Morrisette v. Commonwealth

Present: All the Justices

WILLIAM WILTON MORRISETTE, III
OPINION BY
v. Record Nos. 020323 & 020324 JUSTICE CYNTHIA D. KINSER
SEPTEMBER 13, 2002
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
William C. Andrews, III, Judge

A jury convicted William Wilton Morrisette, III, of

the 1980 rape and capital murder of Dorothy M. White. At

the conclusion of the penalty phase of a bifurcated trial,

the jury fixed Morrisette’s punishment at death on the

capital murder charge and at life imprisonment on the rape

charge. The jury based its sentence of death on findings

of both “future dangerousness” and “vileness.” See Code

§ 19.2-264.2. The trial court sentenced Morrisette in

accordance with the jury verdict.

We have consolidated the automatic review of

Morrisette’s death sentence with his appeal of the capital

murder conviction. Code § 17.1-313(F). We have also

certified Morrisette’s appeal of his rape conviction from

the Court of Appeals and consolidated that appeal with the

appeal of the capital murder conviction. Code § 17.1-409.

After considering the issues raised in Morrisette’s

assignments of error and conducting our mandated review

pursuant to Code § 17.1-313(C), we find no error in the
judgments of the circuit court. Accordingly, we will

affirm Morrisette’s convictions for rape and capital

murder, in violation of Code §§ 18.2-61 and 18.2-31(5),

respectively, and his sentence of death.

I. FACTS

In accordance with well-established principles, we

state the evidence in the light most favorable to the

Commonwealth, the prevailing party at trial. Bell v.

Commonwealth, 264 Va. 172, 178, 563 S.E.2d 695,701 (2002)

(citing Burns v. Commonwealth, 261 Va. 307, 313, 541 S.E.2d

872, 877, cert. denied, ___ U.S. ___, 122 S.Ct. 621 (2001);

Jackson v. Commonwealth, 255 Va. 625, 632, 499 S.E.2d 538,

543 (1998), cert. denied, 525 U.S. 1067 (1999); Roach v.

Commonwealth, 251 Va. 324, 329, 468 S.E.2d 98, 101, cert.

denied, 519 U.S. 951 (1996)). We also accord the

Commonwealth the benefit of all inferences fairly deducible

from the evidence. Id. (citing Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537

(1975)).

A. GUILT PHASE

When Dorothy White did not report for work on the

morning of July 25, 1980, two of her co-workers became

concerned and went to her house trailer, located on Pine

Needle Road in the City of Hampton, to check on her

2
welfare. Upon entering the trailer, they found White’s

body lying on the kitchen floor. Her blouse and bra were

pulled up, exposing her breasts; she was otherwise nude.

Her throat had been cut, and she had sustained several

other wounds. A “milky-looking substance [that] appeared

to be wet” was visible on her pubic hair. The kitchen was

splattered with blood, but there were no signs of a

struggle in any other portion of White’s home nor any

evidence of a forced entry into the dwelling.

An autopsy was performed the next day, during which

samples of White’s hair, blood, and body fluids were

collected from her body by using a Physical Evidence

Recovery Kit (PERK). Testing of those samples revealed the

presence of intact sperm on the swabs taken from White’s

vulva, vagina, and cervix; only a sperm head was found on

the anal swab. The autopsy documented that White had

suffered a slash wound across her throat, which totally

severed her trachea, the right carotid artery, the jugular

vein, and certain muscles in her neck; the wound partially

severed the esophagus. White had also sustained a stab

wound to her neck; three stab wounds to her chest, one of

which penetrated her heart; and stab wounds to her abdomen

and flank, for a total of eight stab wounds. Additional

3
defensive wounds on her hands and legs indicated that White

had attempted to ward away the knife blows.

Several of the wounds individually could have caused

White’s death, but the slash wound to her throat was “fatal

within minutes.” However, despite the lethal nature of

that wound, it did not render White instantly unconscious.

Dr. Faruk B. Presswalla, the forensic pathologist who

performed the autopsy, testified that because the trachea,

or windpipe, was cut, much of the flowing blood traveled

down that airway. He described the effect as “sort of like

drowning in your own blood.” The time of death was

estimated at approximately 11:30 p.m. on the night before

White’s co-workers discovered her body.

In the days following the murder, police officers

interviewed several individuals as possible suspects,

including Morrisette. Morrisette acknowledged that he knew

White through his employer, Albert “Bill” Anthony, who was

White’s “boyfriend,” and that he had previously washed

White’s automobile when she brought it to Anthony’s “car

lot.” Morrisette had also accompanied Anthony to White’s

residence on two occasions, once to perform yard work and

the second time to pick up a stereo. When Morrisette was

questioned concerning his whereabouts on the night in

question, he stated that he had gone to Fertitta’s

4
Restaurant, where he had consumed hot dogs and beer. He

stated that after eating, he walked to the Grandview

Fishing Pier, talked with several people who were fishing,

and drank another beer. According to Morrisette, he then

went to the Circle Inn around 10:00 p.m. and stayed there

until 2:00 a.m. the following morning. He told the police

that, although his sister lived in an apartment above the

Circle Inn, he did not go to her apartment when he left the

Circle Inn, but instead slept in an old Dodge pick-up truck

in the parking lot of the Circle Inn. He said that he

awoke around 9:00 or 10:00 a.m. the next morning, returned

to the Circle Inn, and drank with a person who lived in a

trailer park across the street from the Circle Inn.

The murder investigation became stalled, and no one

was charged with the crime until 19 years later, when a DNA

profile extracted from sperm retrieved from the cervix and

vulva swabs of White’s body was entered into the Virginia

Forensic Laboratory’s DNA databank. 1 A search in the

databank revealed that Morrisette’s DNA profile 2 was a “cold

1
In a training session concerning the DNA databank,
the Hampton Police Department had been asked to submit
“cold cases” for retesting.
2
The record does not reflect when Morrisette’s DNA
profile was put into the Virginia Forensic Laboratory’s DNA
databank. However, on brief, Morrisette states that his

5
hit” match with the DNA profile recovered in the PERK

samples taken from White. As a result, a search warrant

was obtained for a sample of Morrisette’s blood, and

additional testing using that sample confirmed that the DNA

profile extracted from the sperm recovered from the victim

was consistent with Morrisette’s DNA profile. 3 According to

David A. Pomposini, who testified at trial as an expert in

the field of forensic biology, the probability of randomly

selecting an unrelated individual other than Morrisette

with a DNA profile matching the DNA profile of the sperm

recovered from the cervix swabs of the victim is one in 900

million in the Caucasian population, one in 1.2 billion in

the Black population, and one in 800 million in the

Hispanic population. 4

B. PENALTY PHASE

In the penalty phase of the trial, the Commonwealth

introduced photographs of the victim as evidence of the

vileness of the murder. The Commonwealth also argued that

_________________________
DNA profile was entered in connection with his convictions
on charges of abduction and maiming in 1986.
3
Arrest warrants charging Morrisette with rape and
first degree murder were obtained simultaneously with the
search warrant. A grand jury subsequently indicted
Morrisette for rape and capital murder.
4
Morrisette is a member of the Caucasian population.

6
Morrisette was a future danger to society, introducing

evidence of his previous convictions for abduction and

maiming in 1986, for burglary in 1984, and for driving

under the influence of alcohol in 1999.

The victim of the prior abduction and maiming

testified that Morrisette had attacked her as she sat in a

car parked outside a high school, waiting for her daughter

to emerge from band practice. He had a knife and pushed

her down onto the car seat, trying to gag her. Morrisette

cut her jawbone and neck, fleeing only when other vehicles

approached.

In mitigation, Morrisette and the Commonwealth

stipulated that, according to a deputy at the regional jail

where Morrisette had been incarcerated prior to trial,

Morrisette was a model inmate with a positive attitude.

Morrisette’s daughter and sister testified as to his

affection for his family. 5

II. ANALYSIS

A. PRE-TRIAL AND TRIAL ISSUES

1. SPEEDY TRIAL

Morrisette claims that the delay between the time of

5
We will summarize additional facts and material
proceedings when necessary to address specific issues
raised on appeal.

7
the offense in 1980 and his arrest in August 1999 violated

his due process rights under both the Constitution of the

United States and the Constitution of Virginia. In the

statement that Morrisette gave to the police shortly after

the murder, he provided details concerning his whereabouts

on the evening in question, including names, addresses, and

telephone numbers of putative corroborating witnesses.

Testimony at trial established that the police never made

any attempt to confirm Morrisette’s alleged alibi after he

provided that information. Morrisette asserts that, as a

result of the pre-indictment delay, he was unable to locate

the people who could have corroborated his version of his

activities on the evening when White was murdered.

To buttress his claim of prejudice because of the pre-

indictment delay, Morrisette also relies on the fact that,

in 1985, White’s PERK samples were resubmitted to the

forensic laboratory for testing against Morrisette’s PERK

samples collected in connection with the abduction and

maiming charges. However, Morrisette’s PERK was never

submitted to the laboratory, and the Hampton Police

Department eventually directed that White’s PERK be

returned without any additional testing.

In denying Morrisette’s motion to dismiss the

indictments because of the pre-indictment delay, the trial

8
court concluded that both the Commonwealth and Morrisette

had probably experienced some actual prejudice because of

the death of witnesses since White’s murder. However, the

court determined that a defendant has the burden to

establish that the delay was intentional and used by the

Commonwealth to gain a tactical advantage, and concluded

that Morrisette had not carried that burden in this case.

We agree with the trial court’s conclusions.

It is important at the outset to point out that the

type of delay about which Morrisette complains is pre-

indictment delay, not post-indictment delay. Thus, the

Speedy Trial Clause of the Sixth Amendment is inapplicable.

United States v. Lovasco, 431 U.S. 783, 788-89 (1977); Hall

v. Commonwealth, 8 Va. App. 526, 528-29, 383 S.E.2d 18, 20

(1989). Instead, the Due Process Clause is the source of

constitutional protection against oppressive pre-indictment

delay, but even that clause has a limited role to play in

such situations. Lovasco, 431 U.S. at 789.

“[P]roof of prejudice is generally a necessary but not

sufficient element of a due process claim, and . . . the

due process inquiry must consider the reasons for the delay

as well as the prejudice to the accused.” Id. at 790

(citing United States v. Marion, 404 U.S. 307, 324-25

(1971)). Thus, to gain dismissal of criminal charges

9
because of pre-arrest or pre-indictment delay, a defendant

must establish that “(1) the prosecutor intentionally

delayed indicting [the defendant] to gain a tactical

advantage and (2) the defendant incurred actual prejudice

as a result of the delay.” United States v. Amuny, 767

F.2d 1113, 1119 (5th Cir. 1985); accord United States v.

Gouveia, 467 U.S. 180, 192 (1984) (citing Lovasco, 431 U.S.

at 789-90; Marion, 404 U.S. at 324). See also United

States v. Lebron-Gonzalez, 816 F.2d 823, 831 (1st Cir.),

cert. denied, 484 U.S. 843 (1987); United States v.

Cornielle, 171 F.3d 748, 752 (2d Cir. 1999); United States

v. Ismaili, 828 F.2d 153, 166-68 (3d Cir. 1987), cert.

denied, 485 U.S. 935 (1988); United States v. Rogers, 118

F.3d 466, 474-75 (6th Cir. 1997); United States v.

Stierwalt, 16 F.3d 282, 285 (8th Cir. 1994); United States

v. Hayes, 40 F.3d 362, 365 (11th Cir. 1994), cert. denied,

516 U.S. 812 (1995). The defendant bears the burden of

proving both actual prejudice and improper purpose.

Cornielle, 171 F.3d at 752; accord Ismaili 828 F.2d at 167;

Amuny, 767 F.2d at 1119; Hayes, 40 F.3d at 365.

In the present case, we hold that Morrisette failed to

establish that the Commonwealth intentionally delayed

arresting or indicting him in order to gain a tactical

advantage. Morrisette concedes that there is no direct

10
evidence to prove this element of the two-part test.

Nevertheless, he argues that an improper motive can be

inferred from the fact that the requested comparison

testing of White’s and Morrisette’s respective PERK samples

was not completed in 1985 and because of the police

department’s “willful failure” to verify the statement

Morrisette gave a few days after White’s murder. We do not

agree. The evidence demonstrates that the police

investigated several possible suspects and that the focus

of the investigation simply shifted to persons other than

Morrisette. Thus, the trial court did not err in denying

Morrisette’s motion to dismiss the indictments because of

the pre-indictment delay. Morrisette’s due process rights

under the Constitution of the United States and the

Constitution of Virginia were not violated by the delay.

See Willis v. Mullett, 263 Va. 653, 657, 561 S.E.2d 705,

708 (2002) (due process protections afforded under the

Constitution of Virginia are co-extensive with those of the

federal constitution).

2. JURY SELECTION

Morrisette challenges the trial court’s rulings with

regard to two jurors. He claims that the court erred by

striking juror Cooper for cause and by failing to excuse

11
juror Johnson for cause. We find no merit in either of

these assignments of error.

First, as to juror Cooper, the trial court excused her

because she indicated that she could not consider imposing

the death penalty under any circumstances. The following

excerpt from the voir dire of this juror illustrates her

position regarding the death penalty:

[COMMONWEALTH’S ATTORNEY]: Miss Cooper, I asked
you a couple of minutes ago if you were selected
as the foreman of the jury and the jury found the
Defendant guilty of capital murder, um, would you
be able to sign your name to a verdict form
setting forth the jury sentence if that verdict
was a death sentence, and you indicated that you
had some difficulty with that.

JUROR COOPER: Yes, I did.

[COMMONWEALTH’S ATTORNEY]: Do you have
difficulty with imposing the imposition of the
death penalty? Is that something difficult for
you?

JUROR COOPER: Yes.

[COMMONWEALTH’S ATTORNEY]: Okay. Is it
something that you would have a hard time
considering in this or –

JUROR COOPER: Yes.

[COMMONWEALTH’S ATTORNEY]: – any other case?

JUROR COOPER: Yes.

[COMMONWEALTH’S ATTORNEY]: All right. Thank
you.

[DEFENSE COUNSEL]: Miss Cooper, if you were on
the jury and the Judge advised you to consider

12
 all the evidence in the case that includes guilt
or innocence and also includes as a possible
punishment . . . the death penalty, even though
you would have some hesitancy, could you still
fairly consider that in arriving at your verdict
in this case?

JUROR COOPER: No, I don’t think I would be able
to.

[DEFENSE COUNSEL]: Not under any circumstance as
to the death penalty?

JUROR COOPER: I feel like I could not. I would
not be able to.

[DEFENSE COUNSEL]: Okay. Thank you, your Honor.

Regarding juror Johnson, Morrisette moved to excuse

this juror because, on the morning of trial, Johnson had

read a newspaper article containing information about

White’s murder and Morrisette’s prior conviction for

maiming. Juror Johnson also had some independent

recollection of the occurrence of White’s murder. When

asked if his memory coupled with the newspaper article had

“put facts in [his] mind that would stay with [him] through

the course of this trial[,]” juror Johnson responded:

That would be a little hard to answer, sir. Of
course, it would, you know, my memories and reading
the paper, but I think that I would listen to the
witnesses and just disregard what I’ve seen or heard
up to this point . . . and just listen to the
witnesses. I think so.

The trial court denied Morrisette’s motion to excuse

Johnson, concluding that Johnson was simply being honest in

13
his response and that he could listen to the evidence with

an open mind.

Upon appellate review, we give deference to a trial

court’s determination regarding whether to excuse or retain

a prospective juror “because the trial judge has observed

and heard each member of the venire and is in a superior

position to evaluate whether the juror’s responses during

voir dire develop anything that would prevent or

substantially impair the juror’s performance of duty as a

juror in accord with the court’s instructions and the

juror’s oath.” Vinson v. Commonwealth, 258 Va. 459, 467,

522 S.E.2d 170, 176 (1999), cert. denied, 530 U.S. 1218

(2000). In doing so, we consider a juror’s entire voir

dire, not just isolated parts. Mackall v. Commonwealth,

236 Va. 240, 252, 372 S.E.2d 759, 767 (1988), cert. denied,

492 U.S. 925 (1989). Absent a showing of manifest error,

we will affirm a trial court’s decision to exclude or

retain a juror. Vinson, 258 Va. at 467, 522 S.E.2d at 176.

We do not find manifest error in the trial court’s

decisions regarding jurors Cooper and Johnson. Cooper

stated unequivocally, in response to a question by

Morrisette’s counsel, that she would not be able to

consider imposing the death penalty under any

circumstances. Johnson stated that the newspaper article

14
he read on the morning of trial would not affect his

judgment, that he could remain impartial, and that he could

base his decision solely on the evidence presented in the

courtroom, disregarding anything that he had seen or heard

previously. Thus, we conclude that the trial court did not

abuse its discretion in excluding juror Cooper and

retaining juror Johnson.

3. SUFFICIENCY OF EVIDENCE OF RAPE

At the conclusion of the Commonwealth’s evidence in

the guilt phase of the trial, Morrisette moved to strike

that evidence as to the charge of rape and, thus, also as

the underlying predicate for the capital murder charge.

Morrisette claimed, as he does on appeal, that the

Commonwealth failed to prove nonconsensual intercourse by

the use of force. 6 Morrisette points to Dr. Presswalla’s

testimony at trial that there were no injuries in White’s

genital area and seeks to disconnect the rape from the

murder by relying on Dr. Presswalla’s testimony that intact

sperm inside the vagina can be identified for up to 26

hours after a sexual act. He also relies on the fact that

other people had access to White’s residence, including her

6
In 1980, when the offense was committed, the
provisions of Code § 18.2-61 required proof that the sexual
intercourse occurred against the victim’s will and through

15
“boyfriend,” Albert Anthony, who had called White’s co-

workers and asked them to check on White when she did not

come to work on the morning that her body was eventually

discovered.

Viewing the evidence in the light most favorable to

the Commonwealth, the trial court denied the motion,

finding that the question whether White had been raped was

a jury issue. We agree and conclude that the trial court

did not err in refusing to strike the Commonwealth’s

evidence of rape.

In contrast to the testimony emphasized by Morrisette,

Dr. Presswalla stated that the absence of genital injury is

not unusual in a sexual assault case when a weapon is

involved. He further explained that, in this case, semen

was also recovered from the vulva, and he opined that it

was most unlikely that semen would have remained on the

surface of the victim’s external genitals for several hours

unless she had been incapacitated during that time. Dr.

Presswalla also testified that the knife wounds were

sustained not long after the semen was deposited. Those

multiple knife wounds included the slashing of White’s

throat and several defensive wounds sustained while she was

_________________________
the use of force. The use of threat or intimidation is
included in the present version of Code § 18.2-61.

16
trying to ward off her attacker. Furthermore, her clothes

were in disarray, with most of her body nude. These facts

are sufficient to support the defendant’s conviction for

rape and the use of that conviction as the predicate

offense for the capital murder conviction. See Johnson v.

Commonwealth, 259 Va. 654, 682, 529 S.E.2d 769, 785 (15

stab wounds and other injuries demonstrated that victim did

not consent to sexual intercourse), cert. denied, 531 U.S.

981 (2000).

B. ISSUES PREVIOUSLY DECIDED

On appeal, Morrisette raises several issues that this

Court has already decided adversely to the position he

espouses. In fact, Morrisette’s counsel acknowledged

during oral argument that all the following issues have

been resolved by this Court, but asked, nevertheless, that

we reconsider our prior decisions. However, we find no

reason to depart from our precedent. Thus, we reaffirm our

prior holdings and reject the following arguments:

1. Imposition of the death penalty violates the Eighth

Amendment’s prohibition against cruel and unusual

punishment. Rejected in Johnson, 259 Va. at 667, 529

S.E.2d at 776; Jackson v. Commonwealth, 255 Va. at 635, 499

S.E.2d at 545; Goins v. Commonwealth, 251 Va. 442, 453, 470

S.E.2d 114, 122, cert. denied, 519 U.S. 887 (1996); Spencer

17
v. Commonwealth, 238 Va. 563, 568-69, 385 S.E.2d 850, 853

(1989), cert. denied, 493 U.S. 1093 (1990).

2. Virginia’s two statutory aggravating factors,

“vileness” and “future dangerousness,” are

unconstitutionally vague on their face and as applied, and

thus fail to guide the jury’s exercise of discretion.

Rejected in Beck v. Commonwealth, 253 Va. 373, 387, 484

S.E.2d 898, 907, cert. denied, 522 U.S. 1018 (1997);

Clagett v. Commonwealth, 252 Va. 79, 86, 472 S.E.2d 263,

267 (1996), cert. denied, 519 U.S. 1122 (1997); Williams v.

Commonwealth, 248 Va. 528, 535-36, 450 S.E.2d 365, 371

(1994), cert. denied, 515 U.S. 1161 (1995); Breard v.

Commonwealth, 248 Va. 68, 74-75, 445 S.E.2d 670, 675, cert.

denied, 513 U.S. 971 (1994).

3. Use of the defendant’s prior convictions to

establish “future dangerousness” and to impose the death

penalty violates the constitutional protection against

double jeopardy. Rejected in Joseph v. Commonwealth, 249

Va. 78, 82, 452 S.E.2d 862, 865, cert. denied, 516 U.S. 876

(1995); Yeatts v. Commonwealth, 242 Va. 121, 126, 410

S.E.2d 254, 258 (1991), cert. denied, 503 U.S. 946 (1992);

Watkins v. Commonwealth, 238 Va. 341, 352, 385 S.E.2d 50,

56 (1989), cert. denied, 494 U.S. 1074 (1990).

18
 4. Virginia’s jury instructions regarding mitigating

evidence do not provide meaningful guidance to the jury

because the instructions do not inform the jurors that they

have a duty to consider mitigating evidence, do not provide

any standard of proof regarding mitigating evidence, do not

state that the death penalty can be imposed only if the

jury is convinced beyond a reasonable doubt that

aggravating factors outweigh mitigating ones, do not advise

jurors that they are free to give mitigating evidence the

weight and effect that each juror believes is appropriate,

do not list the statutory examples of mitigating evidence,

and do not define the terms “fairness” and “mercy.” 7

Rejected in Buchanan v. Angelone, 522 U.S. 269, 275-77

(1998); Cherrix v. Commonwealth, 257 Va. 292, 299, 513

S.E.2d 642, 647, cert. denied, 528 U.S. 873 (1999); Breard,

248 Va. at 74, 445 S.E.2d at 674-75; Swann v. Commonwealth,

247 Va. 222, 228, 441 S.E.2d 195, 200, cert. denied, 513

U.S. 889 (1994); Satcher v. Commonwealth, 244 Va. 220, 228,

421 S.E.2d 821, 826 (1992), cert. denied, 507 U.S. 933

7
We note that the instructions given to the jury
during the penalty phase of the trial provided that the
jury “shall consider any mitigation evidence,” that “a
mitigating factor is one that would tend to favor a
sentence of . . . imprisonment for life,” and that such
evidence does not have to be proven beyond a reasonable
doubt.

19
(1993); Watkins v. Commonwealth, 229 Va. 469, 490-91, 331

S.E.2d 422, 438 (1985), cert. denied, 475 U.S. 1099 (1986).

5. Virginia does not provide meaningful appellate

review in death penalty cases because of the expedited

review procedure and because this Court does not consider

all capital murder cases, including those not appealed to

the Court, in conducting its proportionality review.

Rejected in Emmett v. Commonwealth, No. 020314, 264 Va.

___, ___, ___ S.E.2d ___, ___ (2002) (this day decided);

Lovitt v. Commonwealth, 260 Va. 497, 509, 537 S.E.2d 866,

874 (2000), cert. denied, ___ U.S. ___, 122 S.Ct. 41

(2001); Bailey v. Commonwealth, 259 Va. 723, 740-42, 529

S.E.2d 570, 580-81, cert. denied, 531 U.S. 995 (2000);

Goins, 251 Va. at 453, 470 S.E.2d at 122.

6. Morrisette was entitled to expanded discovery

beyond the scope of Rule 3A:11. Rejected in Walker v.

Commonwealth, 258 Va. 54, 63, 515 S.E.2d 565, 570-71

(1999), cert. denied, 528 U.S. 1125 (2000); Strickler v.

Commonwealth, 241 Va. 482, 490-91, 404 S.E.2d 227, 233,

cert. denied, 502 U.S. 944 (1991).

C. STATUTORY REVIEW

Pursuant to the provisions of Code § 17.1-313(C)(1),

this Court is required to consider and determine whether

the death sentence in this case was imposed under the

20
influence of passion, prejudice, or other arbitrary

factors. Morrisette does not point to any such factor, and

our review of the record does not reveal any evidence to

suggest that Morrisette’s sentence of death was based on or

influenced by any passion, prejudice, or other arbitrary

factors.

We are also required to consider and decide whether

Morrisette’s sentence of death is “excessive or

disproportionate to the penalty imposed in similar cases,

considering both the crime and the defendant.” Code

§ 17.1-313(C)(2). “The purpose of our comparative review

is to reach a reasoned judgment regarding what cases

justify the imposition of the death penalty.” Orbe v.

Commonwealth, 258 Va. 390, 405, 519 S.E.2d 808, 817 (1999),

cert. denied, 529 U.S. 1113 (2000). In conducting this

statutorily mandated review in this case, we have focused

on cases in which the victim was murdered during the

commission of rape, and in which the sentence of death was

imposed based on findings of both “future dangerousness”

and “vileness.” See, e.g., Swisher v. Commonwealth, 256

Va. 471, 506 S.E.2d 763 (1998), cert. denied, 528 U.S. 812

(1999); Cherrix, 257 Va. 292, 513 S.E.2d 642; Pruett v.

Commonwealth, 232 Va. 266, 351 S.E.2d 1 (1986), cert.

denied, 482 U.S. 931 (1987); Coleman v. Commonwealth, 226

21
Va. 31, 307 S.E.2d 864 (1983), cert. denied, 465 U.S. 1109

(1984); Mason v. Commonwealth, 219 Va. 1091, 254 S.E.2d

116, cert. denied, 444 U.S. 919 (1979); Smith v.

Commonwealth, 219 Va. 455, 248 S.E.2d 135 (1978), cert.

denied, 441 U.S. 967 (1979). We have also considered cases

in which defendants received life sentences, rather than

the death penalty, for capital murder during the commission

of rape. See, e.g., Horne v. Commonwealth, 230 Va. 512,

339 S.E.2d 186 (1986); Keil v. Commonwealth, 222 Va. 99,

278 S.E.2d 826 (1981).

Morrisette does not argue that his sentence of death

is excessive or disproportionate to the penalty generally

imposed in comparable cases. Based on our independent

review of this case and similar cases, we conclude that

Morrisette’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 Dorothy White.

III. CONCLUSION

For the reasons stated, we find no error in the

judgments of the circuit court or in the imposition of the

death penalty. We also perceive no reason to commute the

22
sentence of death in this case. Thus, we will affirm the

judgments of the circuit court. 8

Affirmed.

8
Morrisette failed to brief the following assignments
of error. Thus, we will not consider them on appeal. Bell
v. Commonwealth, 264 Va. 172, 183, 563 S.E.2d 695, ___
(2002); Kasi v. Commonwealth, 256 Va. 407, 413, 508 S.E.2d
57, 60 (1998), cert. denied, 527 U.S. 1038 (1999).
No. 9: that portion of this assignment of error
alleging that Code § 19.2-264.3:1(D)-(F) “is in conflict
with the rights of the defendant under the Compulsory
Process Clause . . . and his right against self-
incrimination;”
No. 12: the trial court erred in failing to strike
prospective juror Wright;
No. 18: the trial court “erred in overruling an
objection to [the introduction of] pictures from trial
without foundation;” and
No. 20: the trial court erred in denying a motion to
defer sentencing until the United States Supreme Court
decides an issue regarding whether a mentally retarded
defendant can be sentenced to death. However, the record
in this case would not support a finding of mental
retardation. But see Atkins v. Virginia, ___ U.S. ___, 122
S.Ct. 2242 (2002). Intelligence tests were administered to
Morrisette on two occasions, with resulting I.Q. scores of
77 and 82. A psychiatrist who evaluated Morrisette with
regard to the present charges opined that Morrisette’s
“[i]ntelligence appeared roughly below average.” Although
Morrisette withdrew from school in the eighth grade with
failing grades, he obtained a general equivalency diploma
while serving in the military.

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