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ORBE v. COMMONWEALTH



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ORBE

v.

COMMONWEALTH


September 17, 1999

Record Nos. 990363 & 990364

 

DENNIS MITCHELL ORBE

v.

COMMONWEALTH OF VIRGINIA

 

FROM THE CIRCUIT COURT OF YORK COUNTY

N. Prentis Smiley, Jr., Judge

Present: All the Justices

OPINION BY JUSTICE CYNTHIA D. KINSER


A jury convicted the defendant, Dennis Mitchell
Orbe, of four charges in connection with a murder during the
commission of robbery. Those convictions are: (1) capital murder,
in violation of Code ? 18.2-31(4); (2) use or display of a
firearm while committing murder, in violation of Code
? 18.2-53.1; (3) robbery, in violation of Code
? 18.2-58; and (4) use or display of a firearm while
committing robbery, in violation of Code ? 18.2-53.1.

At the conclusion of the sentencing phase of a
bifurcated trial, the jury fixed the defendant’s punishment
at death for the capital murder, 50 years for the robbery, and 5
years for each of the firearms offenses. The jury imposed the
sentence of death based on its finding of future dangerousness
under Code ?? 19.2-264.2 and -264.4. After reviewing the
post-sentence report required by Code ? 19.2-264.5, the
trial court sentenced the defendant in accordance with the jury
verdicts.

The defendant appealed his non-capital
convictions to the Court of Appeals pursuant to Code
? 17.1-406.
[1] We certified that appeal (Record
No. 990364) to this Court under the provisions of Code
? 17.1-409 for consolidation with the defendant’s
appeal of his capital murder conviction (Record No. 990363) and
the sentence review mandated by Code ? 17.1-313.

On appeal, the defendant challenges the trial
court’s refusal to instruct the jury on lesser included
offenses, the finding of future dangerousness based on
consideration of unadjudicated criminal acts, the admission of
photographic evidence, and the court’s refusal to allow the
defendant to mail a questionnaire to prospective jurors. After
considering each of these arguments and conducting our statutory
review pursuant to Code ? 17.1-313, we find no error in the
defendant’s convictions and sentence of death. Thus, we will
affirm the judgments of the circuit court.

I. FACTS

A. GUILT PHASE

The criminal offenses for which the defendant
was convicted occurred at a gas station and convenience store
located in York County. The convenience store was equipped with a
video camera recording system that monitored three areas of the
premises, including the check-out counter and cash register. The
camera focused on the cash register captured the incident that is
pertinent to this appeal and recorded it on a video tape. That
tape reveals the following sequence of events.
[2]

Near 3:38 a.m. on January 24, 1998, the
defendant entered the convenience store, walked up to the
check-out counter where Richard Sterling Burnett was working as a
clerk, and pointed a revolver at Burnett’s chest.
[3] After Burnett opened the cash register drawer, the
defendant shot him in the chest. As Burnett was clutching his
chest and struggling to remain in a standing position, the
defendant walked around the counter, reached into the cash
register rawer, and removed some money from it.
[4] He then fled from the store.

A short while later, a customer at the
convenience store discovered Burnett’s body and called for
emergency assistance. F.T. Lyons, an investigator with the York
County Sheriff’s Office, arrived on the scene about 4:25
a.m. Investigator Lyons found Burnett’s body "on the
floor . . . behind the register." He collected
several items from the store for evidentiary purposes, including
the video tape recording. He took the video tape to the
sheriff’s office where he used computer equipment to view it
"frame by frame." Lyons captured images from the video
tape, digitized and saved them, and then printed several of the
images. He distributed those printed images to area law
enforcement agencies and the media.

The sheriff’s office subsequently received
several telephone calls from persons who identified the defendant
as the individual in the pictures that Lyons had distributed.
Investigator Lyons then obtained warrants charging the defendant
with capital murder, robbery, and use of a firearm in the
commission of murder.
[5]

The defendant was not apprehended, however,
until January 31, 1998, after a high-speed chase through the
streets of Richmond. During the police officers’ pursuit,
the defendant drove his car across a concrete median strip and
struck a telephone pole, then proceeded to drive on the wrong
side of the road, and accelerated through a roadblock.
Eventually, the defendant jumped out of his vehicle and ran on
foot until police officers captured him at the end of an alley.

After placing the defendant under arrest, a
police officer searched the defendant’s person. During the
search, the officer found a partially loaded .357 magnum revolver
in the waistband of the defendant’s pants.
[6]
Investigator Lyons eventually took possession of the weapon
recovered from the defendant and submitted it to the Commonwealth
of Virginia Department of Criminal Justice Services, Division of
Forensic Science, for testing.

Scott A. Glass, a forensic scientist who works
in the field of firearm and tool mark identification at the
Division of Forensic Science, tested the revolver along with a
"lead semi-wadcutter"
[7] bullet that had
been removed from Burnett’s chest during an autopsy. Based
on the results of his analysis, Glass concluded that the bullet
had been fired from the .357 magnum revolver.

Dr. Elizabeth Kinnison, a pathologist and an
Assistant Chief Medical Examiner for the Commonwealth of
Virginia, performed the autopsy on Burnett’s body. During
the autopsy, Dr. Kinnison recovered the bullet from the right
side of Burnett’s back where it was lodged. According to Dr.
Kinnison, Burnett had "sustained one gunshot wound to the
front of the left chest[,]" which was the cause of death.
Dr. Kinnison stated that Burnett died "[p]rimarily from
hemorrhage or bleeding from these wounds" and that
"[t]he structures that were injured that were vital were the
heart and the liver and the lung, which all would have caused
internal bleeding." She further testified that a person
sustaining this type of injury "[m]ight have been in some
pain associated with the skin[,]" would have suffered
increasing problems with breathing as blood was lost, and would
have become dizzy and eventually unconscious before dying.

B. SENTENCING PHASE

During the sentencing phase of the trial, the
Commonwealth presented evidence to prove the defendant’s
future dangerousness. The evidence concerned other criminal acts
that the defendant had committed in three separate incidents.

The first incident occurred on January 21,
1998. Lois Jones testified that when she and her boyfriend, Mark
Scougal, returned home, Scougal discovered the defendant in a
bedroom. The defendant pointed a gun at Scougal and ordered
Scougal to drive him "somewhere else" because he was
hiding from the police. As the defendant was forcing Scougal to a
car, Jones retrieved a gun from her gun cabinet, loaded it, and
went out onto the front porch of her house in order to stop the
defendant. Although there was conflicting testimony about whether
Jones then fired her gun up into the air, the defendant shot at
Jones twice. His second shot hit Jones in the calf of her leg and
shattered the bone. The defendant then demanded that cougal give
him the car keys, but when Scougal refused to comply, the
defendant fled from the scene.

The second episode, also on January 21, 1998,
involved Charles Powell and William Bottoms, two elderly
gentlemen. While Powell and Bottoms were sitting in the front
yard of Bottoms’ Richmond home, the defendant approached the
two men and ordered them to walk to the rear of the house. The
defendant displayed a weapon to the men and stated that he
"[had] nothing to lose." After questioning both men
about the location of their cars, keys, and wallets, the
defendant took Powell’s car and left in it.

Karen Glenn and Patricia Tuck testified about
the third incident, which occurred on January 30, 1998. After
Glenn, Tuck, and another woman arrived at a private residence in
New Kent County to perform cleaning services, the defendant, who
was already inside the house, approached the women, brandished a
handgun, and yelled, "Bitches, get down." As they were
starting to "get down," the defendant hit Tuck between
her shoulder blades with the gun. He then ordered the three women
to crawl on their stomachs to a bedroom. Once the women were in
the bedroom, the defendant made them go into a closet. He then
nailed a piece of plywood across the closet door. The women were
trapped inside the closet for approximately four and one-half
hours, until the homeowner returned and found them. During this
ordeal, the defendant proclaimed, "I’m Dennis Orbe,
I’m wanted for murder, and it doesn’t matter what I
do." He also directed the women to empty their pockets and
took money, checks, and other valuables, including the keys to
Glenn’s car, from them. He stole the car.

In accordance with Code ? 19.2-264.4(B),
the jury also heard evidence "in mitigation of the
offense." The defendant’s mother and step-father
testified about the defendant’s troubled childhood and his
problems with alcohol abuse. One of his friends described a
change in the defendant’s behavior shortly before the
incidents in January 1998, and the administrator of a regional
jail, where the defendant had been incarcerated, testified that
he had received only one minor complaint with regard to the
defendant’s behavior during his confinement.

The defendant also presented testimony from Dr.
Thomas A. Pasquale, a clinical psychologist who had evaluated the
defendant for purposes of mitigation and risk assessment
regarding the defendant’s future dangerousness. Dr. Pasquale
testified that the defendant had exhibited suicidal intentions at
least a year prior to the events that transpired in January 1998
and that the defendant was depressed, in part, over his perceived
failure as a father and husband. Dr. Pasquale further reported
that the defendant drank heavily and had an impulse control
dysfunction.

During his evaluation, Dr. Pasquale learned
that the defendant’s father had abandoned the defendant at
an early age. Consequently, Dr. Pasquale opined that the
defendant, who had recently located his father, might have wished
to visit his father again and that he had decided to obtain money
illegally to accomplish that purpose. According to Dr. Pasquale,
the defendant thus "reasoned his way to intrude into a
number of individuals’ lives by way of robbery, home
invasion, weapons discharge[,] . . . brandishing and
general intimidation."

In conclusion, Dr. Pasquale testified that he
did not perceive the defendant as being a future danger in a
prison setting unless he was able to access alcohol inside the
prison, was abused by those within the prison system, or was
placed under conditions of duress while incarcerated. However,
Dr. Pasquale stated that, if the defendant escaped from a
penitentiary, it would be a "very dangerous, very
risky" situation.

II. ANALYSIS

A. INSTRUCTIONS ON LESSER
INCLUDED OFFENSES

In his first argument,[8] the defendant asserts that his death sentence was
imposed under the influence of passion, prejudice, or other
arbitrary factors. Specifically, he contends that the circuit
court erred in refusing to grant an instruction on first degree
murder and an instruction on determining the grade of the offense
of homicide.
[9] The defendant makes the
same argument on appeal but also asserts that the instructions
should have been given to the jury because the question whether
the defendant acted maliciously was disputed.
[10]
We do not agree with the
defendant’s argument.

It is well-established in Virginia that jury
instructions "are proper only if supported by the evidence,
and that more than a scintilla of evidence is necessary to
support a lesser-included offense instruction requested by the
defendant." Commonwealth v. Donkor, 256 Va. 443, 445,
507 S.E.2d 75, 76 (1998). We have also recognized that
"evidence showing a murder ‘to have been deliberate,
premeditated and wilful could be so clear and uncontroverted that
a trial court could properly refuse to instruct on the lesser
included offenses.’" Buchanan v. Commonwealth,
238 Va. 389, 409, 384 S.E.2d 757, 769 (1989), cert. denied,
493 U.S. 1063 (1990)(quoting Painter v. Commonwealth, 210
Va. 360, 366, 171 S.E.2d 166, 171 (1969)).

The evidence in the present case does not
support the defendant’s proffered instructions. An
instruction on first degree murder was not warranted because the
video tape clearly established that Burnett was shot in the chest
during the commission of armed robbery at the convenience store. See
Bennett v. Commonwealth, 236 Va. 448, 470, 374 S.E.2d 303,
317 (1988), cert. denied, 490 U.S. 1028 (1989)
(holding first degree murder instruction not warranted because
defendant adduced no evidence that victim was not murdered during
commission of robbery). Thus, the sole issue was whether the
defendant was the person who killed Burnett, i.e., was he
"guilty or innocent of the capital offense." Frye v.
Commonwealth
, 231 Va. 370, 389, 345 S.E.2d 267, 281 (1986).
Also, the record does not contain a scintilla of evidence that
the defendant acted without premeditation or malice so as to
justify an instruction on second degree murder or voluntary
manslaughter, respectively. See Donkor, 256 Va. at
445, 507 S.E.2d at 76. Accordingly, we find no error in the
circuit court’s judgment refusing to grant these two
instructions.

B. FUTURE DANGEROUSNESS BASED ON

UNADJUDICATED CRIMINAL ACTS

Next, the defendant challenges the imposition
of the death penalty based on the finding that "he would
commit criminal acts of violence that would constitute a
continuing serious threat to society" pursuant to Code
? 19.2-264.4(C). The defendant’s attack with regard to
this issue is threefold. He first asserts that the evidence was
insufficient as a matter of law to establish future dangerousness
because he "had no prior history of significant violent
offenses." He next contends that the trial court applied an
incorrect legal standard in determining future dangerousness.
Finally, he argues that the introduction into evidence of
unadjudicated criminal acts violates the Constitution of the
United States and the Constitution of Virginia because there is
no requirement that such acts be proven beyond a reasonable
doubt.
[11] We do not agree with any of the defendant’s
arguments.

As to the first prong of the defendant’s
attack, we find sufficient evidence of future dangerousness to
support the imposition of the death penalty. During the month of
January 1998, the defendant committed numerous criminal acts in
three separate episodes, in addition to the robbery and murder of
Burnett. On January 21, he entered Jones’ home while no one
was present and then shot Jones in the leg when she attempted to
stop the defendant’s abduction of Scougal. That same day,
the defendant used a firearm to rob Powell. Then on January 30,
the day before the defendant was apprehended, he abducted and
robbed three women, again using a firearm, and left them in a
small closet after nailing the door shut. This evidence
establishes beyond a reasonable doubt "a probability that
the defendant would commit criminal acts of violence that would
constitute a continuing serious threat to society." Code
? 19.2-264.2; see also ? 19.2-264.4(C).
Thus, the trial court did not err in refusing to strike the
Commonwealth’s evidence with regard to the defendant’s
future dangerousness.

The defendant’s next argument is that the
trial court adopted the wrong legal standard when it used the
phrase "sufficient probable cause" in the following
statement, which the court made while overruling the
defendant’s motion to strike the Commonwealth’s
evidence at sentencing: "The matter of future dangerousness,
again, the evidence — there is evidence before the Court and
before this jury and the jury will make the determination as to
whether there is sufficient probable cause — probability
that the Defendant is guilty of any future dangerousness."
We do not agree with the defendant’s contention for two
reasons.

First, we believe that the court’s use of
that phrase was a misstatement because the court immediately
corrected itself by using the term "probability." The
term "probability" is part of the criteria set forth in
Code ? 19.2-264.4(C) for determining future dangerousness:
"The penalty of death shall not be imposed unless the
Commonwealth shall prove beyond a reasonable doubt that there is
a probability based upon evidence of the prior history of
the defendant . . . that he would commit criminal acts
of violence that would constitute a continuing serious threat to
society." (Emphasis added.) See also Code
? 19.2-264.2. Furthermore, the court properly instructed
the jury in accordance with this statutory provision. Thus, we
conclude that the trial court decided the motion to strike on the
issue of future dangerousness under the appropriate standard.

We also find no merit in the third aspect of
the defendant’s argument regarding future dangerousness. The
defendant asserts that the Commonwealth used unadjudicated
criminal acts that had not been proven beyond a reasonable doubt
to establish future dangerousness. However, most of the criminal
acts about which the jury heard evidence had been adjudicated.
The record shows that, before the sentencing hearing in this
case, the defendant had been found guilty, based on his guilty
pleas, of the offenses that he committed on January 21 in
the City of Richmond and those that he committed on January 30 in
New Kent County.

As to those criminal acts that were
unadjudicated on the date of the sentencing hearing in the
present case, we have previously construed Code
? 19.2-264.4(C) "to permit the admission into evidence
of unadjudicated misconduct." Spencer v. Commonwealth,
238 Va. 295, 317, 384 S.E.2d 785, 799 (1989), cert. denied,
493 U.S. 1093 (1990). Moreover, we specifically held in Walker
v. Commonwealth
, 258 Va. 54, 66, 515 S.E.2d 565, 572 (1999),
that evidence of each unadjudicated criminal act admitted to show
a defendant’s future dangerousness is not subject to the
reasonable doubt standard. Rather, the finding of future
dangerousness must be supported by proof beyond a reasonable
doubt. Id. The defendant has offered no reason why we
should depart from these precedents. Accordingly, we will not
disturb the circuit court’s judgment on this issue.

C. ADMISSION INTO EVIDENCE OF
PHOTOGRAPHS OF VICTIM

The defendant contends that the circuit court
erred in overruling a pretrial motion in limine to exclude
photographs of the victim, including autopsy photographs, from
being introduced into evidence at trial.
[12] The defendant argues that, since he had stipulated that
Burnett was killed by a single gunshot wound to the chest, the
Commonwealth offered the photographs solely to arouse the
sympathy of the jury for the victim and to prejudice it against
him.

Over the defendant’s objections, the trial
court admitted into evidence photographs exhibiting the following
images: (1) the open cash register drawer and the victim slumped
on the floor behind the check-out counter; (2) a closer view of
Burnett’s body sitting on the floor; (3) a small bruise on
Burnett’s back where Dr. Kinnison found the bullet; (4) the
entry wound in Burnett’s chest; (5) the victim’s
condition upon arrival for the autopsy and his blood-stained
shirt; (6) Burnett with some of his friends; and (7) Burnett
sitting at a sound booth in his church.

These photographs accurately depict the crime
scene and the victim, and are therefore not rendered
inadmissible simply because they may be gruesome or shocking. Walker,
258 Va. at 69, 515 S.E.2d at 574 (citing Walton v.
Commonwealth
, 256 Va. 85, 92, 501 S.E.2d 134, 138, cert.
denied, ___ U.S. ___, 119 S.Ct. 602 (1998)). The
photographs are relevant to show "motive, intent, method,
malice, premeditation and the atrociousness of [the
defendant’s] crimes." Chichester v. Commonwealth,
248 Va. 311, 326, 448 S.E.2d 638, 648 (1994), cert. denied,
513 U.S. 1166 (1995)(quoting Spencer, 238 Va. at 312, 384
S.E.2d at 796). Any prejudice to the defendant resulting from the
admission of the photographs is outweighed by the
photographs’ probative value. See Coe v.
Commonwealth
, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986)
(holding probative value of evidence must be balanced against any
prejudicial effect). On appeal, we will not disturb a trial
court’s exercise of discretion in balancing those competing
considerations absent a clear abuse of discretion. Id.

Furthermore, the defendant’s
stipulation with regard to the cause of Burnett’s death does
not preempt the introduction of the photographs into evidence. See
Mackall v. Commonwealth, 236 Va. 240, 253, 372 S.E.2d 759,
767-68 (1988), cert. denied, 492 U.S. 925 (1989) (holding
autopsy photograph of victim was admissible even if defendant
stipulated identity of victim). Thus, we conclude that the trial
court did not abuse its discretion in admitting the photographs. See
Clagett v. Commonwealth, 252 Va. 79, 87, 472 S.E.2d 263,
268 (1996), cert. denied, 519 U.S. 1122 (1997)
("The admission into evidence of photographs of the body of
a murder victim is left to the sound discretion of the trial
court and will be disturbed only upon a showing of a clear abuse
of discretion.").

D. INDIVIDUAL VOIR DIRE AND
JUROR QUESTIONNAIRES

Finally, in assignment of error number five,
the defendant claims that he was prejudiced by the court’s
refusal to permit him to mail a questionnaire to each prospective
juror. On brief, the defendant also argues that he was denied a
full and fair opportunity to examine the venire because the
circuit court did not allow him to conduct individual voir dire.
The defendant did not include the issue regarding individual voir
dire in an assignment of error. Therefore, we will not consider
it. Rule 5:17(c). As to the issue properly preserved, we find no
error in the circuit court’s judgment.

The manner in which voir dire is conducted lies
within the trial court’s discretion, and its decisions
concerning voir dire will not be disturbed absent an abuse of
discretion. Fisher v. Commonwealth, 236 Va. 403, 410-11,
374 S.E.2d 46, 50 (1988), cert. denied, 490 U.S.
1028 (1989). We have previously decided that a trial court did
not abuse its discretion by refusing to allow a defendant to send
a questionnaire to prospective jurors. Hedrick v. Commonwealth,
257 Va. 328, 337, 513 S.E.2d 634, 639 (1999); Strickler v.
Commonwealth
, 241 Va. 482, 489-90, 404 S.E.2d 227, 232, cert.
denied, 502 U.S. 944 (1991). Such a practice "would
detract from the trial judge’s ‘opportunity
. . . to observe and evaluate . . .
prospective jurors first hand.’" Id. at 490, 404
S.E.2d at 232 (quoting Pope v. Commonwealth, 234 Va. 114,
124, 360 S.E.2d 352, 358 (1987), cert. denied, 485
U.S. 1015 (1988)). "[T]he opportunity to see and hear the
veniremen, when questioned during voir dire, is crucial to the
effective discharge of the trial judge’s
responsibility." Strickler, 241 Va. at 490, 404
S.E.2d at 232. Thus, we conclude that the circuit court did not
abuse its discretion.
[13]

III. PASSION, PREJUDICE, AND
PROPORTIONALITY REVIEW

Pursuant to Code ? 17.1-313(C)(1), we
must determine whether the death sentence in this case was
imposed under the influence of passion, prejudice, or other
arbitrary factors. Upon careful review of the record, we find no
evidence that any such factor was present or influenced either
the jury’s or the trial court’s sentencing decision.
The defendant’s only contention with regard to this issue is
that the sentence of death was imposed under the influence of
prejudice because the trial court did not instruct the jury on
lesser included offenses. We have already addressed that
question.

Code ? 17.1-313(C)(2) requires us to
determine whether the sentence of death in this case is
"excessive or disproportionate to the penalty imposed in
similar cases, considering both the crime and the
defendant." Pursuant to Code ? 17.1-313(E), we have
accumulated the records of all capital murder cases reviewed by
this Court. The records include not only those capital murder
cases in which the death penalty was imposed, but also those
cases in which the trial court or jury imposed a life sentence
and the defendant petitioned this Court for an appeal. Whitley
v. Commonwealth
, 223 Va. 66, 82, 286 S.E.2d 162, 171, cert.
denied, 459 U.S. 882 (1982).

In complying with the statutory directive to
compare this case with "similar cases," we have
specifically focused on cases in which an employee was murdered
at a business establishment during the commission of robbery and
the death penalty was imposed solely on the future dangerousness
predicate.
[14] See, e.g. Peterson
v. Commonwealth
, 225 Va. 289, 302 S.E.2d 520, cert. denied,
464 U.S. 865, reh’g denied, 464 U.S. 1004
(1983)(accountant murdered during armed robbery of store;
defendant had prior convictions for armed robbery, two of which
occurred within three weeks of the capital murder); Townes v.
Commonwealth
, 234 Va. 307, 362 S.E.2d 650 (1987), cert.
denied, 485 U.S. 971 (1988)(female employee murdered
during robbery of store; defendant had 22 prior convictions for
forgery and uttering, 4 convictions for robbery, and convictions
for maiming, felony escape, and use of a firearm); Mackall,
236 Va. 240, 372 S.E.2d 759 (gas station cashier killed during
armed robbery; defendant’s criminal history included
larcenies, burglaries, threats of violence to correctional
officers, and possession of deadly weapon while incarcerated); Dubois
v. Commonwealth
, 246 Va. 260, 435 S.E.2d 636 (1993), cert.
denied, 511 U.S. 1012 (1994)(store employee murdered
during armed robbery; defendant previously convicted of grand
larceny, assault, and possession of firearm as a convicted
felon); Chichester, 248 Va. 311, 448 S.E.2d 638 (employee
killed during armed robbery of restaurant; defendant previously
convicted of carrying concealed weapon; and nine days before
capital murder offense, defendant robbed another restaurant); Joseph
v. Commonwealth
, 249 Va. 78, 452 S.E.2d 862, cert. denied,
516 U.S. 876 (1995) (employee murdered during armed robbery of
restaurant; defendant had assaulted police officer, had been in
possession of loaded revolver and crack cocaine, and had
participated in abduction of two store clerks during armed
robbery). We have also reviewed cases in which the defendant
received a life sentence, rather than the death penalty, for
capital murder during the commission of robbery. See, e.g.
Johnson v. Commonwealth, 221 Va. 736, 273 S.E.2d 784, cert.
denied, 454 U.S. 920 (1981); Bowling v. Commonwealth,
12 Va. App. 166, 403 S.E.2d 375 (1991); Wilkins v.
Commonwealth
, appeal denied, No. 840142 (Va. Oct. 10, 1984); Freeman
v. Commonwealth
, appeal denied, No. 830290 (Va. Jan. 25,
1984).

The purpose of our comparative review is to
reach a reasoned judgment regarding what cases justify the
imposition of the death penalty. We cannot insure complete
symmetry among all death penalty cases, but our review does
enable us to identify and invalidate a death sentence that is
"excessive or disproportionate to the penalty imposed in
similar cases." Code ? 17.1-313(C)(2); see Tennessee
v. Bland
, 958 S.W.2d 651, 665 (Tenn. 1997), cert. denied,
___ U.S. ___, 118 S.Ct. 1536 (1998)(The court’s
"function in performing comparative review is not to search
for proof that a defendant’s death sentence is perfectly
symmetrical, but to identify and invalidate the aberrant death
sentence."). The defendant has not argued that the sentence
of death in his case is disproportionate, and based on our review
of this case and "similar cases," we conclude that the
defendant’s sentence of death is not excessive or
disproportionate to sentences generally imposed in this
Commonwealth for capital murders comparable to the
defendant’s murder of Burnett.

For these reasons, we find no error either in
the judgments of the circuit court or in the imposition of the
death penalty. Therefore, we will affirm the judgments of the
circuit court.

Record No. 990363–Affirmed.

Record No. 990364–Affirmed.

 

FOOTNOTES:

[1] Title 17.1 became effective on
October 1, 1998, replacing Title 17. Although the parties briefed
and argued this appeal under the provisions of Title 17, we will
cite Title 17.1 in this opinion since the relevant provisions
remain unchanged.

[2] At trial, the Commonwealth
introduced the video tape recording into evidence and played it
for the jury.

[3] The defendant had been in the
store on two occasions on January 23 but had purchased nothing.

[4] According to a territorial
manager for the gas station and convenience store, the sum of
$90.65 was missing from the cash register drawer.

[5] In addition to these three
charges, a grand jury subsequently indicted the defendant for use
of a firearm during the commission of robbery.

[6] Willis L. Branch, Jr., the
defendant’s stepfather, testified that, sometime during the
first or second week of January, he discovered that his .357
magnum revolver was missing from the home that Branch shared with
the defendant and his mother. At trial, Branch identified the
revolver recovered from the defendant as having the same serial
number as the one that was missing from his home.

[7] Branch testified that he kept ".357 magnum, 158
grains semi-wadcutters" as ammunition for his revolver.

[8] The defendant’s first
argument encompasses numbers 1, 10, and 11 of his assignments of
error. All references to the defendant’s assignments of
error are to those that he originally filed rather than to the
assignments of error as the defendant renumbered them in his
brief.

Although the defendant filed 17 assignments of
error in this Court, he argued on brief only 10 of them. The
assignments of error that he did not argue, and that we will
therefore not consider, are numbers 6, 8, 9, 12, 15, 16, and 17. See
Quesinberry v. Commonwealth, 241 Va. 364, 370, 402 S.E.2d
218, 222, cert. denied, 502 U.S. 834 (1991)(holding
assignments of error not argued on brief are waived for purposes
of appeal).

[9] Although the defendant
stated at trial that he was not requesting an instruction on
second degree murder, one of his proffered instructions included
not only the elements of first degree murder but also those of
second degree murder and voluntary manslaughter. His other
instruction advised the jury that, if a reasonable doubt exists
as to the grade of the offense, the jury must resolve that doubt
in favor of the defendant.

[10] During oral argument, the
defendant posited that the testimony elicited from Scott Glass,
the forensic expert, during cross-examination supported the
defendant’s contention that the shooting of Burnett was
"accidental." Glass acknowledged that the weapon used
to kill Burnett was a double-action revolver, meaning that the
amount of "trigger pull" (the force necessary to work
the firing mechanism or cause the hammer to fall) required to
fire the gun is less when the hammer is cocked than when the
hammer is not in that position. But, Glass also testified that
the gun was equipped with a safety mechanism called a
"hammer block rebound system," which means that, even
when the hammer is cocked, "the trigger has to be pulled and
held in the most rearward position" in order for the gun to
fire.

[11] These three arguments
cover numbers 2, 3, 13, and 14 of the defendant’s
assignments of error.

[12] This argument addresses
numbers four and seven of the defendant’s assignments of
error.

[13] After the time limit for
filing assignments of error had expired, the defendant filed a
motion in this Court for leave to file an additional assignment
of error in this appeal. In the new assignment of error, he
asserted that the trial court gave the jury a verdict form that
was inconsistent with the penalty phase jury instructions. The
defendant based his motion on the recent decision of this Court
in Atkins v. Commonwealth, 257 Va. 160, 510 S.E.2d 445
(1999). This Court denied the defendant’s motion on May 10,
1999. Nevertheless, he argued, both on brief and orally, this
issue concerning the verdict form. Because the defendant failed
to preserve an objection to the verdict form at trial, the
defendant is procedurally barred from raising the issue on
appeal. Rule 5:17(c). Furthermore, we specifically denied his
motion to file an additional assignment of error. Although we
rely on the defendant’s procedural default to resolve this
issue, we note that the verdict form in this case did not have
the problem addressed in Atkins.

[14] This Court compiled a list
of cases involving capital murder during the commission of
robbery and a finding of future dangerousness in Yeatts v.
Commonwealth
, 242 Va. 121, 143, 410 S.E.2d 254, 267-68
(1991), cert. denied, 503 U.S. 946 (1992). We
supplemented that compilation in Chichester, 248 Va. at
332-33, 448 S.E.2d at 652; and in Roach v. Commonwealth,
251 Va. 324, 351, 468 S.E.2d 98, 113, cert. denied,
519 U.S. 951 (1996). Since the last supplementation, we have
decided Jackson v. Commonwealth, 255 Va. 625, 499 S.E.2d
538 (1998), cert. denied, __ U.S. __, 119 S.Ct. 796
(1999); and Walton, 256 Va. 85, 501 S.E.2d 134.

 

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