174
Ginsburg, J., dissenting
After the in-chambers conference ended, the guilt phase of the trial began. Three days later, at 4 o'clock on Thursday afternoon, December 5, the jury returned a verdict finding Gray guilty of the capital murder of McClelland. Proceedings were adjourned for the day, with the penalty phase to begin at 9:30 the next morning.
That evening, the prosecutor informed defense counsel that, in addition to Gray's statements, he planned to introduce further evidence relating to the Sorrell murders. That further evidence included: (1) the testimony of Detective Slezak, the police officer who investigated the Sorrell murders, regarding his observations at the crime scene shortly after the bodies of Lisa and Shanta were discovered; (2) graphic photographs of the crime scene, depicting the interior of the partially burned car, Lisa's body in the front seat, and Shanta's body in the trunk; (3) the testimony of Doctor Presswalla, the state medical examiner who conducted the autopsies of the victims, regarding the causes of their deaths; (4) graphic photographs of the victims at the time of the autopsies, including a photograph depicting the back of Lisa's head, shaved to reveal six gunshot wounds; and (5) Doctor Presswalla's autopsy reports. See App. 29-37, 40-47.
This additional evidence, advanced by the prosecutor on the eve of the penalty phase, suggested that the Sorrell murders were carried out in a manner "strikingly similar" to the murder of McClelland. Gray v. Commonwealth, 233 Va. 313, 347, 356 S. E. 2d 157, 176 (1987). Like Lisa Sorrell, McClelland had been shot six times in the head; his car, too, had been partially burned. As defense counsel later explained, "the similarities between the McClelland murder and the Sorrell murder would be obvious to anyone sitting in a jury box." App. 141.
On Friday morning, December 6, before trial proceedings resumed, defense counsel informed the court of Thursday evening's developments. Gray's lawyers told the court they had learned for the first time the previous evening that the
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