Morva v. Com.

PRESENT: All the Justices

WILLIAM CHARLES MORVA
OPINION BY
v. Record Nos. 090186 JUSTICE S. BERNARD GOODWYN
090187 SEPTEMBER 18, 2009

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
Ray W. Grubbs, Judge

William Charles Morva was charged, in the Circuit Court of

Montgomery County, with assaulting a law enforcement officer,

escape, two counts of use of a firearm in the commission of

murder, and three counts of capital murder. 1 Upon a joint

motion for change of venue, the case was transferred to the

Circuit Court of Washington County.

After a jury trial, Morva was found guilty of all charges,

and the case proceeded to a capital sentencing hearing. The

jury found both the future dangerousness and vileness

aggravating factors and sentenced Morva to death on all three

capital murder convictions. He was sentenced to a total of

sixteen years imprisonment on the noncapital offenses. On June

23, 2008, in accordance with the jury’s verdicts, the circuit

1
Morva was charged with the capital murder of Derrick
McFarland, the capital murder of Eric Sutphin, and the capital
offense of premeditated murder of more than one person within a
three-year period.
court sentenced Morva to death plus sixteen years and entered

final judgment.

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW 2

Applying settled principles of appellate review, we will

state the evidence presented at trial in the light most

favorable to the Commonwealth, the prevailing party at trial.

Gray v. Commonwealth, 274 Va. 290, 295, 645 S.E.2d 448, 452

(2007), cert. denied, ___ U.S. ___, 128 S.Ct. 1111 (2008);

Juniper v. Commonwealth, 271 Va. 362, 376, 626 S.E.2d 383, 393,

cert. denied, 549 U.S. 960 (2006).

A. Facts Adduced At Trial

In the summer of 2006, Morva was in jail awaiting trial on

charges of attempted burglary, conspiracy to commit burglary,

burglary, attempted robbery, and use of a firearm. He had been

in jail for approximately one year. While in jail he wrote a

letter to his mother stating, “I will kick an unarmed guard in

the neck and make him drop. Then I’ll stomp him until he is as

dead as I’ll be.”

Morva was scheduled to go to trial on August 23, 2006. In

the evening on August 19, 2006, he informed the jail personnel

that he required medical attention due to an injury to his leg

and forearm. During the early morning hours of August 20,

2
2006, Sheriff’s Deputy Russell Quesenberry, who was in uniform

and armed with a Glock .40 caliber semi-automatic pistol,

transported Morva to the Montgomery Regional Hospital located

in Montgomery County. Morva was wearing waist chains, but

Deputy Quesenberry did not secure Morva’s allegedly injured

arm.

Upon arrival at the hospital, Morva “kept trying” to walk

on Deputy Quesenberry’s right side even though he was ordered

to walk on Deputy Quesenberry’s left side. Quesenberry was

required to have Morva walk on his left because Quesenberry

wore his gun on his right side. Quesenberry observed that

Morva’s limping was sporadic and “sort of went away.” Also,

Nurse Melissa Epperly observed Morva walking as if he were not

injured.

After the hospital treated Morva, Morva requested to use

the bathroom. Deputy Quesenberry inspected the bathroom and

allowed Morva access. While in the bathroom, Morva removed a

metal toilet paper holder that was screwed to the wall. As

Deputy Quesenberry entered the bathroom, Morva attacked him

with the metal toilet paper holder, breaking Quesenberry’s

nose, fracturing his face, and knocking him unconscious. Morva

then took Quesenberry’s gun. Prior to leaving the bathroom,

2
Certain facts relating to the specific assignments of
error will be stated or more fully described in the later

3
Morva confirmed that Quesenberry’s gun was ready to fire,

ejecting a live round from the chamber.

After escaping from the bathroom, Morva encountered

Derrick McFarland, an unarmed hospital security guard. Morva

pointed Quesenberry’s gun at McFarland’s face. McFarland stood

with his hands out by his side and palms facing Morva. Despite

McFarland’s apparent surrender, Morva shot McFarland in the

face from a distance of two feet and ran out of the hospital,

firing five gunshots into the electronic emergency room doors

when they would not open. McFarland died from the gunshot to

his face.

In the morning of August 21, 2006, Morva was seen in

Montgomery County near “Huckleberry Trail,” a paved path for

walking and bicycling. Corporal Eric Sutphin, who was in

uniform and armed, responded to that information by proceeding

to “Huckleberry Trail.”

Andrew J. Duncan observed Morva and then later observed

Corporal Sutphin on “Huckleberry Trail.” Four minutes later,

Duncan heard two gunshots, less than a second apart. David

Carter, who lived nearby, heard shouting, followed by two

gunshots, and saw Corporal Sutphin fall to the ground.

Shortly thereafter, Officer Brian Roe discovered Corporal

Sutphin, who was dead from a gunshot to the back of his head.

discussion of a particular assignment of error.

4
Corporal Sutphin’s gun was still in its holster with the safety

strap engaged. Officer Roe confiscated Corporal Sutphin’s gun

to secure it and continued to search for Morva.

Later that day, Officer Ryan Hite found Morva lying in a

ditch in thick grass. Even though Morva claimed to be unarmed,

officers discovered Quesenberry’s gun on the ground where Morva

had been lying. Morva’s DNA was found on the trigger and

handle of Quesenberry’s gun.

B. Proceedings Before And During Trial

1. Pretrial Motions

Prior to trial, Morva filed a motion for the appointment

of an expert on prison risk assessment, Dr. Mark D. Cunningham.

Although the court had already appointed two psychologists as

mitigation experts, Morva argued that Dr. Cunningham would be

needed to rebut the Commonwealth’s claim that Morva was a

future danger to society and to provide the jury with an

assessment of the likelihood that Morva would commit violence

if he were sentenced to life in prison. Along with the motion,

Morva proffered Dr. Cunningham’s curriculum vitae, an example

of a presentation Dr. Cunningham had given in Commonwealth v.

Jose Rogers, and a declaration from Dr. Cunningham regarding

his qualifications and experience in providing violence risk

assessments and his anticipated testimony. The court denied

the motion, finding that this Court had rejected the

5
introduction of such evidence in Burns v. Commonwealth, 261 Va.

307, 541 S.E.2d 872, cert. denied, 534 U.S. 1043 (2001).

Subsequently, Morva filed a motion requesting the court to

reconsider the denial of his request for the appointment of Dr.

Cunningham as a prison risk assessment expert. Attached to the

motion was a letter from Dr. Cunningham in which he stated that

in forming his opinion concerning the risk of Morva committing

violent acts in prison, he would interpret Morva’s criminal

history, capital murder conviction, and projected life sentence

in light of group statistical data regarding similarly situated

inmates. In the letter, Dr. Cunningham stated that in doing

the assessment, he would take into consideration Morva’s prior

behavior while incarcerated, his security requirements during

prior incarcerations, his age, and his level of educational

attainment. He also stated that preventative interventions and

increased security measures could significantly reduce the

likelihood that Morva would engage in violence in prison and

that such information was essential to his expert opinion.

After hearing arguments, the court denied the motion to

reconsider.

Morva also filed, prior to trial, a motion in which he

argued that lethal injection was unconstitutional. Upon

Morva’s request, the court took the motion under advisement.

Morva failed to present any additional evidence or argument on

6
the matter. The circuit court never ruled on the motion, and

Morva never raised the motion again at any other point while

before the circuit court.

2. Voir Dire

During voir dire, juror Vesta Andrews revealed that her

husband was a retired federal probation officer and that her

son was a federal probation officer in Richmond. Andrews also

stated that her daughter had been the victim/witness director

for the City of Bristol for seven years and had quit a few

months prior. Morva’s attorney asked Andrews if she thought

that she would have a problem serving on the jury. Andrews

responded, “I don’t think so because . . . I’ve heard so much

over the years that I’m very broad minded.” Morva’s attorney

then asked her if her relationship to former and current law

enforcement personnel might affect her feelings on the case.

Andrews stated that she was “not prejudice[d] one way or the

other.” When later asked if she would automatically vote for

the death penalty if the defendant willfully and deliberately

killed a police officer during the course of his duties,

Andrews said that she would have to hear more of the evidence

and that she “could go either way.”

Morva made a motion to strike Andrews for cause due to her

family background in law enforcement. The Commonwealth argued

that a person could not be struck from a jury solely on the

7
basis that she has family members in law enforcement. The

circuit court denied Morva’s request to strike Andrews for

cause, finding she did not show any bias or prejudice against

either side.

Prospective juror Mary Blevins stated in her juror

questionnaire that she might have a problem imposing the death

sentence because of her religious beliefs. During voir dire,

she stated that even if she decided that the death penalty was

appropriate, she did not know if she would be able to sentence

someone to death. When questioned further, she stated that she

probably could in certain circumstances, but that it was

“questionable.” Upon additional inquiry, the circuit court

asked her if she would be able to impose the death penalty

after considering all the evidence. Blevins said that she did

not think that she could impose the death penalty.

The Commonwealth moved to strike Blevins from the jury

panel for cause because she would not be able to impose the

death penalty. Morva objected to Blevins being stricken. The

circuit court sustained the motion due to Blevins’ feelings

about the death penalty.

At the conclusion of the jury selection process, Morva

urged the court to refuse to seat the jury because of the

court’s rulings during the jury selection process. The circuit

court denied the motion, stating that the members of the panel

8
did not show bias or prejudice and that all of the members of

the panel indicated that under the appropriate circumstances,

they could impose either the death penalty or life in prison.

3. Guilt Phase Jury Instructions

At the conclusion of the evidence in the guilt phase of

the trial, Morva objected to Jury Instruction 8A, which stated,

“[Y]ou may infer that every person intends the natural and

probable consequences of his acts.” Morva argued that the

instruction created an “improper presumption that negates or

diminishes the effect of the presumption of innocence.” The

circuit court overruled the objection, stating that the

appellate courts have been clear in their rulings that this is

an appropriate instruction.

4. Penalty Phase

Following a six-day jury trial, the jury found Morva

guilty on all charges, including the three capital murder

charges. The case proceeded to a sentencing hearing. After

the Commonwealth rested during the sentencing phase, Morva

moved to strike the vileness aggravating factor in regard to

the capital offenses. The court denied the motion. Finding

that the Commonwealth had proven both future dangerousness and

vileness aggravating factors, the jury sentenced Morva to death

on all three capital murder convictions.

9
 After the jury’s verdict, Morva filed a motion to set

aside the verdict, arguing that the court erred in not allowing

him to present evidence on prison risk assessment in order to

rebut the Commonwealth’s evidence that Morva was a future

danger to society, especially because the Commonwealth argued

that the killings occurred during an escape attempt. Morva

claimed that the information he submitted from Dr. Cunningham

in support of the appointment of Dr. Cunningham as a prison

risk assessment expert was individualized and particularized

enough to warrant Dr. Cunningham’s appointment. In denying the

motion, the circuit court commented that the proffered evidence

was not relevant, as the Commonwealth had presented evidence

only as to Morva’s prior criminal record, not on Morva’s

possible life in prison. The circuit court denied the motion,

referencing this Court’s decision in Porter v. Commonwealth,

276 Va. 203, 661 S.E.2d 415 (2008).

II. ANALYSIS

A. Method Of Execution

Morva argues that his death sentences should be reversed

because Virginia’s lethal injection process would expose him to

unnecessary pain thereby violating his right against cruel and

unusual punishment.

The record demonstrates that Morva filed a motion and a

proffer in which he argued in part that lethal injection was

10
unconstitutional because the protocol used for the admission of

the drugs in the lethal injection process inflicts cruel and

unusual punishment on the prisoner. Prior to the start of the

trial, Morva informed the court that the United States Supreme

Court was reviewing the issue regarding the constitutionality

of lethal injection protocols in the case of Baze v. Rees.

Because a decision in Baze had not been reached at that time, 3

Morva requested that the court continue the hearing on the

matter and stated that he would readdress the matter after Baze

had been decided. The court continued the matter.

Morva never raised the motion again at any point before,

during, or after the trial. Thus, the circuit court never

ruled on the motion concerning the constitutionality of

execution by lethal injection. Morva’s failure to obtain a

ruling by the circuit court on this matter means that he has

waived the issue on appeal. Rule 5:25; Juniper, 271 Va. at

383-84, 626 S.E.2d at 398.

B. Objections To Jurors

Morva claims that the circuit court erred in not striking

juror Vesta Andrews for cause and in striking juror Mary

Blevins for cause and that those errors resulted in the

empanelling of jurors who were substantially impaired. In

3
The United States Supreme Court decided the appeal in
Baze on April 16, 2008. Baze v. Rees, ___ U.S. ___, 128 S.Ct.

11
United States v. Wood, 299 U.S. 123, 145-46 (1936), the United

States Supreme Court stated that the Constitution does not

require specific procedures or tests for determining the

impartiality of a jury. The qualifications of jurors and the

mode of jury selection are without restriction or limitation,

except for the requirement of an impartial jury. Id.

Morva argues that the circuit court erred in denying his

motion to strike juror Vesta Andrews for cause on the grounds

that she was substantially impaired as a juror due to her

substantial relationship with and connection to law enforcement

personnel. On appeal, we give deference to a trial court

ruling to retain or exclude a prospective juror because the

trial court is in a superior position to judge a prospective

juror’s responses and make a determination on whether it is

proper to seat the juror. Schmitt v. Commonwealth, 262 Va.

127, 139, 547 S.E.2d 186, 195 (2001). Our previous decisions

have generally held that a particular relationship “does not

automatically disqualify a potential juror from being fair and

impartial.” Juniper, 271 Va. at 406, 626 S.E.2d at 411.

Instead, a trial court’s determination must be based upon

consideration of whether the relationship would prevent a

potential juror from performing her duties as a juror, i.e.,

being fair and impartial. Id.

1520 (2008).

12
 Andrews stated that she was not prejudiced one way or the

other based on her relationship with law enforcement personnel.

Further, she stated that she would not automatically vote for

the death penalty, but would need to hear more evidence before

deciding on the appropriate punishment. She stated that she

could consider both life imprisonment and the death penalty.

Accordingly, there was ample evidence to support the circuit

court’s finding that her relationship with law enforcement

personnel would not lead to an inability to be a fair and

impartial juror. As such, we hold that the circuit court did

not abuse its discretion in denying the motion to strike

Andrews from the jury panel for cause.

Morva also assigns error to the circuit court’s decision

to strike juror Mary Blevins because of her stated reservations

about imposing the death penalty. However, the United States

Supreme Court has stated that excluding prospective jurors who

will not vote for the imposition of the death penalty does not

contravene the constitutional requirement of obtaining a jury

that is a fair cross-section of the community. Lockhart v.

McCree, 476 U.S. 162, 174-77 (1986). Instead, “death-

qualifying” a jury serves the state’s legitimate interest in

obtaining a jury that can impartially apply the law in both the

guilt and sentencing phases of trial. Id. at 175-76.

13
 This Court has stated that a prospective juror “should be

excluded for cause” if the juror’s views about the death

penalty would “substantially impair or prevent the performance

of the juror’s duties in accordance with his oath and the

court’s instructions.” Schmitt, 262 Va. at 139, 547 S.E.2d at

195. As stated above, a trial court is given deference on

appellate review of a decision to retain or exclude a

prospective juror. Id.

Prospective juror Blevins stated in her juror

questionnaire that she might have a problem imposing the death

penalty due to her religious faith. During voir dire, she

again stated that she was not sure if she could sentence

someone to death. The circuit court questioned her further,

and she stated that she did not think that she could vote to

impose the death penalty. Thus, there is sufficient evidence

to support a holding by the circuit court that Blevins be

excluded from the jury “for cause” because of her views about

the death penalty. The circuit court did not abuse its

discretion in excluding her for cause.

The circuit court did not abuse its discretion in denying

the motion to exclude Andrews, and it did not abuse its

discretion in granting the motion to exclude Blevins. Morva

cites no other objections to jurors as a basis for his

assignment of error concerning the empanelling of the jury.

14
Thus, there is no support for Morva’s contention that the

circuit court erred in empanelling the jurors who heard his

case.

C. Jury Instruction

Morva contends that the circuit court erred in approving

Jury Instruction 8A, which stated that the jury could “infer

that every person intends the natural and probable consequences

of his acts.” Morva argues that this jury instruction

improperly shifted the burden of proof and negated the

presumption of innocence in violation of both the United States

Constitution and the Constitution of Virginia. This Court held

in Schmitt that this jury instruction concerns only a

permissive inference as opposed to a constitutionally improper

presumption. 262 Va. at 145, 547 S.E.2d at 198-99. This Court

based its reasoning on Sandstrom v. Montana, 442 U.S. 510, 521-

22 (1979), a United States Supreme Court case that addressed

the same issue. Thus, the circuit court did not err in

approving Jury Instruction 8A.

D. Prison Risk Assessment Expert

Morva filed a pretrial “Motion for Appointment of Expert

on Prison Risk Assessment, and to Introduce Evidence on Prison

Violence and Security” (the motion). Along with this motion,

Morva filed a copy of Dr. Cunningham’s curricula vitae, which

contained a summary of his work as a forensic psychologist,

15
copies of PowerPoint slides describing testimony from a

previous case in which Dr. Cunningham had been a witness, and a

declaration from Dr. Cunningham concerning the methodology he

uses in doing a prison risk assessment and his proposed

testimony. The motion was denied. Subsequently, Morva filed a

motion to reconsider, attaching a letter from Dr. Cunningham

that further explained the prison risk assessment he would

perform on Morva and the testimony he would provide. The court

denied the motion to reconsider.

Morva claims that the circuit court erred in denying the

motion and that in doing so the court violated his due process

rights and his rights against cruel and unusual punishment

under the United States Constitution because the testimony that

Dr. Cunningham would have provided was relevant and mitigating

and any relevant mitigating evidence must be admitted. The

Commonwealth asserts that Morva did not establish a

particularized need to have a prison risk assessment expert

appointed on his behalf, and, therefore, the circuit court did

not err in denying Morva’s request to have Dr. Cunningham

appointed as an expert on Morva’s behalf.

Due process requires the Commonwealth of Virginia to

provide indigent defendants with the “basic tools of an

adequate defense.” See Ake v. Oklahoma, 470 U.S. 68, 76-77

(1985). Our Court, in Husske v. Commonwealth, 252 Va. 203,

16
211, 476 S.E.2d 920, 925 (1996), applied the doctrine set forth

in Ake to the appointment of non-mental health experts in

certain circumstances. We held that due process mandates the

appointment of a non-psychiatric expert if the defendant

demonstrates that “the subject which necessitates the

assistance of the expert is ‘likely to be a significant factor

in his defense,’ and that he will be prejudiced by the lack of

expert assistance.” Id. at 211-12, 476 S.E.2d at 925 (quoting

Ake, 470 U.S. at 82-83).

An indigent defendant’s constitutional right to the

appointment of an expert, at the Commonwealth’s expense, is not

absolute. Id. at 211, 476 S.E.2d at 925. The mere fact that a

particular service might be of benefit to an indigent defendant

does not mean that the service is constitutionally required.

Rather, the due process clause requires only that the defendant

not be denied “an adequate opportunity to present [his] claims

fairly within the adversary system.” Id. (quoting Ross v.

Moffitt, 417 U.S. 600, 612 (1974)).

In Husske, 252 Va. at 211-12, 476 S.E.2d at 925-26, our

Court discussed the circumstances under which the Commonwealth

is required, under the Due Process and Equal Protection clauses

of the Fourteenth Amendment, to supply, at its expense, an

expert to assist an indigent criminal defendant. We have

specified that an indigent criminal defendant seeking the

17
assistance of an expert witness must show a “particularized

need” for that assistance. Id. at 212, 476 S.E.2d at 925. It

is the defendant’s burden to demonstrate this “particularized

need” by establishing that an expert’s services would

materially assist him in preparing his defense and that the

lack of such assistance would result in a fundamentally unfair

trial. Id.; accord Green v. Commonwealth, 266 Va. 81, 91-92,

580 S.E.2d 834, 840 (2003). Mere hope or suspicion that

favorable evidence is available is not enough to require that

an expert be appointed. Husske, 252 Va. at 212, 476 S.E.2d at

925. Whether an indigent criminal defendant has made the

required showing of “particularized need” is a determination

that lies within the sound discretion of the trial court. Id.

at 212, 476 S.E.2d at 926.

In essence, Morva claims that the circuit court abused its

discretion in finding that he failed to demonstrate the

“particularized need” necessary for appointment of Dr.

Cunningham as an expert on his behalf. Thus, we must review

Morva’s motion and the proffer concerning Dr. Cunningham’s

testimony that was made to the circuit court to determine if

the circuit court abused its discretion.

In the motion, Morva requested that the court appoint Dr.

Cunningham, or a similar expert, as an expert on the risk of

future dangerousness posed by Morva if incarcerated in a

18
Virginia penitentiary for life. Morva contended that

“[b]ecause the only alternative to the death penalty for a

defendant convicted of capital murder is life imprisonment

without the possibility of parole, the only ‘society’ to which

the defendant can ever pose a ‘continuing serious threat’ is

prison society.” Morva stated that he could not “effectively

rebut assertions of ‘future dangerousness’ by the Commonwealth

unless he [were] given the tools with which to inform the jury

how to make reliable assessments of the likelihood of serious

violence by an individual defendant in [a] prison setting –

including security and the actual prevalence of serious

violence” in a prison setting, which Dr. Cunningham’s testimony

would provide.

Acknowledging Virginia precedent to the contrary, Morva

also argued, in the motion, that this Court’s future

dangerousness precedent misinterprets the controlling

requirements of federal constitutional law by rejecting

evidence concerning the conditions and procedures governing a

defendant’s future confinement. Citing Simmons v. South

Carolina, 512 U.S. 154 (1994), Skipper v. South Carolina, 476

U.S. 1 (1986), and Gardner v. Florida, 430 U.S. 349 (1977),

Morva’s motion claimed that a defendant has a constitutional

right to rebut any evidence upon which the jury might rely in

sentencing him to death and that this constitutional right

19
requires appointment of an expert on prison risk assessment and

“admission of [a] foundation about such critical considerations

as the defendant’s future classification if sentenced to life

imprisonment; the limitations on his freedom within the prison

system; the Virginia Department of Corrections internal safety

and security measures; and the actual rates of serious violence

in Virginia’s prisons.”

In Dr. Cunningham’s declaration, provided as an attachment

to the motion, Dr. Cunningham stated, “A reliable

individualized assessment can be made of the likelihood that

Mr. Morva will commit acts of serious violence if confined for

life in the Virginia Department of Corrections.” He further

acknowledged that he would testify concerning “[g]roup

statistical data (i.e., base rate data)” because the “rates of

violence in similarly situated groups is critically important

to a reliable violence risk assessment and forms the anchoring

point of any individualized risk assessment.” If appointed, he

would testify that “[r]isk is always a function of context,”

and consideration of interventions that can be brought to bear

on inmates in the Virginia Department of Corrections would be

an important part of the violence risk assessment he would

perform. He would also testify that “[t]here are conditions of

confinement available in the Virginia Department of Corrections

that substantially negate the potential/occurrence of serious

20
violence” and that “[s]hould Mr. Morva be identified as a

disproportionate risk of violent or disruptive conduct by the

Virginia Department of Corrections, super-maximum confinement

could be brought to bear.”

Dr. Cunningham further stated “it is necessary to specify

the conditions of confinement in order to make a reliable

violence risk assessment and to address the implicit inference

of the Commonwealth in alleging [a] continuing threat that it

is incompetent to securely confine the defendant in the

future.” He noted that he would testify that “[u]nder an

administrative maximum level of confinement at Red Onion or

other ultra-high security unit, an inmate is single-celled and

locked down twenty-three hours daily, with individual or small

group exercise, and shackled movement under escort. Under such

conditions of security, opportunities for serious violence

toward others are greatly reduced.” He opined that “[s]uch

increased security measures would act to significantly reduce

the likelihood of Mr. Morva engaging in serious violence in

prison.”

In the letter from Dr. Cunningham accompanying the motion

to reconsider, Dr. Cunningham stated that group statistical

data regarding similarly situated inmates interpreted in light

of characteristics specific to Morva is relevant to future

prison conduct. He also expounded upon the scientific validity

21
of making individual assessments based upon group data. He

reiterated that risk is always a function of context or

preventative interventions and that increased security measures

could significantly reduce the likelihood that Morva would

engage in serious violence in prison. He opined that informing

the jury of the capabilities of the Virginia Department of

Corrections to bring higher levels of security to bear was

necessary to provide an individualized risk assessment.

The motion filed by Morva for appointment of Dr.

Cunningham is strikingly similar to the motion for appointment

of Dr. Cunningham filed in the case of Porter. In Porter,

after reviewing the pertinent statutes and our Court’s prior

decisions in which we considered “prison life” evidence, we

approved the circuit court’s ruling declining to appoint Dr.

Cunningham as a prison risk assessment expert. 276 Va. at 243-

55, 661 S.E.2d at 435-42. We reasoned that because such

“prison life” evidence was inadmissible, Porter failed to

satisfy the Husske test regarding appointment of an expert.

Id. at 255, 661 S.E.2d at 442.

Morva claims that the proffer provided by Dr. Cunningham

in this case is distinguishable from the proffer we held

insufficient in Porter. Morva asserts that in Porter, this

Court upheld the circuit court’s refusal to authorize a risk

assessment by Dr. Cunningham because “[a]t no place in the

22
motion [did Porter] proffer that Dr. Cunningham’s statistical

analysis of a projected prison environment [would] ‘focus . . .

on the particular facts of [his] history and background, and

the circumstances of his offense.’ ” Id. at 252, 661 S.E.2d at

440 (citations omitted). Thus, argues Morva, the central

element the Court found to be missing in Porter is undeniably

present here.

Morva points out that, in this case, Dr. Cunningham has

proposed to factor into his statistical analysis individualized

characteristics that have been shown to reduce the likelihood

of future violent behavior in prison, including Morva’s prior

behavior while incarcerated, age, level of educational

attainment, and appraisals of his security requirements during

prior incarceration. Due to the integration of these factors

into the analysis, Morva claims that Dr. Cunningham’s testimony

would have been “individualized” to Morva rather than simply a

generalization applicable to any convicted murderer.

The Commonwealth responds by citing our prior decisions in

Juniper and Burns, as well as Cherrix v. Commonwealth, 257 Va.

292, 513 S.E.2d 642, cert. denied, 528 U.S. 873 (1999), and

Walker v. Commonwealth, 258 Va. 54, 515 S.E.2d 565 (1999),

cert. denied, 528 U.S. 1125 (2000). The Commonwealth notes

that according to this precedent, what a person may expect in

the penal system is not relevant mitigation evidence and argues

23
that Dr. Cunningham’s testimony would have related to

conditions of confinement, not to Morva, and that such

testimony, therefore, was not “particularized” to Morva.

As in Porter and Burns, the Commonwealth in this case

neither proposed nor introduced any evidence concerning Morva’s

prospective life in prison, but limited its evidence on the

future dangerousness aggravating factor to the statutory

requirements consisting of Morva’s prior history and the

circumstances surrounding the offense. See Porter, 276 Va. at

252-53, 661 S.E.2d at 440; Burns, 261 Va. at 339, 541 S.E.2d at

893. Thus, Dr. Cunningham’s anticipated testimony was not in

rebuttal to any specific evidence concerning prison life.

A review of the cases relied upon by Morva in support of

his proposition that he is entitled to present evidence

concerning prison life is instructive. In Gardner, 430 U.S. at

358, the United States Supreme Court held that a defendant is

entitled to due process during the sentencing phase of a

criminal trial. The Court concluded that the defendant was

“denied due process of law when the death sentence was imposed,

at least in part, on the basis of information which he had no

opportunity to deny or explain.” Id. at 362.

In Skipper, 476 U.S. at 3, 8, the United States Supreme

Court held that the trial court erred in excluding evidence

that the defendant was well-behaved in jail between the time of

24
his arrest and trial and that such behavior was probative of

his future adaptability in prison. The Court stated, “a

defendant’s disposition to make a well-behaved and peaceful

adjustment to life in prison is itself an aspect of his

character that is by its nature relevant to the sentencing

determination.” Id. at 7.

In Simmons, 512 U.S. at 156, the United States Supreme

Court held that the defendant was denied due process because

the trial court excluded from evidence the fact that the

defendant was ineligible for parole if sentenced to life in

prison. The Court concluded, based upon evidence in the

record, that the jury likely misunderstood the meaning of

sentencing the defendant to life in prison. Id. at 159-62.

The Court stated that the exclusion of evidence that the

defendant was ineligible for parole “had the effect of creating

a false choice between sentencing petitioner to death and

sentencing him to a limited period of incarceration.” Id. at

161. The Court was particularly focusing upon the fact that

the jury was misled as to the sentencing options. See id. at

159-62.

Morva claims that Skipper and Simmons dictate that he has

a constitutional right to present evidence concerning prison

life to rebut the allegation of his future dangerousness.

However, we have previously addressed this argument and stated

25
in response thereto that “the United States Constitution does

not limit the traditional authority of a court to exclude, as

irrelevant, evidence not bearing on the defendant’s character,

prior record, or the circumstances of his offense.” Burns, 261

Va. at 339, 541 S.E.2d at 893 (internal quotation marks

omitted) (quoting Cherrix, 257 Va. at 309, 513 S.E.2d at 653).

The specific language of the controlling statutes, Code

§§ 19.2-264.2 and 19.2-264.4(C), dictates what evidence is

relevant to the inquiry concerning future dangerousness.

Code § 19.2-264.2 provides in pertinent part:

In assessing the penalty of any person convicted
of an offense for which the death penalty may be
imposed, a sentence of death shall not be imposed
unless the court or jury shall . . . after
consideration of the past criminal record of
convictions of the defendant, find that there is a
probability that the defendant would commit criminal
acts of violence that would constitute a continuing
serious threat to society . . . .

Code § 19.2-264.4(C) similarly provides:

The penalty of death shall not be imposed unless the
Commonwealth [proves] beyond a reasonable doubt that
there is a probability based upon evidence of the
prior history of the defendant or of the
circumstances surrounding the commission of the
offense of which he is accused that he would commit
criminal acts of violence that would constitute a
continuing serious threat to society . . . .

Based upon the language of the controlling statutes, our

Court has previously stated the following:

[T]he relevant inquiry is not whether [a defendant]
could commit criminal acts of violence in the future

26
 but whether he would. Indeed, Code §§ 19.2-264.2 and
–264.4(C) use the phrase “would commit criminal acts
of violence.” Accordingly, the focus must be on the
particular facts of [a defendant’s] history and
background, and the circumstances of his offense. In
other words, a determination of future dangerousness
revolves around an individual defendant and a
specific crime. Evidence regarding the general
nature of prison life in a maximum security facility
is not relevant to that inquiry, even when offered in
rebuttal to evidence of future dangerousness . . . .

Burns, 261 Va. at 339-40, 541 S.E.2d at 893. Stated

differently, Code §§ 19.2-264.2 and 19.2-264.4(C) do not put at

issue the Commonwealth’s ability to secure the defendant in

prison. The relevant evidence surrounding a determination of

future dangerousness consists of the defendant’s history and

the circumstances of the defendant’s offense. Code § 19.2-

264.2; Code § 19.2-264.4(C).

To be admissible, evidence relating to a prison

environment must connect the specific characteristics of the

particular defendant to his future adaptability in the prison

environment. Juniper, 271 Va. at 427, 626 S.E.2d at 424. It

must be evidence peculiar to the defendant’s character,

history, and background in order to be relevant to the future

dangerousness inquiry. Id. at 426, 626 S.E.2d at 423-24.

Conditions of prison life and the security measures utilized in

a maximum security facility are not relevant to the future

dangerousness inquiry unless such evidence is specific to the

defendant on trial and relevant to that specific defendant’s

27
ability to adjust to prison life. Id. at 426-27, 626 S.E.2d at

423-24.

Increased security measures and conditions of prison life

that reduce the likelihood of future dangerousness of all

inmates is general information that is irrelevant to the

inquiry required by Code §§ 19.2-264.2 and 19.2-264.4(C). See

id.; Porter, 276 Va. at 252, 661 S.E.2d at 440. The

generalized competence of the Commonwealth to completely secure

a defendant in the future is not a relevant inquiry. Our

precedent is clear that a court should exclude evidence

concerning the defendant’s diminished opportunities to commit

criminal acts of violence in the future due to the security

conditions in the prison. Burns, 261 Va. at 339-40, 541 S.E.2d

at 893-94. We decline Morva’s invitation to overrule or ignore

that precedent.

With this precedent in mind, we examine the proffered

testimony of Dr. Cunningham. It is true that, in this case,

unlike Porter, Dr. Cunningham proposed to provide testimony

that concerns Morva’s history and background, prior behavior

while incarcerated, age and educational attainment, and such

factors might bear on his adjustment to prison. However, other

testimony Dr. Cunningham proposed to give, and to rely upon in

giving a prison risk assessment for Morva, such as potential

security interventions that “could be brought to bear” upon

28
Morva, and the rates of assaults in the Virginia Department of

Corrections, is, by statute, not relevant to the determination

the jury has to make concerning Morva’s future dangerousness

and therefore would not be admissible evidence.

Dr. Cunningham proposed to testify about Virginia

Department of Corrections’ procedures and security

interventions that would act to significantly reduce the

likelihood of an inmate engaging in serious violence in prison.

However, Dr. Cunningham does not claim that the use or

effectiveness of such interventions is related in any way to

Morva’s individual history, conviction record, or circumstances

of his offense. For example, Dr. Cunningham stated that he

would testify that “[u]nder an administrative maximum level of

confinement at Red Onion or other ultra-high security unit, an

inmate is single-celled and locked down twenty-three hours

daily, with individual or small group exercise, and shackled

movement under escort. Under such conditions of security,

opportunities for serious violence toward others are greatly

reduced.”

The fact that being an inmate in a single cell, locked

down twenty-three hours a day, with individual or small group

exercise, and shackled movement under escort would greatly

reduce opportunity for serious violence toward others, is not

particular to Morva. It is true for any other inmate as well,

29
and it is evidence of the effectiveness of general prison

security, which is not relevant to the issue of Morva’s future

dangerousness. Whether offered by an expert, or anyone else,

evidence of prison life and the security measures used in a

prison environment are not relevant to future dangerousness

unless it connects the specific characteristics of a particular

defendant to his future adaptability in the prison environment.

See Juniper, 271 Va. at 427, 626 S.E.2d at 424.

According to Dr. Cunningham, general factors concerning

prison procedure and security that are not individualized as to

Morva’s prior history, conviction record, or the circumstances

of his offense are essential to Dr. Cunningham’s expert opinion

on prison risk assessment. Pursuant to our precedent, Dr.

Cunningham’s proposed testimony concerning prison life is

inadmissible. Thus, there is support for the circuit court’s

ruling that Morva failed to show the “particularized need,” for

Dr. Cunningham’s testimony, necessary to meet the Husske test.

Taking into consideration the inadmissibility of the

evidence that Morva sought to introduce through Dr. Cunningham,

the lack of that expert assistance did not result in a

fundamentally unfair trial. Accordingly, the circuit court did

not err or abuse its discretion in denying the motion to

appoint Dr. Cunningham as an expert for Morva.

30
 E. Sufficiency Of The Evidence To Show Vileness

Morva argues that the circuit court erred in denying his

motion to strike vileness as an aggravating factor for the

imposition of the death penalty. Morva contends that the facts

in this case are insufficient to establish vileness as an

aggravating factor because both victims were killed with a

single gunshot wound and the offense did not include physical

or psychological torture, attempts to disguise the crime, or a

particularly brutal manner of killing. The Commonwealth argues

that Morva’s gratuitous killings of persons who posed no threat

to him, solely to escape lawful custody and to avoid facing

trial for other crimes, were outrageously or wantonly vile in

that they involved depravity of mind demonstrated by moral

turpitude and psychical debasement far beyond ordinary malice

and premeditation.

Code § 19.2-264.4(C) states as follows:

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 or of the
circumstances surrounding the commission of the
offense of which he is accused that he would commit
criminal acts of violence that would constitute a
continuing serious threat to society, or that his
conduct in committing the offense was outrageously or
wantonly vile, horrible or inhuman, in that it
involved torture, depravity of mind or aggravated
battery to the victim.

31
(Emphasis added). The Commonwealth may prove “vileness” by

proving that the crime involved torture, depravity of mind, or

aggravated battery to the victim. Id. Proof of any one factor

is sufficient to support a finding of vileness and a sentence

of death. Hedrick v. Commonwealth, 257 Va. 328, 339-40, 513

S.E.2d 634, 640, cert. denied, 528 U.S. 952 (1999). In this

case, the Commonwealth focused on proving that Morva’s conduct

in committing the offenses involved depravity of mind.

Depravity of mind is defined as “a degree of moral

turpitude and psychical debasement surpassing that inherent in

the definition of ordinary legal malice and premeditation.”

Smith v. Commonwealth, 219 Va. 455, 478, 248 S.E.2d 135, 149

(1978), cert. denied, 441 U.S. 967 (1979). Although a single

gunshot wound, causing instantaneous death, does not constitute

an aggravated battery, such an offense may involve depravity of

mind. See Hedrick, 257 Va. at 338-39, 513 S.E.2d at 640;

Thomas v. Commonwealth, 244 Va. 1, 24-25, 419 S.E.2d 606, 619

(1992). This Court has upheld a circuit court’s finding of

vileness based on depravity of mind for a murder involving

execution-style killings where the defendant failed to show any

remorse or regret for his actions, Thomas, 244 Va. at 24-25,

419 S.E.2d at 619-20, and for a murder involving a killing that

was unprovoked. Green, 266 Va. at 106, 580 S.E.2d at 848-49.

32
 The evidence must be reviewed in the light most favorable

to the Commonwealth in determining whether there was sufficient

evidence to support a finding that Morva’s conduct involved

depravity of mind. See Gray, 274 Va. at 295, 645 S.E.2d at

452. Morva’s words contained in a letter written from jail to

his mother described his pre-planned intent to kill guards.

Such planning is evidence of Morva’s depravity of mind. See

Teleguz v. Commonwealth, 273 Va. 458, 482-83, 643 S.E.2d 708,

723-24 (2007), cert. denied, ___ U.S. ___, 128 S.Ct. 1228

(2008); Lewis v. Commonwealth, 267 Va. 302, 315-16, 593 S.E.2d

220, 227-28 (2004); Thomas, 244 Va. at 25 n.10, 419 S.E.2d at

620 n.10.

Morva viciously attacked a guard who had taken Morva to

receive medical treatment, fracturing the guard’s face with a

metal toilet paper holder that Morva had removed from the wall.

Neither of the men killed by Morva posed a physical threat to

him. Morva shot McFarland, who was passive and unarmed, in the

face at point-blank range; he shot Corporal Sutphin in the back

of the head while Sutphin’s gun was still holstered.

Additionally, Morva had several hours from the time he shot

McFarland to consider the consequences of his actions before he

shot Corporal Sutphin. This fact indicates a lack of remorse

or regret for his actions.

33
 Thus, we hold that the evidence was sufficient to support

a finding that Morva’s conduct involved depravity of mind in

that he acted with a degree of moral turpitude and psychical

debasement surpassing that inherent in the definition of

ordinary legal malice and premeditation. A finding of

depravity of mind is sufficient by itself to support a finding

of vileness under Code § 19.2-264.2; therefore, the circuit

court did not err in denying Morva’s motion to strike vileness

as an aggravating factor for the imposition of the death

penalty.

F. Statutory Review Under Code § 17.1-313

Morva contends that the jury and the circuit court erred

in sentencing him to death because the sentences were the

result of passion, prejudice, or other arbitrary factors and

because the sentences were excessive or disproportionate to

sentences in similar cases. As this assignment of error is

nearly identical to the language contained in Code § 17.1-

313(C), we will address it as we conduct our statutorily

mandated review. The overarching purpose of this review is to

“assure the fair and proper application of the death penalty

statutes in this Commonwealth and to instill public confidence

in the administration of justice.” Akers v. Commonwealth, 260

Va. 358, 364, 535 S.E.2d 674, 677 (2000).

1. Passion, Prejudice, or Arbitrary Factors

34
 After conducting a thorough review, we find that the

record supports Morva’s sentences of death. The record does

not indicate that the jury or the circuit court was influenced

to sentence Morva to death as the result of any passion,

prejudice, or any other arbitrary factors.

2. Excessive and Disproportionate Sentence

Code § 17.1-313(C)(2) mandates that this Court “consider

and determine . . .[w]hether the sentence of death is excessive

or disproportionate to the penalty imposed in similar cases,

considering both the crime and the defendant” even when no

argument has been presented. Porter, 276 Va. at 267, 661

S.E.2d at 448; Gray, 274 Va. at 303, 645 S.E.2d at 456;

Juniper, 271 Va. at 432, 626 S.E.2d at 427. The purpose of

this review is to 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.’ ” Lovitt v. Commonwealth, 260 Va. 497, 518,

537 S.E.2d 866, 880 (2000), cert. denied, 534 U.S. 815 (2001)

(quoting Johnson v. Commonwealth, 259 Va. 654, 683, 529 S.E.2d

769, 786 (2000)). Additionally, this review is to help this

Court “identify and invalidate the aberrant sentence of death.”

Lewis, 267 Va. at 312, 593 S.E.2d at 226. However, this review

is not designed to “insure complete symmetry among all death

penalty cases.” Muhammad v. Commonwealth, 269 Va. 451, 532,

35
619 S.E.2d 16, 63 (2005), cert. denied, 547 U.S. 1136 (2006)

(quoting Orbe v. Commonwealth, 258 Va. 390, 405, 519 S.E.2d

808, 817 (1999), cert. denied, 529 U.S. 1113 (2000)).

In conducting this review, we take into account the facts

of the case and of the defendant, Morva. For this review, we

have focused on those cases where, after a finding of both

aggravating factors, a sentence of death was imposed: (1) when

the murder was committed by a prisoner in a state or local

correctional facility, Remington v. Commonwealth, 262 Va. 333,

551 S.E.2d 620 (2001), cert. denied, 535 U.S. 1062 (2002), Lenz

v. Commonwealth, 261 Va. 451, 544 S.E.2d 299, cert. denied, 543

U.S. 1003 (2001), (2) when the murder was of a law enforcement

officer, Smith v. Commonwealth, 239 Va. 243, 389 S.E.2d 871,

cert. denied, 498 U.S. 881 (1990), and (3) when the murder is

of more than one person within a three-year period. Walker,

258 Va. 54, 515 S.E.2d 565 (1999). In accordance with Code

§ 17.1-313(E), this Court has also reviewed similar cases in

which a life sentence was imposed. Based on this review, we

have determined that Morva’s sentence was not excessive or

disproportionate to sentences imposed in capital murder cases

for comparable crimes.

III. CONCLUSION

Upon review of the record and upon consideration of the

arguments presented, we find no reversible error in the

36
judgment of the circuit court. Furthermore, we find no reason

to set aside the sentences of death. We will, therefore,

affirm the judgment of the circuit court.

Affirmed.

JUSTICE KOONTZ, with whom JUSTICE KEENAN joins, dissenting.

I respectfully dissent. Today, the majority effectively

adopts a per se rule that expert prison risk assessments are

inadmissible to rebut evidence of future dangerousness in a

capital murder case.

In light of the facts surrounding the three capital

offenses committed by William Charles Morva, as recounted here

by the majority opinion and proven beyond a reasonable doubt at

his trial, there can be no doubt that the issue of primary

concern and significance for the defense from day one was

whether Morva would ultimately receive a sentence of death or a

sentence of life without the possibility of parole under the

applicable Virginia statutes. See Porter v. Commonwealth, 276

Va. 203, 273-74, 661 S.E.2d 415, 452 (2008) (Koontz, J.,

dissenting) (outlining Virginia statutory scheme applicable to

capital murder cases). Early in the proceedings in the circuit

court, the Commonwealth made that concern a reality by

notifying Morva’s appointed attorneys that it would seek the

death penalty in Morva’s case in accord with the provisions of

Code § 19.2-264.2, which provide the aggravating factors of

37
future dangerousness or vileness so as to make a defendant

convicted of capital murder in Virginia eligible for the death

penalty. In response, Morva filed a motion for the appointment

of Dr. Mark D. Cunningham, a forensic psychologist, to perform

a prison risk assessment on Morva and to permit Dr. Cunningham

to testify as an expert on Morva’s behalf at trial. For the

reasons that follow, in my view the circuit court erred in

denying Morva’s motion, resulting in a fundamentally unfair

trial in the sentencing phase of Morva’s trial.

As recounted in detail by the majority, the events which

led to the murders in this case began when Morva, who was

confined in a local county jail pending trial on unrelated

criminal charges, violently assaulted Sheriff’s Deputy Russell

Quesenberry at a local hospital where the officer had taken

Morva for medical treatment. Morva armed himself with the

officer’s gun and escaped from the officer’s custody.

Throughout the trial, the Commonwealth made reference to

this escape as a significant fact to be considered in the

jury’s determination of Morva’s future dangerousness and the

imposition of the death sentence. The Commonwealth argued in

response to Morva’s motion to strike the Commonwealth’s

evidence regarding future dangerousness that: “We have the

Defendant who is an escaped prisoner, who beat his guard and

took his gun. He then used that gun to shoot two people on two

38
different days. And he kept that gun until the very end when

he was captured again. That alone would be sufficient for the

jury to find future dangerousness.”

Later, during oral argument at sentencing, the

Commonwealth told the jury that: “It took one month of jail,

one month of county jail, to get [Morva] ready to kill a

guard. . . . [A] prospect of life in prison is very

frightening. If one month causes you to develop the heart and

mind to kill a jail guard, in one year and its done, and you’re

killing people, what is the prospect of life in prison going to

cause that person to feel justified in doing to those prison

guards?” Additionally, the Commonwealth told the jury that:

“we know what [Morva] does when he escapes, he hurts people and

murders people. . . . You know that [Morva] will do anything to

escape. . . . Could there be anything worse? Yes, there could

be one thing. And that would be if [Morva] ever hurt or killed

another person.”

Thirty years ago, in Smith v. Commonwealth, 219 Va. 455,

477, 248 S.E.2d 135, 148 (1978), in rejecting a constitutional

challenge for vagueness of Virginia’s future dangerousness

factor, we made these pertinent observations: “[A]ny

sentencing authority must predict a convicted person’s probable

future conduct when it engages in the process of determining

what punishment to impose. . . . What is essential is that the

39
jury have before it all possible relevant information about the

individual defendant whose fate it must determine.” (Quoting

Jurek v. Texas, 428 U.S. 262, 274-76 (1976)). In the context

of deciding between a sentence of death or a sentence of life

without the possibility of parole, it simply stands to reason

that a jury would engage in a prediction of the defendant’s

probable future conduct at least to the extent that such a

favorable prediction might be persuasive in determining that a

life sentence, rather than a death sentence, would be the

appropriate punishment in a particular case.

In this case, the Commonwealth expressly sought to

persuade the jury to predict that Morva presented a future

danger to society sufficient to warrant the death penalty in

large part because he would not adapt to a life sentence in

prison and would either escape and commit further violent acts

or commit such acts on prison guards. See Frye v.

Commonwealth, 231 Va. 370, 392, 345 S.E.2d 267, 283 (1986)

(plan to escape relevant to future dangerousness inquiry). In

the absence of Dr. Cunningham’s prison risk assessment and

testimony, Morva was not permitted the means to effectively

respond to the Commonwealth’s assertions. Experience with jury

trials in the trial courts would surely dictate the conclusion

that Morva was left without the constitutionally required

“basic tools of an adequate defense” that comport with a

40
defendant’s due process rights. See Ake v. Oklahoma, 470 U.S.

68, 76-77 (1985). Indeed, in my view, Morva was left with

little, if any, defense to the imposition of the death penalty

in his case.

Following the Supreme Court’s decision in Ake, we have

decided a number of cases addressing the constitutional

requirements of due process when an indigent defendant seeks,

at the Commonwealth’s expense, the appointment of non-mental

health experts. In Husske v. Commonwealth, 252 Va. 203, 476

S.E.2d 920 (1996), we rejected an indigent defendant’s request

for the appointment, at the Commonwealth’s expense, of an

expert to help him challenge the Commonwealth’s forensic DNA

evidence. As pertinent here, we held that due process mandates

the appointment of the requested expert if the defendant

demonstrates that “the subject which necessitates the

assistance of the expert is ‘likely to be a significant factor

in his defense,’ and that he will be prejudiced by the lack of

expert assistance.” Id. at 211-12, 476 S.E.2d at 925 (quoting

Ake, 470 U.S. at 82-83). In Husske we reasoned that “an

indigent defendant who seeks the appointment of an expert, at

the Commonwealth’s expense, must show a particularized need for

such services.” (Emphasis added). Id. at 213, 476 S.E.2d at

926.

41
 Following our decision in Husske, we have decided a series

of cases that expound upon the concept of a “particularized

need” for the appointment of a prison risk assessment expert to

assist a defendant in the defense of a future dangerousness

assertion by the Commonwealth. In Burns v. Commonwealth, 261

Va. 307, 338, 541 S.E.2d 872, 892, cert. denied, 534 U.S. 1043

(2001), the Court considered the issue of expert testimony

regarding generalized “daily inmate routine [and] general

prison conditions.” In that case, the Court rejected the

appointment of a risk assessment expert to rebut the

Commonwealth’s future dangerousness assertions because the

expert’s testimony failed to “focus . . . on the particular

facts of [the defendant’s] history and background, and the

circumstances of his offense.” We reasoned that evidence

regarding the “general nature of prison life” is not relevant

to the determination of future dangerousness. Id. at 340, 541

S.E.2d at 893.

Subsequently, in Bell v. Commonwealth, 264 Va. 172, 201,

563 S.E.2d 695, 714 (2002), we held that the defendant had not

shown a “particularized need” for the expert who would have

offered testimony concerning the conditions of prison life and

the kinds of security features utilized in a maximum security

facility. We reasoned in that case that such general evidence,

not specific to the defendant, was not relevant to the issue of

42
the defendant’s peaceful adjustment to life in prison in the

context of a future dangerousness determination by a jury.

Significantly, however, we preferenced our holding with the

acknowledgment that “we do not dispute that [the defendant’s]

‘future adaptability’ in terms of his disposition to adjust to

prison life is relevant to the future dangerousness inquiry.”

Id.

In Juniper v. Commonwealth, 271 Va. 362, 626 S.E.2d 383,

cert. denied, 549 U.S. 960 (2006), the Court held that the

jury’s “determination of future dangerousness revolves around

an individual defendant and a specific crime.” We again

stressed that in admitting expert testimony as relevant in

rebuttal of the Commonwealth’s attempt to prove future

dangerousness, “such evidence should ‘concern the history or

experience of the defendant.' ” Id. at 425-26, 626 S.E.2d at

423 (quoting Cherrix v. Commonwealth, 257 Va. 292, 310, 513

S.E.2d 642, 653, cert. denied, 528 U.S. 873 (1999)). In

Juniper, we rejected the proposed expert opinion because

[n]either the actual proffer, counsel’s argument, nor [the
expert’s] explanations . . . was specific to [the
defendant]. . . . [The expert] offered nothing to the
trial court to support his opinion as being based on [the
defendant’s] individual characteristics that would affect
his future adaptability in prison and thus relate to a
defendant-specific assessment of future dangerousness.

Id. at 427, 626 S.E.2d at 424 (internal quotation marks

omitted).

43
 More recently, in Porter v. Commonwealth, 276 Va. 203, 661

S.E.2d 415 (2008), the Court considered the motion of a

defendant convicted of capital murder for the appointment of a

prison risk assessment expert to assist the defendant in

defending against the Commonwealth’s assertion of future

dangerousness that would qualify the defendant for the death

sentence. After reviewing the pertinent statutes regarding the

determination of future dangerousness, our prior precedent, and

Porter’s actual proffer in support of his motion for the

appointment of the expert, a majority of this Court held that

the trial court did not abuse its discretion in denying

Porter’s motion for the appointment of the expert. The

majority held that:

Porter’s proffer in the Prison Expert Motion
fails to address the statutory factors under Code
§§ 19.2-264.2 and 19.2-264.4(C) as being
individualized and particularized as to Porter’s
prior history, conviction record and the
circumstances of the crime. As our precedent would
render inadmissible the statistical speculation he
does offer, Porter has failed to show the
“particularized need” necessary to meet the Husske
test. In light of the inadmissibility of the
evidence that [Porter] sought to introduce through
the expert, he also failed to establish how he would
be prejudiced by the lack of the expert’s assistance.

Id. at 255, 661 S.E.2d at 442 (internal quotation marks and
citation omitted).

Code § 19.2-264.2, in pertinent part, provides that:

In assessing the penalty of any person convicted of
an offense for which the death penalty may be

44
 imposed, a sentence of death shall not be imposed
unless the court or jury shall (1) after
consideration of the past criminal record of
convictions of the defendant, find that there is a
probability that the defendant would commit criminal
acts of violence that would constitute a continuing
serious threat to society.

(Emphasis added.)

Code § 19.2-264.4(C), in pertinent part, also provides

that:

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 or of the
circumstances surrounding the commission of the
offense of which he is accused that he would commit
criminal acts of violence that would constitute a
continuing serious threat to society.

(Emphasis added.)

In Porter, a majority of the Court reasoned that “[t]he

plain directive of these statutes is that the determination of

future dangerousness is focused on the defendant’s ‘past

criminal record,’ ‘prior history’ and ‘the circumstances

surrounding the commission of the offense.’ ” The majority

further observed that “[t]hese standards defining the future

dangerousness aggravating factor are the basis of our earlier

decisions [in Burns, Bell, and Juniper] which considered

motions for appointment of prison risk experts or the proffer

of prison risk evidence.” 276 Va. at 247, 661 S.E.2d at 437.

45
 Beyond question, these statutes provide the standards

defining the future dangerousness aggravating factor which, in

the absence of proof of the alternate aggravating factor of

vileness, the Commonwealth must prove beyond a reasonable doubt

in order to qualify a defendant convicted of capital murder for

the imposition of a death sentence. These statutes are equally

clear, however, that in the absence of such proof by the

Commonwealth “a sentence [or penalty] of death shall not be

imposed.” Moreover, Code § 19.2-264.4(B) permits the

introduction of evidence “relevant to sentence” and “any other

facts in mitigation of the offense.” Thus, while the “focus”

of the future dangerousness determination is statutorily

directed to the defendant’s past criminal record, prior

history, and circumstances surrounding the commission of the

offense, these statutes do not, and in my view constitutionally

could not, limit the defendant’s right to produce relevant

evidence either in defense of the Commonwealth’s assertions

regarding the future dangerousness determination by the jury or

the jury’s ultimate consideration to impose the death sentence

rather than a life sentence without the possibility of parole.

With regard to expert prison risk assessments, this Court

has not held in our prior decisions that all such expert

evidence is per se inadmissible. Rather, the Court has taken a

case-by-case approach, beginning with Bell as instructed by

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Husske, to consider the specific motions for the appointment of

a prison risk assessment expert and the proffers of the

expert’s evidence to determine whether the particular expert

would provide evidence sufficiently “particularized” to the

defendant. Mindful that the sole purpose of such an assessment

if favorably concluded by the expert is to assist the

defendant’s defense to the Commonwealth’s assertion that the

death sentence should be imposed on him by the jury, it follows

that a per se rule of inadmissibility would violate a

defendant’s due process rights to a fair trial with regard to

the jury’s consideration of imposing a life sentence without

the possibility of parole rather than a death sentence. In

other words, when an expert on prison risk assessments can

provide evidence to assist the jury to predict that a

particular defendant likely would not commit criminal acts of

violence that would constitute a continuing serious threat to

society while serving a life sentence in prison, it must follow

that such evidence is “a significant factor in his defense,”

Husske, 252 Va. at 212, 476 S.E.2d at 925, and the “basic tools

of an adequate defense.” Ake, 470 U.S. at 77.

The requested expert in Porter was the same Dr. Cunningham

as requested by Morva in the present case, and the majority

decision in Porter is the primary focus of the assertions made

by Morva on appeal. In Porter, the thrust of the proffer of

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Dr. Cunningham’s proposed evidence was a statistical analysis

of the prison environment in which Porter would serve a life

sentence and a resulting analysis to project rates of prison

inmate violence. The majority of the Court stressed, however,

that “[n]othing in Porter’s motion is a proffer of an

‘individualized’ or ‘particularized’ analysis of Porter’s

‘prior criminal record,’ ‘prior history,’ his prior or current

incarceration, or the circumstances of the crime for which he

has been convicted.” Id. at 252, 661 S.E.2d at 440. Morva

maintains in this appeal that Dr. Cunningham’s proffered

evidence is sufficiently particularized to him.

Following the decision in Porter, and mindful that the

foundation of the issue is a defendant’s due process rights to

a fundamentally fair trial including the sentence determination

by the jury, it arguably remained unclear precisely the manner

in which an expert’s prison risk assessment can be made

sufficiently “particularized” to a defendant so as to be

admissible evidence in the defendant’s defense to the

Commonwealth’s assertion that a death sentence should be

imposed on him. Today, the majority in the present case,

states that “[t]o be admissible, evidence relating to a prison

environment must connect the specific characteristics of the

particular defendant to his future adaptability in the prison

environment.” The majority further instructs that

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“[c]onditions of prison life and the security measures utilized

in a maximum security facility are not relevant to the future

dangerousness inquiry unless such evidence is specific to the

defendant on trial and relevant to that specific defendant’s

ability to adjust to prison life.” In my view, while the

majority rejects Morva’s proffered evidence, such evidence

facially appears to meet this test for admissibility announced

by the majority.

As in Porter, the scientific basis and methodology used by

Dr. Cunningham, and similar experts, in assessing a particular

defendant in terms of presenting a future danger to society

while serving a life sentence is not challenged in this appeal.

Nor are Dr. Cunningham’s qualifications as an expert in

conducting prison risk assessments at issue. Unlike the

expert’s proffer in Porter, in the present case Dr.

Cunningham’s proffered evidence would include a statistical

analysis of specific characteristics that have been shown to

reduce the likelihood of future violent behavior in prison,

including Morva’s prior behavior while incarcerated, age,

education, and appraisals of his security requirements during

prior incarceration.

The majority notes that Dr. Cunningham’s evidence

regarding security measures in the prison environment the

effect of which greatly reduce the opportunity for violent acts

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between or by inmates, is evidence of the effectiveness of

general prison security and is not relevant to Morva’s future

dangerousness. Dr. Cunningham’s evidence, however, also

addresses whether Morva would likely conform to those security

measures. Thus, the majority’s concern presents an issue

regarding the weight of the evidence, a question for the jury,

rather than the admissibility or relevance of that evidence.

The thrust of Dr. Cunningham’s proffered evidence is that

it can be statistically established that an inmate with Morva’s

particular characteristics and background is not likely to

commit future acts of violence so as to pose a future danger to

society while confined to a maximum security prison and serving

a life sentence. In my view, Dr. Cunningham’s proffered

evidence is sufficiently specific to Morva in the “context” of

the secure prison environment in which he would surely serve a

life sentence without the possibility of parole and thus was

admissible evidence at his trial.

By holding that this evidence regarding “context” is

inadmissible, the majority effectively excludes all future

prison risk assessment evidence and establishes a per se rule

of inadmissibility because, as Dr. Cunningham stated, the

conditions of confinement are a necessary component of such an

assessment. The majority fails to recognize that when

calculating the risk of future violent acts, “prison life”

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evidence is relevant and essential to achieving an

individualized prediction.

For these reasons, I would hold that the circuit court

erred in denying the motion to appoint Dr. Cunningham as an

expert to assist Morva in his defense to the Commonwealth’s

assertions to the jury that the death sentence should be

imposed upon Morva. See Skipper v. South Carolina, 476 U.S. 1,

5 n.1 (1986) (noting that “[w]here the prosecution specifically

relies on a prediction of future dangerousness in asking for

the death penalty, it is not only the rule . . . that requires

that the defendant be afforded an opportunity to introduce

evidence on this point; it is also the elemental due process

requirement.”)

Unlike the circumstances in Porter, in this case the jury

also determined that Morva’s conduct in committing the murders

satisfied the vileness aggravating factor as defined in Code

§ 19.2-264.4(C). I do not disagree with the majority’s holding

that the evidence was sufficient to support a finding of

vileness in this case and, therefore, that the circuit court

did not err in denying Morva’s motion to strike regarding that

aggravating factor. The question then becomes whether under

those circumstances any error in denying Morva’s motion for the

appointment of the prison risk assessment expert was harmless.

As a general proposition, because that error is of

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constitutional dimension, a reversal is required unless the

appellate court determines that the error was harmless beyond a

reasonable doubt. That determination involves an analysis of

whether there is a reasonable possibility that the error might

have contributed to the jury’s determination to impose the

death sentence, rather than a life sentence without the

possibility of parole. See Pitt v. Commonwealth, 260 Va. 692,

695, 539 S.E.2d 77, 78 (2000); see also Chapman v. California,

386 U.S. 18, 24 (1967).

Under the Virginia statutory scheme applicable to capital

murder cases, a finding of one or both of the aggravating

factors of future dangerousness or vileness under Code § 19.2-

264.4(C) does not mandate the imposition of the death penalty.

Rather a defendant convicted of capital murder in Virginia

becomes eligible for the death penalty only if the Commonwealth

proves beyond a reasonable doubt one or both of these

aggravating factors. Clearly, the jury’s finding of vileness

alone made Morva eligible for the death penalty. The jury

nevertheless had the responsibility based on all the evidence

to determine whether to impose the penalty of death or life

without the possibility of parole. Code § 19.2-264.4(A). And

“[i]n the event the jury cannot agree as to a penalty, the

court shall . . . impose a sentence of imprisonment for life.”

Code § 19.2-264.4(E).

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 Undoubtedly, under the particular facts surrounding the

horrific crimes committed by Morva a jury might well have

imposed a penalty of death upon Morva once it determined that

the Commonwealth had sufficiently proven that Morva’s conduct

satisfied the vileness aggravating factor. It is just as

clear, however, that in making that determination the jury

would have engaged in a degree of predicting Morva’s probable

future conduct in prison if the jury were to impose a life

sentence rather than a death sentence.

As a result of the circuit court’s rejection of Dr.

Cunningham’s expert testimony, Morva was denied the means to

permit the jury the opportunity to factor that evidence into

its prediction of Morva’s probable conduct in prison if a life

sentence without the possibility of parole were to be imposed

upon him. While the jury may not have given Dr. Cunningham’s

opinion significant weight, it cannot be said that the error in

denying Morva’s evidence of the expert’s prison risk assessment

might not have contributed to the jury’s determination to

impose the death sentence. In death penalty cases an

“underlying concern is whether issues are presented in a manner

that could influence the jury to assess a penalty based upon

‘fear rather than reason.’ ” Yarbrough v. Commonwealth, 258

Va. 347, 369, 519 S.E.2d 602, 613 (1999) (quoting Farris v.

Commonwealth, 209 Va. 305, 307, 163 S.E. 575, 576 (1968)); see

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also Gardner v. Florida, 430 U.S. 349, 358 (1977) (“vital

importance to the defendant and the community that any decision

to impose the death sentence be, and appear to be, based on

reason rather than caprice or emotion”). In this case, the

Commonwealth urged the jury to consider Morva’s prior escape as

a significant factor in the determination that the death

sentence should be imposed, and implicitly suggested that it

would be reasonable to fear that Morva if unable to escape in

the future would “feel justified [in killing] prison guards.”

In that context, there is a reasonable possibility that in the

absence of Dr. Cunningham’s evidence the jury decided to impose

the death sentence, rather than a life sentence, based on the

“fear” that Morva would escape again or harm another prison

guard. Accordingly, I would hold that the error in denying

Morva’s requested expert prison risk assessment was not

harmless.

Capital murder cases are always horrible in their impact

on the victims, their families, and our general society. As in

Morva’s case, such cases generally garner no sympathy for the

defendant and deserve none. Nevertheless, civilized society

does not consider the protection of due process rights to a

fair trial as so fickle a concept that a defendant convicted of

a capital offense should be subjected to a death penalty where

it can be reasonably debated that a requested expert’s prison

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risk assessment is sufficiently “particularized” to the

defendant. Such a risk assessment would afford the defendant

the means to assist the jury in its determination whether a

life sentence without the possibility of parole, rather than a

death sentence, would be the appropriate penalty for the crimes

committed by the defendant.

For these reasons, I would reverse the circuit court’s

judgment, set aside the sentences of death imposed upon Morva,

and remand this case to the circuit court for a new sentencing

hearing in which Morva would have the benefit of the requested

expert’s prison risk assessment.

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