Here, defendant's argument in support of a "triggerman"

instruction is "premised upon the theory that the killing was

accomplished by a sole perpetrator."     Strickler, 241 Va. at 495,

404 S.E.2d at 235.   Viewed accordingly, the record provides no

support for the instruction.    The Commonwealth's evidence, if

believed, proved defendant and Kloby acted jointly to murder the

victim, each firing two shots directly into her head.       Defendant

denied involvement in the offense, relying upon an alibi

defense.   Under such circumstances, "Instruction No. 3" properly

informed the jury on the issues before the court, without

implicating the extraneous triggerman principle.

                     III.   ERRONEOUS INSTRUCTION

     Defendant next contends the trial court erroneously

instructed the jury on the meaning of "[w]illful, deliberate and

premeditated."

     "Instruction No. 4" defined "[w]illful, deliberate and

premeditated" as "a specific intent to attempt to kill, adopted at

some time before an attempted killing . . . ."      (Emphasis added).

Defendant did not object to the instruction at trial but

complains on appeal the jury was "misinformed and mislead" on

"an essential element" of the offense, "result[ing] in a

miscarriage of justice" that merits appellant relief.     The

                              - 9 -
Commonwealth concedes the instruction erroneously referenced "an

attempted killing" but asserts Rule 5A:18 as a procedural bar to

our consideration of the issue.

     Rule 5A:18 provides, in relevant part:

             [n]o ruling of the trial court . . . will be
             considered as a basis for reversal unless
             the objection was stated together with the
             grounds therefor at the time of the ruling,
             except for good cause shown or to enable the
             Court of Appeals to attain the ends of
             justice.

"'Under Rule 5A:18 we do not notice the trial errors for which

no timely objection was made except in extraordinary situations

when necessary to enable us to attain the ends of justice.'"

Phoung v. Commonwealth, 15 Va. App. 457, 463, 424 S.E.2d 712,

716 (1992) (citation omitted).

                  Whether we apply the bar of Rule 5A:18
             or invoke the ends of justice exception, we
             must evaluate the nature and effect of the
             error to determine whether a clear
             miscarriage of justice occurred. We must
             determine whether the error clearly had an
             effect upon the outcome of the case. The
             error must involve substantial rights.

Brown v. Commonwealth, 8 Va. App. 126, 131, 380 S.E.2d 8, 11

(1989).   "We have held that a clear miscarriage of justice has

occurred when the error is 'clear, substantial and material.'"

Phoung, 15 Va. App. at 464, 424 S.E.2d at 716 (citation

omitted).    "An error that is not important enough to affect the

outcome of the trial is not 'material' but, rather is harmless

error."     Id. at 465, 424 S.E.2d at 716.
                              - 10 -
     Here, defendant did not dispute the victim was murdered but

simply denied involvement in the crime.     The erroneous

instruction did not relate to a finding that defendant killed

her but, rather, to the issue of whether defendant committed the

offense with the requisite intent.     Eric Weakley, a participant

in the crime, testified defendant shot the victim "[t]wice in

the ["left"] side of the head," evidence corroborated by

witnesses Shelton and Carter.    Thus, the evidence clearly

established the specific intent requisite to capital murder.

Under such circumstances, the erroneous jury clearly did not

"affect the outcome of the trial" and, therefore, was not

material and provided no support for the "ends of justice"

exception to Rule 5A:18.

                     IV.   REFUSAL TO INVESTIGATE

     Defendant contends the court erroneously failed to conduct an

evidentiary hearing to investigate the jury's deliberations and

related verdict.   Relying upon the four affidavits, defendant

maintains the jury did not agree he was the "triggerman" or

"principal in the first degree to the murder" and, therefore,

"either misunderstood the instructions of the court," "chose to

disregard [the] instructions," or were "misled or misinformed by

the instructions."




                             - 11 -
     In Jenkins v. Commonwealth, 244 Va. 445, 423 S.E.2d 360

(1992), the Supreme Court of Virginia affirmed a trial court's

refusal to make a similar inquiry of jurors, reasoning that

            "Virginia has been more careful than most
            states to protect the inviolability and
            secrecy of jurors' deliberations. We have
            adhered strictly to the general rule that
            the testimony of jurors should not be
            received to impeach their verdict,
            especially on the ground of their own
            misconduct." "Generally, we have limited
            findings of prejudicial juror misconduct to
            activities of jurors that occur outside the
            jury room."

Id. at 460, 423 S.E.2d at 370 (citations omitted) (emphasis

added).    Thus, "[w]hether a trial court should examine jurors is a

matter addressed to the court's sound discretion, and, absent an

abuse of discretion, its decision will not be disturbed on

appeal."    Bradshaw v. Commonwealth, 228 Va. 484, 491, 323 S.E.2d

567, 571 (1984) (citation omitted).

     Here, the matters subject of the affidavits clearly occurred

"within the confines of the jury room."   Jenkins, 244 Va. at 460,

423 S.E.2d at 370.    Defendant has not alleged extraneous evidence

or other improprieties tainted the deliberations, and the

affidavits suggest no such misconduct either by the four jurors or

others.    Accordingly, the court properly declined to summon the

jury and pursue further inquiry.




                             - 12 -
                       V.   EXCULPATORY EVIDENCE

     Defendant maintains the prosecutor wrongfully failed to

disclose plea agreements between the Commonwealth and Shelton,

Eric Weakley and Carter and, further, a statement of Felton

Weakley, Eric Weakley's brother, to police.        Defendant alleges

"prosecutorial misconduct" requires reversal of the conviction.

We disagree.

     "The suppression of exculpatory evidence upon request

violates due process where the evidence is material either to

guilt or punishment . . . ."     MacKenzie v. Commonwealth, 8

Va. App. 236, 243, 380 S.E.2d 173, 177 (1989) (citations

omitted).   However,

            failure to disclose [such] evidence requires
            reversal only if the evidence was
            "material," and evidence is "material" only
            if there is a reasonable probability that
            had the evidence been [timely] disclosed to
            the defense, the result of the proceeding
            would have been different. A reasonable
            probability is a probability sufficient to
            undermine confidence in the outcome.

Id. at 244, 380 S.E.2d at 177 (first emphasis added).

"[S]peculation and . . . 'conjecture'" will not support

reasonable probability.     Id. at 245, 380 S.E.2d at 178.

     Guided by such principles, we address defendant's arguments

seriatim.




                              - 13 -
                         A.   PLEA AGREEMENTS

     At trial, Shelton, Eric Weakley and Carter testified no

offers, promises, or understandings with the Commonwealth existed

with respect to their testimony against defendant.   Although

codefendant Weakley later entered into an agreement with the

Commonwealth resulting in a guilty plea to a lesser offense, the

attendant prosecutorial decision followed trial and conviction of

defendant.   Thus, defendant's claim is grounded in "speculation"

and "conjecture" and unworthy of consideration.

                    B.   FELTON WEAKLEY STATEMENT

     For the first time on appeal, defendant complains that

disclosure of a "report" memorializing a September 27, 2000

interview with Felton Weakley, provided to defendant on "the

last day [he] could conceivably use it for post trial motions,"

resulted in "extreme[] prejudic[e]" to him.     Defendant contends

the report, which "provided exculpatory information and could

reasonably lead to additional exculpatory information," was

untimely filed and of no utility in his defense.     Assuming,

without deciding, that the delayed disclosure constituted

"misconduct," the material is not "exculpatory" in nature.

     The report recounts a statement by Felton Weakley that Eric

Weakley "occasionally" overnighted at his apartment.    However,

Felton Weakley "did not know if Eric came . . . the night of the

murder" and "could not remember a time when Eric Weakley may have

                              - 14 -
arrived with blood on him or appearing . . . nervous or

frightened."    Thus, the document neither provides evidence that

tends to exonerate defendant nor suggests the existence of such

evidence.    Defendant, therefore, failed to prove a reasonable

probability that, had the report been disclosed, the result of

the proceeding would have been different.     See id.

                   VI.   SUFFICIENCY OF THE EVIDENCE

     Finally, defendant challenges the sufficiency of the

evidence to support the conviction, complaining "the conclusions

of the fact finder on issues of witness credibility should be

reversed because the testimony of the Commonwealth's witnesses

was in . . . direct conflict" and, "in the case of Eric

Weakley," was "inherently incredible."     He further contends the

juror affidavits make "it . . . painfully clear that the fact

finders did not find the Commonwealth's witnessess' testimony

credible."     Again, we disagree.

     In reviewing the sufficiency of the evidence, we consider

the record "in the light most favorable to the Commonwealth,

giving it all reasonable inferences fairly deducible therefrom."

Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859,

866 (1998) (citation omitted).

                  [T]he fact finder is not required to
             accept entirely either the Commonwealth's or
             the defendant's account of the facts.
             Similarly, the fact finder is not required
             to believe all aspects of a defendant's
             statement or testimony; the judge or jury
                              - 15 -
             may reject that which it finds implausible,
             but accept other parts which it finds
             believable.

Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24

(1993) (citations omitted).    Thus, "[t]he conclusions of the

fact finder on issues of witness credibility 'may only be

disturbed on appeal if this Court finds that [the witness']

. . . testimony was "inherently incredible, or so contrary to

human experience as to render it unworthy of belief."'"       Moyer

v. Commonwealth, 33 Va. App. 8, 28, 531 S.E.2d 580, 590 (2000)

(en banc) (citations omitted).       The judgment of the trial court

will not be disturbed unless plainly wrong or unsupported by the

evidence.     See Code § 8.01-680.

       Viewed accordingly, Eric Weakley's testimony established

that, he, defendant and Kloby entered the victim's residence, and

defendant shot the victim "[t]wice in the ["left"] side of the

head."    Weakley's recollection of the offense was corroborated in

substantial detail by the testimony of Shelton, Carter and other

evidence.    The fact finder heard and considered the testimony,

including evidence that discredited the Commonwealth's

witnesses.    When considered with the entire record, we are

unable to find such evidence either "inherently incredible" or

"unworthy of belief."     Moyer, 33 Va. App. at 28, 531 S.E.2d at

590.     Further, although defendant denied participating in the

murder, the evidence proved otherwise, and the jury was entitled

                              - 16 -
to disbelieve him and conclude that "he lied to conceal his

guilt."   Dunbar v. Commonwealth, 29 Va. App. 387, 394, 512

S.E.2d 823, 827 (1999).

     Accordingly, we affirm the conviction.

                                                        Affirmed.




                            - 17 -
