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JOHNSON v. COMMONWEALTH

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JOHNSON

v.

COMMONWEALTH


April 21, 2000

Record Nos. 992525 and 992526

SHERMAINE A. JOHNSON

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF
PETERSBURG

James F. D’Alton, Jr., Judge

Present: Carrico, C.J., Lacy, Hassell, Keenan,
Koontz, and Kinser, JJ., and Stephenson, Senior Justice


OPINION BY JUSTICE BARBARA MILANO KEENAN

In these appeals, we review the capital murder
conviction and death sentence imposed on Shermaine A. Johnson,
along with his conviction for rape.

I. PROCEEDINGS

On January 6, 1997, petitions were issued in
the Juvenile and Domestic Relations District Court of the City of
Petersburg (juvenile court) against Johnson, charging him with
the July 11, 1994 rape and capital murder of Hope Denise Hall.
Johnson was 16 years old at the time these offenses were
committed. Notice of the juvenile court proceedings was provided
to Johnson’s guardian and grandmother, Virginia Dancy. After a
hearing, the juvenile court found probable cause to believe that
Johnson had committed the crimes alleged and entered an order
certifying the charges to the grand jury.

On April 17, 1997, the grand jury of the
Circuit Court of the City of Petersburg (the circuit court)
indicted Johnson on charges of capital murder in the commission
of rape or attempted rape in violation of Code
? 18.2-31(5), and rape in violation of Code
? 18.2-61. Johnson filed numerous pretrial motions and
requests for continuances during the ensuing 14 months. On June
17, 1998, Johnson filed a motion to dismiss the indictments,
arguing that the circuit court had not complied with the
requirements of former Code ? 16.1-296(B). This statute
required the circuit court, within a "reasonable time"
after receiving the case from the juvenile court, to review the
records and enter an order either remanding the case to the
juvenile court or advising the Commonwealth’s Attorney that he
may seek indictments.

The circuit court entered an order dated June
29, 1998, stating that it had reviewed Johnson’s records from the
juvenile court and, upon that review, authorized the
Commonwealth’s Attorney to seek indictments. The grand jury
returned new indictments on July 2, 1998, and the circuit court
later granted the Commonwealth’s motion to enter a nolle prosequi
on the original indictments. The circuit court also entered an
order stating that "[a]ll papers, documents, orders,
motions, responses, letters, and arguments" contained in the
court files of the original indictments were "transferred
and incorporated" in the files of the new indictments.

In the first stage of a bifurcated jury trial
conducted under Code ? 19.2-264.3, the jury convicted
Johnson of the offenses charged in the new indictments. In the
penalty phase of the trial, the jury fixed his punishment for
capital murder at death, based on findings of both "future
dangerousness" and "vileness."

In a post-trial motion, Johnson sought
dismissal of the indictments on the ground that the Commonwealth
had failed to provide notice of the transfer proceedings in
juvenile court to Johnson’s father, in violation of former Code
?? 16.1-263 and -264. The trial court denied the motion,
finding that "proper notice as contemplated by the
statute" had been given. After considering the pre-sentence
report and victim impact statements, the trial court sentenced
Johnson to life imprisonment on the rape charge and, in
accordance with the jury verdict, to death on the capital murder
charge.

We consolidated the automatic review of
Johnson’s death sentence with his appeal of the capital murder
conviction. Code ? 17.1-313(F). We also certified Johnson’s
appeal of his rape conviction from the Court of Appeals and
consolidated that appeal with his capital murder appeal. Code
? 17.1-409.

II. THE EVIDENCE

We will state the evidence presented at trial
in the light most favorable to the Commonwealth, the prevailing
party below. Walker v. Commonwealth, 258 Va. 54, 60, 515
S.E.2d 565, 568 (1999), cert. denied, ___ U.S. ___, 120
S.Ct. 955 (2000); Jackson v. Commonwealth, 255 Va. 625,
632, 499 S.E.2d 538, 543 (1998), cert. denied, 525 U.S.
1067 (1999); Roach v. Commonwealth, 251 Va. 324, 329, 468
S.E.2d 98, 101, cert. denied, 519 U.S. 951, (1996). On
July 11, 1994, the nude body of 22-year-old Hope Denise Hall was
found on the bedroom floor of her apartment in Petersburg. She
had been stabbed 15 times, including fatal stab wounds to her
back, chest, and neck.

Hall’s body had abrasions on the nose and left
cheek. The body also had a broken, ragged fingernail that Dr.
Deborah Kay, an assistant chief medical examiner for the
Commonwealth, testified was a "defense-type" injury.
Dr. Kay also testified that death "is not generally
immediate" with wounds such as those suffered by Hall, and
that she initially would have remained conscious after the wounds
were inflicted.

The police found blood on two "steak"
knives, which were lying on a counter in Hall’s kitchen. Blood
was also found on a piece of a broken drinking glass located on
the kitchen counter, and there was additional blood on the
kitchen counter and floor. The police recovered from the kitchen
floor an earring, five strands of hair, and a partial shoe print
containing some blood. The matching earring was found in Hall’s
bedroom.

The outside door to Hall’s apartment was
locked, and the police found a partial fingerprint and smears of
blood on the inside panel of that door, which was located near
the kitchen. The police recovered two additional
"steak" knives, one on Hall’s bed and one in her
bathroom. The telephone wires in her bedroom had been pulled out
of the wall.

A smear of blood and blood splatters were
located on the bedroom wall near the victim’s body. The police
found additional blood on the bedroom floor, dresser, sheets, and
bedspread. There was no sign of forced entry into the apartment.

DNA Evidence

Jean M. Hamilton, a forensic scientist employed
by the Virginia Division of Forensic Science, testified that she
performed DNA testing using the "polymerase chain
reaction," or PCR, technique on evidence recovered from the
crime scene and a blood sample and vaginal swabs collected from
Hall’s body during an autopsy. Hamilton concluded that the DNA
from the blood found on the knife on the bed, the knives in the
kitchen, the kitchen countertop, and the front door all matched
the DNA from Hall’s blood sample.

Hamilton determined that the DNA from Hall’s
blood did not match the DNA from the blood on the handle of the
knife found in the bathroom. However, the blood from the broken
glass in the kitchen and one bloodstain on the bedspread
contained a mixture of Hall’s DNA and DNA from the same person
whose blood was on the handle of the knife found in the bathroom.

Hamilton testified that DNA from sperm detected
in two semen stains on the sheets and DNA from another stain on
the bedspread came from the same person as the DNA from the blood
on the bathroom knife. However, the DNA from the sperm detected
in the vaginal swab taken from Hall’s body came from more than
one person.

Early in the investigation, an acquaintance of
Hall, Leroy Quick, III, who had been observed knocking on the
door of Hall’s apartment on the night of the murder, was
suspected of committing these crimes. Hamilton analyzed the DNA
from a sample of Quick’s blood. Based on her analysis, Hamilton
eliminated Quick as a possible source of the DNA found on all the
evidence she had analyzed.

Hamilton then performed a more discriminating
type of DNA analysis, known as "restriction fragment length
polymorphism" or RFLP testing, on the DNA from two semen
stains found on the sheet and the bedspread. After obtaining the
DNA profile from those two stains, Hamilton searched the DNA data
bank maintained by the Division of Forensic Science to determine
if the DNA profile obtained from the crime scene evidence matched
any DNA profile on record in the DNA data bank. Hamilton did not
find a matching DNA profile at the time of her initial search in
March 1996, at which time there were about 5,000 samples in the
DNA data bank.

In August 1996, Hamilton performed a second
search of the DNA data bank after about 2,500 more samples had
been added to the bank. Hamilton’s second search revealed that
one DNA profile contained in the data bank was consistent with
the DNA profile that she had obtained from the crime scene
evidence. This matching DNA profile belonged to the defendant,
Shermaine A. Johnson, who was incarcerated in the Southampton
Correctional Institute.

Hamilton performed DNA testing, using the PCR
technique, on another sample of Johnson’s blood that was in the
custody of the City of Franklin Police Department. Hamilton
concluded that the DNA profile of Johnson, who is an
African-American, matched the DNA found on the handle of the
knife retrieved from the bathroom, some of the semen stains on
the sheets, the semen stain on the bedspread, and some of the
sperm in the vaginal swab. Based on the results of this PCR test,
Hamilton estimated that this particular DNA profile would occur
in about one out of 980 people in the Black population, or about
one-tenth of 1% of that population.

Sergeant Thomas Patrick of the Petersburg
Bureau of Police obtained a search warrant, which he executed on
Johnson at the Southampton Correctional Institute. Pursuant to
the search warrant, Patrick obtained another blood sample from
Johnson, as well as head and pubic hair samples. George Li, a
supervising forensic scientist with the Virginia Division of
Forensic Science, conducted RFLP testing on DNA from the blood
sample obtained from Johnson and compared it to the DNA found at
the crime scene. Li concluded that Johnson’s DNA matched the DNA
from semen stains on the sheet and bedspread. Li estimated that
the probability of randomly selecting an individual other than
Johnson with the same DNA profile as that found in the evidence
taken from the crime scene was about one in one million in the
Black population.

Li also conducted PCR testing on the DNA from
the blood sample obtained from Johnson, and compared the results
with the DNA on the knife found in the bathroom and semen stains
found on the sheets and bedspread. Based on the less
discriminating PCR technique, Li estimated that the probability
of a person other than Johnson having a DNA profile matching the
DNA from the crime scene evidence was one in 980 in the Black
population.

Johnson’s Statements to
Police

After Hamilton made the initial match of the
DNA taken from the crime scene with Johnson’s DNA profile
obtained from the data bank, three police officers from the
Petersburg Police Bureau interviewed Johnson at the Southampton
Correctional Institute in August 1996. Upon signing a written
waiver of his Miranda rights, Johnson told the police officers
that he had been in Petersburg "quite a bit" during the
summer of 1994 and had spent "a lot" of time at the
apartment complex where Hall lived. His cousin and another
acquaintance lived in other buildings in the same complex.
Johnson stated that on the night Hall was murdered, he
encountered her in a hallway and that they went inside her
apartment and began kissing on her living room couch. Johnson
stated that an African-American man with a light complexion who
had a "fade" haircut knocked on Hall’s door, entered
the apartment, and began arguing with Johnson. According to
Johnson, this man threatened him with a knife and pushed him out
of the apartment.

Johnson denied being present in any room in
Hall’s apartment other than the living room and denied being cut
or injured in any way while in the apartment. On further
questioning, Johnson stated that he had not met Hall in the
outside hallway, but had knocked on her door.

Other Crimes Evidence

Prior to trial, the Commonwealth gave Johnson
notice that it intended to present evidence during the guilt
phase of the trial that Johnson had raped 21-year-old Lavonda
Scott on July 2, 1994, and 15-year-old Janel Chambliss on August
31, 1994. Over Johnson’s objection, the trial court permitted
both Scott and Chambliss to testify about these crimes, after
finding that there were "numerous" similarities between
the crimes committed against Scott and Chambliss and the pending
charges against Johnson.

The trial court cited the following factors in
its decision to permit the testimony of Scott and Chambliss. All
three victims were young African-American women. Scott and
Chambliss both knew Johnson and allowed him to enter their homes.
There was no sign of forced entry into Hall’s apartment. Johnson
assaulted both Scott and Chambliss after requesting a glass of
water. He then seized knives from their kitchens. There was a
broken drinking glass in Hall’s kitchen, and the knives used to
kill Hall came from her kitchen.

Johnson forced both Scott and Chambliss to
remove all their clothing before raping them. Hall’s body was
totally nude and her clothes were found near her body. Johnson
threatened both Scott and Chambliss, stating that he would kill
them if they did not follow his directions. When Chambliss
resisted and struggled with Johnson, he stabbed her. There was
evidence of a struggle in Hall’s apartment and Hall was fatally
stabbed. All three crimes occurred within a 90-day period in
1994.
[1]

Aggravating Factors

During the penalty phase of the trial, the
Commonwealth presented evidence that in addition to the rapes of
Scott, Chambliss, and Hall, Johnson committed two other rapes in
1994. The two victims of these other crimes testified at the
penalty phase. The evidence showed that in January 1994, Johnson
raped a 13-year-old girl as she was walking down a flight of
stairs inside her apartment building in New Jersey. Johnson
grabbed her from behind, held a "steak" knife to her
throat, demanded that she remove her clothes, and raped her. In
June 1994, Johnson raped a 15-year-old girl in a friend’s
apartment in New York City. Johnson stopped the girl on the
street and lured her to his friend’s apartment, where he
threatened her with a knife, forced her to remove her clothing,
and raped her.

III. ISSUES PREVIOUSLY DECIDED

On appeal, Johnson raises certain arguments
that we have resolved in previous decisions. Since we find no
reason to modify our previously expressed views, we reaffirm our
earlier holdings and reject the following arguments:

A. Imposition of the death penalty constitutes
cruel and unusual punishment in violation of the United States
Constitution and the Constitution of Virginia. Rejected in Yarbrough
v. Commonwealth
, 258 Va. 347, 360 n.2, 519 S.E.2d 602, 607
n.2 (1999); Jackson, 255 Va. at 635, 499 S.E.2d at 545; Goins
v. Commonwealth
, 251 Va. 442, 453, 470 S.E.2d 114, 122, cert.
denied
, 519 U.S. 887 (1996).

B. Virginia’s death penalty statutes fail to
provide meaningful guidance to the jury. Rejected in Yarbrough,
258 Va. at 360 n.2, 519 S.E.2d at 607 n.2; Cherrix v.
Commonwealth
, 257 Va. 292, 299, 513 S.E.2d 642, 647, cert.
denied
, ___ U.S. ___, 120 S.Ct. 177 (1999); Roach, 251
Va. at 336, 468 S.E.2d at 105; Breard v. Commonwealth, 248
Va. 68, 74, 445 S.E.2d 670, 674-75, cert. denied, 513 U.S.
971 (1994).

C. The "vileness" factor is
unconstitutionally vague and overbroad. Rejected in Walker,
258 Va. at 61, 515 S.E.2d at 569; Cherrix, 257 Va. at 299,
513 S.E.2d at 647; Beck v. Commonwealth, 253 Va. 373, 387,
484 S.E.2d 898, 907, cert. denied, 522 U.S. 1018 (1997).

D. The "future dangerousness" factor
is unconstitutionally vague and unconstitutionally permits the
consideration of unadjudicated conduct. Rejected in Walker,
258 Va. at 61, 515 S.E.2d at 569; Cherrix, 257 Va. at 299,
513 S.E.2d at 647; Clagett v. Commonwealth, 252 Va. 79,
86, 472 S.E.2d 263, 267 (1996), cert. denied, 519 U.S.
1122 (1997).

E. Virginia’s penalty phase instructions do not
adequately instruct the jury concerning mitigation. Rejected in Yarbrough,
258 Va. at 360 n.2, 519 S.E.2d at 607 n.2; Cherrix, 257
Va. at 299, 513 S.E.2d at 647; Swann v. Commonwealth, 247
Va. 222, 228, 441 S.E.2d 195, 200, cert. denied, 513 U.S.
889 (1994).

F. The post-verdict review of the death
sentence by the trial court does not satisfy constitutional
standards because the trial court may consider hearsay evidence
contained in a pre-sentence report and is not required to set
aside the death sentence upon a showing of good cause. Rejected
in Walker, 258 Va. at 61, 515 S.E.2d at 569; Cherrix,
257 Va. at 299, 513 S.E.2d at 647; Breard, 248 Va. at 76,
445 S.E.2d at 675.

IV. PRETRIAL MATTERS

Juvenile Transfer Issues

Johnson argues that the circuit court erred in
denying his motions to dismiss both sets of indictments. He first
asserts that the original indictments were void because the
circuit court failed to review the transfer record from the
juvenile court under former Code ? 16.1-296(B) before the
original indictments were obtained. He also argues that the
original indictments were void under Commonwealth v. Baker,
258 Va. 1, 516 S.E.2d 219 (1999)(per curiam), because the
Commonwealth had failed to notify Johnson’s father of the
transfer hearing in the juvenile court. We disagree with
Johnson’s arguments.

The requirement of former Code
? 16.1-296(B), that the circuit court review the transfer
documents from the juvenile court before allowing the
Commonwealth to seek indictments, was inapplicable to Johnson’s
case. This review was not required because Johnson previously had
been tried and convicted as an adult in the Circuit Court of
Southampton County for the rape of Lavonda Scott. Code
? 16.1-271 provides in relevant part:

Any juvenile who is tried and convicted in a
circuit court under the provisions of this article shall be
considered and treated as an adult in any criminal proceeding
resulting from any future alleged criminal acts.
. . . 

All procedures and dispositions applicable to
adults charged with such a criminal offense shall apply in such
cases. . . . The provisions of this article
regarding a transfer hearing shall not be applicable to such
juveniles.

The rape of Lavonda Scott occurred on July 2 or
3, 1994, and the present offenses took place days later on July
11, 1994. Thus, the rape and capital murder of Hope Hall were
"future alleged criminal acts" within the meaning of
Code ? 16.1-271, and Johnson was not entitled to the
protection that the transfer statutes afford a juvenile offender
who has not previously been tried and convicted as an adult in a
circuit court. Accordingly, since Johnson’s prior conviction as
an adult eliminated the requirement of former Code
? 16.1-296(B) that the circuit court review the transfer
proceedings, his claim that the review was not performed in a
timely manner has no merit.

The provisions of Code ? 16.1-271 also
invalidate Johnson’s claim that the indictments were void because
his father was not provided notice of the transfer proceedings in
the juvenile court. Under the plain language of Code
? 16.1-271, a juvenile who has been convicted as an adult
in a circuit court is not entitled to a transfer hearing in the
juvenile court. Since Johnson had no right to a transfer hearing,
the notice requirements pertaining to such a hearing are
inapplicable and do not provide a basis for challenging either
set of indictments returned in this case.

Johnson next contends that the Commonwealth’s
failure to try the charges against him within five months of his
preliminary hearing violated his right to a speedy trial under
Code ? 19.2-243. He asserts that the 16-month interval
between the preliminary hearing and trial is attributable solely
to the Commonwealth’s failure to seek a timely review of the
transfer documents from the juvenile court.

The record demonstrates that there is no merit
to Johnson’s claim. Johnson’s preliminary hearing and resulting
probable cause determination occurred in the juvenile court on
March 20, 1997. Johnson either requested or agreed to every
continuance granted by the circuit court under the original
indictments, and Johnson conceded this fact in argument before
the circuit court. When the time attributable to those
continuances is subtracted from the total time this case was
pending in the circuit court before trial, the record shows that
Johnson was tried within the time restrictions imposed by Code
? 19.2-243.
[2] See Townes
v. Commonwealth
, 234 Va. 307, 323, 362 S.E.2d 650, 659 (1987)
cert. denied, 485 U.S. 971 (1988); Robinson v.
Commonwealth
, 28 Va. App. 148, 155-56, 502 S.E.2d 704, 708
(1998); Watkins v. Commonwealth, 26 Va. App. 335, 347-48,
494 S.E.2d 859, 865 (1998).

Johnson also argues that the trial court erred
in incorporating in the present case, which was tried under the
new indictments, all pleadings filed and rulings made under the
original indictments. He contends that the circuit court lacked
jurisdiction to take this action after the original indictments
had been terminated by nolle prosequi, asserting that a new
preliminary hearing in the juvenile court was required. Johnson
also contends that because the original indictments were
terminated by nolle prosequi, all pretrial proceedings conducted
under the original indictments were effectively nullified. Thus,
he argues that there were no rulings or pleadings before the
trial court that could have been incorporated in the prosecution
on the new indictments. We disagree.

As discussed above, since Johnson previously
had been tried and convicted as an adult for rape, the
Commonwealth was not required to institute new proceedings in the
juvenile court. Code ? 16.1-271. Instead, the Commonwealth
was entitled to consider and treat Johnson as an adult and obtain
new indictments in the circuit court. See Code
? 19.2-217; Payne v. Warden of Powhatan Correctional
Center
, 223 Va. 180, 183, 285 S.E.2d 886, 887-88 (1982).

The new indictments were identical to the old
indictments and, thus, presented exactly the same issues that
Johnson raised before the circuit court in the original
indictments. The nolle prosequi of the original
indictments did not invalidate the trial court’s rulings in that
case, but simply terminated the original prosecution and
discharged Johnson from liability on those indictments. See
Miller v. Commonwealth, 217 Va. 929, 935, 234 S.E.2d 269,
273 (1977), cert. denied, 434 U.S. 1016 (1978). The
circuit court was not required to rehear the same matters and
reissue the same rulings simply because the Commonwealth
mistakenly had concluded that the original indictments may have
been invalid. Thus, we hold that the circuit court’s decision to
incorporate the prior rulings in the present case was a proper
exercise of the court’s discretion.
[3]

Motions to Suppress Fruits of
Search Warrant

Johnson argues that the 32-day interval between
the time Hamilton first matched DNA from the crime scene with
Johnson’s DNA profile in the DNA data bank, and the time the
search warrant was executed, constituted an "unreasonable
delay." He contends that the evidence obtained as a result
of the search warrant, namely, the blood sample, hair samples,
and his statement to the police, should have been suppressed
based on this "unreasonable delay." We disagree.

There is no fixed standard or formula
establishing a maximum allowable interval between the date of
events recited in an affidavit and the date of a search warrant. United
States v. McCall
, 740 F.2d 1331, 1336 (4th Cir. 1984); Huff
v. Commonwealth
, 213 Va. 710, 715, 194 S.E.2d 690, 695
(1973); Perez v. Commonwealth, 25 Va. App. 137, 142-43,
486 S.E.2d 578, 581 (1997). Instead, a warrant will be tested for
"staleness" by considering whether the facts alleged in
the warrant provided probable cause to believe, at the time the
search actually was conducted, that the search conducted pursuant
to the warrant would lead to the discovery of evidence of
criminal activity. McCall, 740 F.2d at 1336; Perez,
25 Va. App. at 142, 486 S.E.2d at 581; see United
States v. Akram
, 165 F.3d 452, 456 (6th Cir. 1999); Huff,
213 Va. at 715-16, 194 S.E.2d at 695.

Here, Johnson’s contention of
"staleness" fails because the DNA from the crime scene
evidence and his DNA profile from the DNA data bank, which were
"matched" by Hamilton and formed the basis for issuance
of the warrant, were not subject to change over the 32-day period
at issue. The blood and hair samples taken from Johnson pursuant
to the search warrant also were not subject to change over this
time period. See State v. Baker, 956 S.W.2d 8, 13
(Tenn. Crim. App. 1997)(holding that samples of person’s blood,
saliva, and hair cannot become "stale.") Thus, we hold
that the search warrant was valid and the trial court did not err
in refusing to suppress the evidence at issue. Since the search
warrant was valid, we also conclude that there is no merit in
Johnson’s allegation that the statement he made to the police
should have been suppressed as a fruit of the search conducted
pursuant to that warrant.

Constitutionality of
Virginia’s DNA Data Bank

Johnson argues that the statutes providing for
the Commonwealth’s DNA data bank, Code ?? 19.2-310.2
through -310.7 (DNA statutes), which include a requirement that
all convicted felons submit blood samples for DNA testing,
violate various constitutional rights. He contends that these
statutes violate the Fourth Amendment guarantee against
unreasonable searches and seizures, the Fifth Amendment
protection against self-incrimination, and the Eighth Amendment
guarantee against cruel and unusual punishment. He further
contends that the DNA statutes violate his constitutional right
of due process. Johnson also relies on the parallel provisions of
the Constitution of Virginia that articulate these constitutional
rights. Finally, Johnson contends that these statutes are
arbitrary and unreliable, fail to establish meaningful
restrictions on the seizure and dissemination of DNA material,
and constitute an "undue delegation of [legislative] powers." We disagree with Johnson’s arguments.

The DNA statutes do not deny a criminal
defendant any constitutional rights. Although we have not
considered previously the issues Johnson raises, the United
States Court of Appeals for the Fourth Circuit has addressed the
constitutionality of Virginia’s DNA statutes in two cases. In Jones
v. Murray
, 962 F.2d 302 (4th Cir.) cert. denied, 506
U.S. 977 (1992), the Court concluded that the procurement of a
blood sample for DNA analysis from a convicted felon under Code
? 19.2-310.2 does not violate the Fourth Amendment
guarantee against unreasonable searches and seizures. The Court
held that "in the case of convicted felons who are in the
custody of the Commonwealth, we find that the minor intrusion
caused by the taking of a blood sample is outweighed by
Virginia’s interest . . . in determining inmates’
‘identification characteristics specific to the person’ for
improved law enforcement." Id. at 307 (quoting Code
? 19.2-310.2); see also Ewell v. Murray,
11 F.3d 482, 484 (4th Cir. 1993), cert. denied, 511 U.S.
1111 (1994). We agree with this conclusion and hold that it is
equally applicable to the guarantee against unreasonable searches
and seizures set forth in Article I, Section 10 of the
Constitution of Virginia.

We also conclude that the Fifth Amendment right
against self-incrimination, and the parallel right afforded by
Article I, Section 8 of the Constitution of Virginia, are not
violated by the DNA statutes. The taking of a blood sample does
not implicate any rights against self-incrimination, because such
an act is not testimonial or communicative in nature. Schmerber
v. California
, 384 U.S. 757, 761 (1966); Shumate v.
Commonwealth
, 207 Va. 877, 880, 153 S.E.2d 243, 245 (1967); Lawrence
v. Bluford-Brown
, 1 Va. App. 202, 204, 336 S.E.2d 899, 900-01
(1985). Thus, the withdrawal of blood from a convicted felon to
provide a DNA sample for inclusion in the DNA data bank in
accordance with Code ? 19.2-310.2 does not violate the
felon’s constitutional protection against self-incrimination.

Next, we conclude that the DNA statutes do not
violate the Eighth Amendment guarantee against cruel and unusual
punishment, and the parallel right secured by Article 1, Section
9 of the Constitution of Virginia. The DNA statutes are not penal
in nature. Ewell, 11 F.3d at 485; Jones, 962 F.2d
at 309. Therefore, there is no merit to Johnson’s contention that
the above rights are "subverted" by the requirement
that a DNA blood sample be taken from persons convicted of a
felony.

We also disagree with Johnson’s argument that
the DNA statutes violate federal constitutional rights of due
process and the due process provisions of Article I, Section 11
of the Constitution of Virginia. In support of his argument,
Johnson states merely that the DNA statutes do not "require
that notice be given to individuals whose DNA is seized."
This argument has no merit because the enactment of the statutes
themselves in 1990 provided notice that all persons convicted of
a felony will be required to give a blood sample for DNA
analysis.

We also reject Johnson’s arguments that the DNA
statutes are arbitrary and unreliable, fail to establish
meaningful restrictions on the seizure and dissemination of DNA
material, and constitute an "undue delegation of
[legislative] powers." The statutes apply uniformly to every
convicted felon, and the use of the information collected from
each felon is restricted to law enforcement purposes. Code
?? 19.2-310.2, -310.5, and -310.6. Further, since Johnson
does not explain why the statutes are an "undue
delegation" of powers, we do not address this argument
because we are unable to discern its substance.

Batson Challenge

During jury selection, the prosecutor used all
five of her peremptory strikes to remove African-Americans from
the venire. Johnson asserted a challenge to the panel under Batson
v. Kentucky
, 476 U.S. 79 (1986). After noting that the jury
panel, which included two alternate jurors, was comprised of ten
African-Americans, one Hispanic, and three Caucasians, the trial
court ruled that Johnson had failed to establish a prima facie
case of racial exclusion under Batson. The trial court
stated: "It’s clear the jury is predominantly black
. . . . There was no questioning in the voir dire
or anything to suggest any racial inferences. So I do not find
that a prima facie case has been made."

Johnson argues on appeal that the trial court
violated the holding in Batson in failing to require the
prosecutor to state race-neutral reasons for each of her
peremptory strikes. In response, the Commonwealth contends that
the trial court did not err under Batson because the
circumstances surrounding the prosecutor’s use of her peremptory
strikes did not raise an inference that these strikes were made
to exclude potential jurors based on their race. We agree with
the Commonwealth.

In Batson, the Supreme Court stated the
requirements for establishing a prima facie case of purposeful
discrimination in the selection of a petit jury. The Court held
that to establish such a prima facie case, the defendant first
must show that he is a member of a cognizable racial group
. . . and that the prosecutor has exercised peremptory
challenges to remove from the venire members of the defendant’s
race. Second, the defendant is entitled to rely on the fact, as
to which there can be no dispute, that peremptory challenges
constitute a jury selection practice that permits "those to
discriminate who are of a mind to discriminate."
. . . Finally, the defendant must show that these facts
and any other relevant circumstances raise an inference that the
prosecutor used that practice to exclude the veniremen from the
petit jury on account of their race.

Batson, 476 U.S. at 96. The trial
court’s determination whether discrimination has occurred in the
selection of a jury is entitled to great deference. Id. at
98 n.21.

The defendant has the burden of producing a
record that supports a prima facie case of purposeful
discrimination. United States v. Escobar-De Jesus, 187
F.3d 148, 164 (1st Cir. 1999), cert. denied, ___U.S.___,
68 U.S.L.W. 3534 (U.S. Feb.22, 2000)(No. 99-7685); Atkins v.
Commonwealth
, 257 Va. 160, 174, 510 S.E.2d 445, 454 (1999); Kasi
v. Commonwealth
, 256 Va. 407, 421, 508 S.E.2d 57, 65 (1998), cert.
denied
, ___ U.S. ___, 119 S.Ct. 2399 (1999); see Batson,
476 U.S. at 96-97. The fact that the prosecution has excluded
African-Americans by using peremptory strikes does not itself
establish such a prima facie case under Batson. See
476 U.S. at 96-97; United States v. Sangineto-Miranda, 859
F. 2d 1501, 1521 (6th Cir. 1988). A defendant also must identify
facts and circumstances that raise an inference that potential
jurors were excluded based on their race. Batson, 476 U.S.
at 96; Escobar-De Jesus, 187 F.3d at 164.

The composition of the jury that ultimately is
sworn is a relevant consideration in reviewing a Batson
challenge. Sangineto-Miranda, 859 F.2d at 1521-22; see
Escobar-DeJesus, 187 F.3d at 165. The jury selected in
this case was comprised overwhelmingly of African-Americans. We
also observe that none of the prosecutor’s questions or
statements to the venire indicated that the prosecutor was of a
mind to discriminate in her exercise of peremptory strikes.

In addition, no other facts or circumstances in
the present record support an inference of purposeful
discrimination by the prosecutor in the jury selection process.
Therefore, we conclude that the record supports the trial court’s
ruling that Johnson failed to make a prima facie showing of
purposeful discrimination under Batson. Since Johnson
failed to establish such a prima facie case, the prosecutor was
not required to provide a racially neutral explanation for her
exercise of peremptory strikes.

Appointment of Co-Counsel

Johnson next argues that the trial court erred
in denying his request for the appointment of co-counsel with
specialized knowledge relating to DNA evidence to assist his
court-appointed attorney in addressing issues presented by the
Commonwealth’s use of such evidence. Johnson contends that he was
denied effective assistance of counsel because his
court-appointed attorney, by his own admission, did not have the
expertise necessary to evaluate the DNA evidence linking Johnson
to these crimes.

We find no merit in these arguments. Johnson
withdrew his request for appointment of co-counsel prior to trial
and instead asked the trial court to appoint a DNA expert, which
request was granted.
[4] Therefore, by
withdrawing his request for co-counsel in the trial court,
Johnson has waived his claim that the trial court erred in
denying his request for co-counsel with specialized knowledge
relating to the use of DNA evidence. Further, to the extent that
Johnson has raised a claim of ineffective assistance of counsel
in this argument, we do not consider that contention in this
appeal. See Roach, 251 Va. at 335 n.4, 468 S.E.2d
at 105 n.4; Hall v. Commonwealth, 30 Va. App. 74, 82, 515
S.E.2d 343, 347 (1999); 1990 Va. Acts of Assembly, ch. 74
(repealing Code ? 19.2-317.1, which provided for direct
appeal of certain ineffective assistance of counsel claims); see
also Walker v. Mitchell, 224 Va. 568, 570, 299
S.E.2d 698, 699 (1983).

Photographs of Victim

On this subject, Johnson has assigned error on
the following basis: "The trial court erred in denying
[d]efendant’s motion to exclude certain photographs of the
victim." However, Johnson has not addressed this assignment
of error in his brief, except with regard to "buttons"
displaying a photograph of the victim worn by certain members of
the public while in the courtroom. Therefore, our consideration
of this assignment of error will be limited to the buttons worn
in the courtroom, and we will not consider the trial court’s
admission of photographs of the victim into evidence during
trial. See Rules 5:27, 5:17(c)(4).

Johnson contends that Hall’s family and friends
were allowed to wear "campaign-size" buttons displaying
Hall’s photograph in the courtroom. Johnson asserts that although
the jurors were not seated close enough to the audience to
identify Hall’s image on the buttons, they could tell that the
buttons "ha[d] something to do with" Hall and, thus,
the jurors were improperly influenced.

We find no merit in this argument. There is
nothing in the record to support Johnson’s contention that any of
the jurors saw buttons displaying Hall’s photograph. When Johnson
raised his objection to the buttons at the beginning of trial,
the court ruled that the spectators would not be permitted to
display the buttons in any manner that would allow the jurors to
see them. The court also ruled that anyone wearing a button was
required to refrain from any contact with any of the jurors.
After the trial court stated these rulings, Johnson did not
object to the adequacy of the trial court’s response or later
argue that any spectator had violated the trial court’s
instructions. Thus, Johnson has waived any objection to the trial
court’s rulings in response to his request that the buttons
"not be displayed." Rule 5:25.

V. GUILT PHASE ISSUES

Other Crimes Evidence

Johnson argues that the trial court erred in
admitting the testimony of Lavonda Scott and Janel Chambliss
during the guilt phase of his trial. He asserts that the facts in
the cases of Scott, Chambliss, and Hall contain no common aspects
that are so distinctive or idiosyncratic that they would permit
an inference that the same person committed all three crimes. We
disagree.

The standard governing the admission of
evidence of other crimes in the guilt phase of a criminal trial
is well established. Generally, evidence that shows or tends to
show that a defendant has committed a prior crime is inadmissible
to prove the crime charged. Guill v. Commonwealth, 255 Va.
134, 138, 495 S.E.2d 489, 491 (1998); Woodfin v. Commonwealth,
236 Va. 89, 95, 372 S.E.2d 377, 380 (1988), cert. denied,
490 U.S. 1009 (1989); Kirkpatrick v. Commonwealth, 211 Va.
269, 272, 176 S.E.2d 802, 805 (1970).

There are several exceptions to the general
rule excluding this type of evidence. Among other exceptions,
evidence of other crimes is admissible when relevant to show a
perpetrator’s identity, if certain requirements are met. We
discussed those requirements in Chichester v. Commonwealth,
248 Va. 311, 326-27, 448 S.E.2d 638, 649 (1994), cert. denied,
513 U.S. 1166 (1995):

[O]ne of the issues upon which "other
crimes" evidence may be admitted is that of the
perpetrator’s identity, or criminal agency, where that has been
disputed. Proof of modus operandi is competent evidence
where there is a disputed issue of identity.

. . . .

[E]vidence of other crimes, to qualify for
admission as proof of modus operandi, need not bear such
an exact resemblance to the crime on trial as to constitute a
"signature." Rather, it is sufficient if the other
crimes bear a "singular strong resemblance to the pattern of
the offense charged." That test is met where the other
incidents are "sufficiently idiosyncratic to permit an
inference of pattern for purposes of proof," thus tending to
establish the probability of a common perpetrator.

. . . .

If the evidence of other crimes bears
sufficient marks of similarity to the crime charged to establish
that the defendant is probably the common perpetrator, that
evidence is relevant and admissible if its probative value
outweighs its prejudicial effect . . . The trial court,
in the exercise of its sound discretion, must decide which of
these competing considerations outweighs the other. Unless that
discretion has been clearly abused, we will affirm the trial
court’s decision on this issue.

Id. (quoting Spencer v. Commonwealth,
240 Va. 78, 89-90, 393 S.E.2d 609, 616-17, cert. denied,
498 U.S. 908 (1990)(citations omitted)); see also Turner
v. Commonwealth
, 259 Va. ___, ___, ___ S.E.2d ___, ___ (2000)
decided today; Guill, 255 Va. at 138-39, 495 S.E.2d at
491-92.

Applying the Spencer standard, we
conclude that the trial court did not abuse its discretion in
admitting the testimony of Scott and Chambliss in the guilt phase
of the trial. The three crimes bear a singular strong resemblance
to one another, based on common incidents that are sufficiently
idiosyncratic to establish the probability of a common
perpetrator. In addition, the record supports a finding that the
probative value of this evidence of other crimes outweighed its
potential prejudicial effect.

The crimes committed against Scott, Chambliss,
and Hall occurred within a 60-day period. The victims were all
young African-American women. Each victim knew Johnson, and there
were no signs of forced entry into the dwellings in which the
crimes occurred. In each case, the attacker used a
"steak" knife that he obtained in the victim’s
dwelling. Each victim was raped, and the attacker stabbed the
victims who resisted him.

The attacker asked Scott and Chambliss for a
drink of water before he attacked them, and a bloodstained broken
drinking glass was found in the kitchen of Hall’s apartment.
Hamilton estimated that the DNA from the blood found on the
broken glass, which matched Johnson’s DNA, would occur once in
980 times in the Black population. Finally, the attacker ordered
both Scott and Chambliss to disrobe completely, and Hall’s
clothes were found intact on the floor of her apartment near her
nude body.

Chain of Custody of Blood
Sample

Johnson argues that the trial court erred in
admitting into evidence the analysis of the blood sample taken
from him for inclusion in the DNA data bank while he was
incarcerated at Southampton Correctional Institute in September
1995. He asserts that the Commonwealth did not establish the
chain of custody of the blood sample, and he contends that the
Commonwealth had "insufficient controls . . . to
conclusively track a sample once it reaches the lab to insure
that one specimen is not mixed with another." We find no
merit in this argument.

A chain of custody is properly established when
the Commonwealth’s evidence provides reasonable assurance that
the sample to be admitted at trial is the same sample, and in the
same condition, as when it was first obtained. Vinson v.
Commonwealth
, 258 Va. 459, 469, 522 S.E.2d 170, 177, (1999); Pope
v. Commonwealth
, 234 Va. 114, 121, 360 S.E.2d 352, 357
(1987), cert. denied, 485 U.S. 1015 (1988). Thus, under
this standard, the Commonwealth is not required to eliminate
every conceivable possibility of substitution, alteration, or
tampering. Pope, 234 Va. at 121, 360 S.E.2d at 357; Alvarez
v. Commonwealth
, 24 Va. App. 768, 776, 485 S.E.2d 646, 650
(1997).

In the present case, the Commonwealth proved
that Ann Chavis drew Johnson’s blood, and that she taped and
initialed the vial containing the sample before delivering it to
Deborah Harrell. Harrell kept the sample in her custody until
delivering it to Diane Hamilton at the Division of Forensic
Science DNA laboratory. The sample remained in the custody and
control of the DNA laboratory until it was analyzed.

We also note that under Code
? 19.2-187.01, an attested report of analysis from the
Division of Forensic Science is prima facie evidence of custody
from the time a sample is received by the laboratory until it is
released after testing. Johnson presented no evidence to overcome
the Commonwealth’s introduction of this prima facie evidence, or
the direct evidence of actual custody of the blood sample.
Therefore, the Commonwealth met its burden of demonstrating a
reasonable assurance that Johnson’s blood sample was the same
sample, and in the same condition, as when it first was obtained.

Testimony of DNA Expert
Witnesses

Johnson contends that Jean Hamilton and George
Li lacked sufficient expertise to testify concerning
"population and statistical genetics." Thus, he
disputes the admission of their testimony regarding the
statistical probability that someone other than Johnson would
have the same DNA profile as the donor of the DNA found on
evidence collected from Hall’s apartment. We disagree with
Johnson’s argument.

The issue whether a witness is qualified to
testify as an expert on a given subject is a matter submitted to
the trial court’s discretion, and the trial court’s ruling in
this regard will not be disturbed on appeal unless it plainly
appears that the witness was not qualified. Spencer v.
Commonwealth
, 238 Va. 275, 305, 384 S.E.2d 775, 792 (1989), cert.
denied
, 493 U.S. 1036 (1990); Lane v. Commonwealth,
223 Va. 713, 718, 292 S.E.2d 358, 361 (1982); Wileman v.
Commonwealth
, 24 Va. App. 642, 647, 484 S.E.2d 621, 624
(1997).

Li testified that he was the supervisor of
forensic biology examiners at the Division of Forensic Science
laboratory in Richmond, and that he also conducted forensic
biology examinations as part of his duties. Li holds a Master of
Science degree in forensic science. He received training in DNA
analysis, including statistical issues involved in such analysis,
from the Federal Bureau of Investigation. Li had trained both
investigators and technicians on the theory and technique of DNA
typing, and was an instructor in the graduate program in forensic
science at Virginia Commonwealth University. He had performed DNA
analyses on thousands of samples and previously had qualified as
an expert witness in the field of forensic science. He explained
that forensic DNA analysis involves a determination whether a
person can be eliminated as a source of DNA found at a crime
scene, as well as a determination regarding how frequently a
particular DNA profile appears in the general population.

Hamilton testified that she holds a Master of
Science degree in forensic science, and has been employed by the
Commonwealth Division of Forensic Science for 12 years as a
forensic scientist. She also completed undergraduate and graduate
level courses in statistics. Hamilton explained that part of her
work in DNA analysis involves an assessment of the approximate
frequency that a particular DNA profile appears in the general
population. She also stated that she previously has testified as
an expert witness regarding such probabilities. Based on this
foundation testimony, we conclude that the trial court did not
abuse its discretion in allowing Li and Hamilton to testify
concerning the statistical probabilities at issue in this case.

Evidence of Third Party Guilt

Johnson argues that the trial court erred in
refusing to allow him to present testimony that would have proved
that Leroy Quick, III, was the person who raped and murdered Hope
Hall. Johnson proffered the testimony of Natalie Williams, Hall’s
co-worker, who would have testified that Hall received flowers
from Quick shortly before she was murdered, and that Hall told
Williams that Hall did not "want to have anything to do
with" Quick because he was "crazy." Johnson also
proffered the testimony of three women who worked in the rental
office of Hall’s apartment complex who would have testified that
within 30 days before the murder, Hall expressed "concern
and apprehension" about a person she used to date.
[5] One of these rental office workers, Dolores Reid, also
would have testified that about one month before the murder, she
saw Leroy Quick grab Hall in an attempt to "get her to go
from one room to another."

We find no merit in Johnson’s argument that the
trial court abused its discretion in refusing to admit this
evidence. Proffered evidence "that merely suggests a third
party may have committed the crime charged is
inadmissible; only when the proffered evidence tends clearly
to point to some other person as the guilty party will such proof
be admitted." Soering v. Deeds, 255 Va. 457, 464, 499
S.E.2d 514, 518 (1998). We have stated that "a large
discretion must and should remain vested in the trial court as to
the admission of this class of testimony." Karnes v.
Commonwealth
, 125 Va. 758, 766, 99 S.E. 562, 565 (1919); see
also Oliva v. Commonwealth, 19 Va. App. 523, 527,
452 S.E.2d 877, 880 (1995); Weller v. Commonwealth, 16 Va.
App. 886, 890, 434 S.E.2d 330, 333 (1993).

In Karnes, we reversed a defendant’s
conviction because the trial court refused to admit evidence of
death threats that a third party had made to the victim shortly
before she was murdered. 125 Va. at 766-67, 99 S.E. at 565. In Oliva,
the Court of Appeals reversed a defendant’s conviction because
the trial court excluded testimony from a witness who had
observed someone other than the defendant, but who resembled him,
running from the scene of the crime. 19 Va. App. at 528-29, 452
S.E.2d at 881.

In contrast to the evidence at issue in Karnes
and Oliva, the proffered testimony at issue here bore no
direct relation to the crimes charged. Instead, the proffered
testimony tended to prove only that Hall had a poor relationship
with Quick, and such evidence would have invited the jury to
speculate that these difficulties caused Quick to rape and murder
Hall. Moreover, Hamilton testified that she had eliminated Quick
as a possible source of the DNA found on the crime scene
evidence. Thus, we hold that the trial court did not abuse its
discretion in excluding the proffered evidence.

Sufficiency of Evidence of
Rape

Johnson argues that the trial court erred in
denying his motion to strike the rape charge and the reference to
rape or attempted rape in the capital murder charge. He contends
that the evidence was insufficient to support a finding of rape
because there was no evidence of trauma to Hall’s vaginal area,
no evidence of penetration, and only one injury, a ragged
fingernail, that could be considered a defensive injury. We
disagree with Johnson’s argument.

"Rape is defined as ‘sexual intercourse
against the victim’s will by force, threat, or
intimidation.’" Wilson v. Commonwealth, 249 Va. 95,
100, 452 S.E.2d 669, 673, cert. denied, 516 U.S. 841
(1995)(quoting Hoke v. Commonwealth, 237 Va. 303, 310, 377
S.E.2d 595, 599, cert. denied, 491 U.S. 910 (1989)); see
Code ? 18.2-61. "Penetration by a penis of a vagina is
an essential element of the crime of rape; proof of penetration,
however slight the entry may be, is sufficient." Moore v.
Commonwealth
, 254 Va. 184, 186, 491 S.E.2d 739, 740
(1997)(quoting Elam v. Commonwealth, 229 Va. 133, 115, 326
S.E.2d 685, 686 (1985)).

Hamilton testified that the DNA from the sperm
taken from Hall’s vagina matched Johnson’s DNA sample. The
presence of Johnson’s sperm in Hall’s vagina alone is sufficient
to support the finding that penetration occurred. Spencer,
238 Va. at 284, 384 S.E.2d at 780. The evidence also was
overwhelming that Hall did not consent to having sexual
intercourse with Johnson. Hall sustained 15 stab wounds in her
struggle with her attacker. She also sustained facial abrasions,
and she had a broken fingernail that Dr. Deborah Kay
characterized as a "defense-type" injury. Thus, the
trial court did not err in refusing to strike the rape charge and
the reference to rape and attempted rape in the capital murder
charge.

VI. SENTENCE REVIEW

Passion and Prejudice

Under Code ? 17.1-313(C), we review the
death sentence imposed on Johnson to determine whether it (1) was
imposed under the influence of passion, prejudice, or any other
arbitrary factor; or (2) is excessive or disproportionate to the
penalty imposed in similar cases, considering both the crime and
the defendant. Johnson contends that the jury imposed the death
sentence based on passion after the Commonwealth presented
emotional testimony from Hall’s mother and the father of Hall’s
young son, as well as the testimony of the two victims of the
rapes Johnson committed in New Jersey and New York. We find no
merit in this argument.

The victim impact evidence received in this
case addressed the substantial impact that Hall’s murder had on
the lives of her mother and her son. This testimony plainly was
admissible for the jury’s consideration in the sentencing
process. See Payne v. Tennessee, 501 U.S. 808, 827
(1991); Kasi, 256 Va. at 422, 508 S.E.2d at 65; Beck,
253 Va. at 381, 484 S.E.2d at 903. In addition, the evidence of
other rapes committed by Johnson was admissible since it was
relevant to the jury’s determination of future dangerousness. See
Orbe v. Commonwealth, 258 Va. 390, 401, 519 S.E.2d 808,
814 (1999); Walker, 258 Va. at 64, 515 S.E.2d at 571.
Based on our independent review of the entire record as required
by Code ? 17.1-313(C)(1), we conclude that there is no
evidence that the death sentence was "imposed under the
influence of passion, prejudice or any other arbitrary
factor."
[6]

Excessiveness and
Proportionality

Johnson contends that the death sentence
imposed in this case is disproportionate and excessive when
compared to the penalties imposed on other 16-year-old males who
committed like offenses. In support of his argument, he cites the
dissenting opinion in Jackson, 255 Va. at 652-56, 499
S.E.2d at 555-57. We disagree with Johnson’s argument.

In conducting our proportionality review, we
must determine whether "other sentencing bodies in this
jurisdiction generally impose the supreme penalty for comparable
or similar crimes, considering both the crime and the
defendant." Jenkins v. Commonwealth, 244 Va. 445,
461, 423 S.E.2d 360, 371 (1992), cert. denied, 507 U.S.
1036 (1993); see also Hedrick v. Commonwealth,
257 Va. 328, 342, 513 S.E.2d 634, 642 cert. denied, ___
U.S. ___, 120 S.Ct. 376 (1999). We compare the record in this
case with the records of other capital murder cases, including
those cases in which a life sentence has been imposed. We have
examined the records of all capital cases reviewed by this Court
pursuant to Code ? 17.1-313(E). Since the jury imposed the
death sentence based on both the future dangerousness and
vileness predicates, we give particular consideration to other
capital murder cases in which the death penalty was obtained
under both predicates.

Johnson’s age at the time he committed the
offenses is only one factor to consider in determining whether
other juries generally impose the death sentence for similar
crimes. The record also shows that he committed five rapes within
a seven-month period. Johnson beat and stabbed one rape victim,
in addition to inflicting multiple stab wounds in his murder of
Hall. The stab wounds inflicted on Hall that resulted in her
murder reflect an aggravated battery of the victim and an
escalating pattern of violence in Johnson’s commission of the
five rapes cited above.

Juries in this Commonwealth generally, with
some exceptions, have imposed the death sentence for convictions
of capital murder based on findings of future dangerousness and
vileness in which the underlying predicate crimes involved
violent sexual offenses and the defendant had committed violent
offenses on other occasions. See, e.g., Vinson,
258 Va. 459, 522 S.E.2d 170; Cherrix, 257 Va. 292, 513
S.E.2d 642; Hedrick, 257 Va. 328, 513 S.E.2d 634; Barnabei
v. Commonwealth
, 252 Va. 161, 477 S.E.2d 270 (1996), cert.
denied
, 520 U.S. 1224 (1997); Wilson, 249 Va. at 105,
452 S.E.2d at 676; Williams v. Commonwealth, 248 Va. 528,
450 S.E.2d 365 (1994), cert. denied, 515 U.S. 1161 (1995);
Breard, 248 Va. at 89, 445 S.E.2d at 682; Mueller v.
Commonwealth
, 244 Va. 386, 422 S.E.2d 380 (1992) cert.
denied
, 507 U.S. 1043 (1993); Spencer, 238 Va. 295,
384 S.E.2d 785; Coleman v. Commonwealth, 226 Va. 31, 307
S.E.2d 864 (1983), cert. denied, 465 U.S. 1109 (1984).
Based on this review, we hold that Johnson’s death sentence is
neither excessive nor disproportionate to penalties imposed by
other sentencing bodies in the Commonwealth for comparable
crimes, considering both the crime and the defendant.

VII. CONCLUSION

We find no reversible error in the judgments of
the trial court. Having reviewed Johnson’s death sentence
pursuant to Code ? 17.1-313, we decline to commute the
sentence of death. Accordingly, we will affirm the trial court’s
judgments.

Record No. 992525 — Affirmed.

Record No. 992526 — Affirmed.

 

 

FOOTNOTES:

[1]

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