Johnson v. Commonwealth

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

SHERMAINE A. JOHNSON

v. Record Nos. 992525 and 992526
OPINION BY JUSTICE BARBARA MILANO KEENAN
April 21, 2000
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
James F. D'Alton, Jr., Judge

In these appeals, we review the capital murder conviction

and death sentence imposed on Shermaine A. Johnson, along with

his conviction for rape.

I. PROCEEDINGS

On January 6, 1997, petitions were issued in the Juvenile

and Domestic Relations District Court of the City of Petersburg

(juvenile court) against Johnson, charging him with the July 11,

1994 rape and capital murder of Hope Denise Hall. Johnson was

16 years old at the time these offenses were committed. Notice

of the juvenile court proceedings was provided to Johnson's

guardian and grandmother, Virginia Dancy. After a hearing, the

juvenile court found probable cause to believe that Johnson had

committed the crimes alleged and entered an order certifying the

charges to the grand jury.

On April 17, 1997, the grand jury of the Circuit Court of

the City of Petersburg (the circuit court) indicted Johnson on
charges of capital murder in the commission of rape or attempted

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

Code § 18.2-61. Johnson filed numerous pretrial motions and

requests for continuances during the ensuing 14 months. On June

17, 1998, Johnson filed a motion to dismiss the indictments,

arguing that the circuit court had not complied with the

requirements of former Code § 16.1-296(B). This statute

required the circuit court, within a "reasonable time" after

receiving the case from the juvenile court, to review the

records and enter an order either remanding the case to the

juvenile court or advising the Commonwealth's Attorney that he

may seek indictments.

The circuit court entered an order dated June 29, 1998,

stating that it had reviewed Johnson's records from the juvenile

court and, upon that review, authorized the Commonwealth's

Attorney to seek indictments. The grand jury returned new

indictments on July 2, 1998, and the circuit court later granted

the Commonwealth's motion to enter a nolle prosequi on the

original indictments. The circuit court also entered an order

stating that "[a]ll papers, documents, orders, motions,

responses, letters, and arguments" contained in the court files

of the original indictments were "transferred and incorporated"

in the files of the new indictments.

2
 In the first stage of a bifurcated jury trial conducted

under Code § 19.2-264.3, the jury convicted Johnson of the

offenses charged in the new indictments. In the penalty phase

of the trial, the jury fixed his punishment for capital murder

at death, based on findings of both "future dangerousness" and

"vileness."

In a post-trial motion, Johnson sought dismissal of the

indictments on the ground that the Commonwealth had failed to

provide notice of the transfer proceedings in juvenile court to

Johnson's father, in violation of former Code §§ 16.1-263 and -

264. The trial court denied the motion, finding that "proper

notice as contemplated by the statute" had been given. After

considering the pre-sentence report and victim impact

statements, the trial court sentenced Johnson to life

imprisonment on the rape charge and, in accordance with the jury

verdict, to death on the capital murder charge.

We consolidated the automatic review of Johnson's death

sentence with his appeal of the capital murder conviction. Code

§ 17.1-313(F). We also certified Johnson's appeal of his rape

conviction from the Court of Appeals and consolidated that

appeal with his capital murder appeal. Code § 17.1-409.

II. THE EVIDENCE

We will state the evidence presented at trial in the light

most favorable to the Commonwealth, the prevailing party below.

3
Walker v. Commonwealth, 258 Va. 54, 60, 515 S.E.2d 565, 568

(1999), cert. denied, ___ U.S. ___, 120 S.Ct. 955 (2000);

Jackson v. Commonwealth, 255 Va. 625, 632, 499 S.E.2d 538, 543

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

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

denied, 519 U.S. 951, (1996). On July 11, 1994, the nude body

of 22-year-old Hope Denise Hall was found on the bedroom floor

of her apartment in Petersburg. She had been stabbed 15 times,

including fatal stab wounds to her back, chest, and neck.

Hall's body had abrasions on the nose and left cheek. The

body also had a broken, ragged fingernail that Dr. Deborah Kay,

an assistant chief medical examiner for the Commonwealth,

testified was a "defense-type" injury. Dr. Kay also testified

that death "is not generally immediate" with wounds such as

those suffered by Hall, and that she initially would have

remained conscious after the wounds were inflicted.

The police found blood on two "steak" knives, which were

lying on a counter in Hall's kitchen. Blood was also found on a

piece of a broken drinking glass located on the kitchen counter,

and there was additional blood on the kitchen counter and floor.

The police recovered from the kitchen floor an earring, five

strands of hair, and a partial shoe print containing some blood.

The matching earring was found in Hall's bedroom.

4
 The outside door to Hall's apartment was locked, and the

police found a partial fingerprint and smears of blood on the

inside panel of that door, which was located near the kitchen.

The police recovered two additional "steak" knives, one on

Hall's bed and one in her bathroom. The telephone wires in her

bedroom had been pulled out of the wall.

A smear of blood and blood splatters were located on the

bedroom wall near the victim's body. The police found

additional blood on the bedroom floor, dresser, sheets, and

bedspread. There was no sign of forced entry into the

apartment.

DNA Evidence

Jean M. Hamilton, a forensic scientist employed by the

Virginia Division of Forensic Science, testified that she

performed DNA testing using the "polymerase chain reaction," or

PCR, technique on evidence recovered from the crime scene and a

blood sample and vaginal swabs collected from Hall's body during

an autopsy. Hamilton concluded that the DNA from the blood

found on the knife on the bed, the knives in the kitchen, the

kitchen countertop, and the front door all matched the DNA from

Hall's blood sample.

Hamilton determined that the DNA from Hall's blood did not

match the DNA from the blood on the handle of the knife found in

the bathroom. However, the blood from the broken glass in the

5
kitchen and one bloodstain on the bedspread contained a mixture

of Hall's DNA and DNA from the same person whose blood was on

the handle of the knife found in the bathroom.

Hamilton testified that DNA from sperm detected in two

semen stains on the sheets and DNA from another stain on the

bedspread came from the same person as the DNA from the blood on

the bathroom knife. However, the DNA from the sperm detected in

the vaginal swab taken from Hall's body came from more than one

person.

Early in the investigation, an acquaintance of Hall, Leroy

Quick, III, who had been observed knocking on the door of Hall's

apartment on the night of the murder, was suspected of

committing these crimes. Hamilton analyzed the DNA from a

sample of Quick's blood. Based on her analysis, Hamilton

eliminated Quick as a possible source of the DNA found on all

the evidence she had analyzed.

Hamilton then performed a more discriminating type of DNA

analysis, known as "restriction fragment length polymorphism" or

RFLP testing, on the DNA from two semen stains found on the

sheet and the bedspread. After obtaining the DNA profile from

those two stains, Hamilton searched the DNA data bank maintained

by the Division of Forensic Science to determine if the DNA

profile obtained from the crime scene evidence matched any DNA

profile on record in the DNA data bank. Hamilton did not find a

6
matching DNA profile at the time of her initial search in March

1996, at which time there were about 5,000 samples in the DNA

data bank.

In August 1996, Hamilton performed a second search of the

DNA data bank after about 2,500 more samples had been added to

the bank. Hamilton's second search revealed that one DNA

profile contained in the data bank was consistent with the DNA

profile that she had obtained from the crime scene evidence.

This matching DNA profile belonged to the defendant, Shermaine

A. Johnson, who was incarcerated in the Southampton Correctional

Institute.

Hamilton performed DNA testing, using the PCR technique, on

another sample of Johnson's blood that was in the custody of the

City of Franklin Police Department. Hamilton concluded that the

DNA profile of Johnson, who is an African-American, matched the

DNA found on the handle of the knife retrieved from the

bathroom, some of the semen stains on the sheets, the semen

stain on the bedspread, and some of the sperm in the vaginal

swab. Based on the results of this PCR test, Hamilton estimated

that this particular DNA profile would occur in about one out of

980 people in the Black population, or about one-tenth of 1% of

that population.

Sergeant Thomas Patrick of the Petersburg Bureau of Police

obtained a search warrant, which he executed on Johnson at the

7
Southampton Correctional Institute. Pursuant to the search

warrant, Patrick obtained another blood sample from Johnson, as

well as head and pubic hair samples. George Li, a supervising

forensic scientist with the Virginia Division of Forensic

Science, conducted RFLP testing on DNA from the blood sample

obtained from Johnson and compared it to the DNA found at the

crime scene. Li concluded that Johnson's DNA matched the DNA

from semen stains on the sheet and bedspread. Li estimated that

the probability of randomly selecting an individual other than

Johnson with the same DNA profile as that found in the evidence

taken from the crime scene was about one in one million in the

Black population.

Li also conducted PCR testing on the DNA from the blood

sample obtained from Johnson, and compared the results with the

DNA on the knife found in the bathroom and semen stains found on

the sheets and bedspread. Based on the less discriminating PCR

technique, Li estimated that the probability of a person other

than Johnson having a DNA profile matching the DNA from the

crime scene evidence was one in 980 in the Black population.

Johnson's Statements to Police

After Hamilton made the initial match of the DNA taken from

the crime scene with Johnson's DNA profile obtained from the

data bank, three police officers from the Petersburg Police

Bureau interviewed Johnson at the Southampton Correctional

8
Institute in August 1996. Upon signing a written waiver of his

Miranda rights, Johnson told the police officers that he had

been in Petersburg "quite a bit" during the summer of 1994 and

had spent "a lot" of time at the apartment complex where Hall

lived. His cousin and another acquaintance lived in other

buildings in the same complex. Johnson stated that on the night

Hall was murdered, he encountered her in a hallway and that they

went inside her apartment and began kissing on her living room

couch. Johnson stated that an African-American man with a light

complexion who had a "fade" haircut knocked on Hall's door,

entered the apartment, and began arguing with Johnson.

According to Johnson, this man threatened him with a knife and

pushed him out of the apartment.

Johnson denied being present in any room in Hall's

apartment other than the living room and denied being cut or

injured in any way while in the apartment. On further

questioning, Johnson stated that he had not met Hall in the

outside hallway, but had knocked on her door.

Other Crimes Evidence

Prior to trial, the Commonwealth gave Johnson notice that

it intended to present evidence during the guilt phase of the

trial that Johnson had raped 21-year-old Lavonda Scott on July

2, 1994, and 15-year-old Janel Chambliss on August 31, 1994.

Over Johnson's objection, the trial court permitted both Scott

9
and Chambliss to testify about these crimes, after finding that

there were "numerous" similarities between the crimes committed

against Scott and Chambliss and the pending charges against

Johnson.

The trial court cited the following factors in its decision

to permit the testimony of Scott and Chambliss. All three

victims were young African-American women. Scott and Chambliss

both knew Johnson and allowed him to enter their homes. There

was no sign of forced entry into Hall's apartment. Johnson

assaulted both Scott and Chambliss after requesting a glass of

water. He then seized knives from their kitchens. There was a

broken drinking glass in Hall's kitchen, and the knives used to

kill Hall came from her kitchen.

Johnson forced both Scott and Chambliss to remove all their

clothing before raping them. Hall's body was totally nude and

her clothes were found near her body. Johnson threatened both

Scott and Chambliss, stating that he would kill them if they did

not follow his directions. When Chambliss resisted and

struggled with Johnson, he stabbed her. There was evidence of a

struggle in Hall's apartment and Hall was fatally stabbed. All

three crimes occurred within a 90-day period in 1994. 1

Aggravating Factors

10
 During the penalty phase of the trial, the Commonwealth

presented evidence that in addition to the rapes of Scott,

Chambliss, and Hall, Johnson committed two other rapes in 1994.

The two victims of these other crimes testified at the penalty

phase. The evidence showed that in January 1994, Johnson raped

a 13-year-old girl as she was walking down a flight of stairs

inside her apartment building in New Jersey. Johnson grabbed

her from behind, held a "steak" knife to her throat, demanded

that she remove her clothes, and raped her. In June 1994,

Johnson raped a 15-year-old girl in a friend's apartment in New

York City. Johnson stopped the girl on the street and lured her

to his friend's apartment, where he threatened her with a knife,

forced her to remove her clothing, and raped her.

III. ISSUES PREVIOUSLY DECIDED

On appeal, Johnson raises certain arguments that we have

resolved in previous decisions. Since we find no reason to

modify our previously expressed views, we reaffirm our earlier

holdings and reject the following arguments:

A. Imposition of the death penalty constitutes cruel and

unusual punishment in violation of the United States

Constitution and the Constitution of Virginia. Rejected in

Yarbrough v. Commonwealth, 258 Va. 347, 360 n.2, 519 S.E.2d 602,

1
While the trial court found that all three crimes occurred
within a 90-day period, the record reflects that they occurred

11
607 n.2 (1999); Jackson, 255 Va. at 635, 499 S.E.2d at 545;

Goins v. Commonwealth, 251 Va. 442, 453, 470 S.E.2d 114, 122,

cert. denied, 519 U.S. 887 (1996).

B. Virginia's death penalty statutes fail to provide

meaningful guidance to the jury. Rejected in Yarbrough, 258 Va.

at 360 n.2, 519 S.E.2d at 607 n.2; Cherrix v. Commonwealth, 257

Va. 292, 299, 513 S.E.2d 642, 647, cert. denied, ___ U.S. ___,

120 S.Ct. 177 (1999); Roach, 251 Va. at 336, 468 S.E.2d at 105;

Breard v. Commonwealth, 248 Va. 68, 74, 445 S.E.2d 670, 674-75,

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

C. The "vileness" factor is unconstitutionally vague and

overbroad. Rejected in Walker, 258 Va. at 61, 515 S.E.2d at

569; Cherrix, 257 Va. at 299, 513 S.E.2d at 647; Beck v.

Commonwealth, 253 Va. 373, 387, 484 S.E.2d 898, 907, cert.

denied, 522 U.S. 1018 (1997).

D. The "future dangerousness" factor is unconstitutionally

vague and unconstitutionally permits the consideration of

unadjudicated conduct. Rejected in Walker, 258 Va. at 61, 515

S.E.2d at 569; Cherrix, 257 Va. at 299, 513 S.E.2d at 647;

Clagett v. Commonwealth, 252 Va. 79, 86, 472 S.E.2d 263, 267

(1996), cert. denied, 519 U.S. 1122 (1997).

E. Virginia's penalty phase instructions do not adequately

instruct the jury concerning mitigation. Rejected in Yarbrough,

within a 60-day period in July and August, 1994.

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258 Va. at 360 n.2, 519 S.E.2d at 607 n.2; Cherrix, 257 Va. at

299, 513 S.E.2d at 647; Swann v. Commonwealth, 247 Va. 222, 228,

441 S.E.2d 195, 200, cert. denied, 513 U.S. 889 (1994).

F. The post-verdict review of the death sentence by the

trial court does not satisfy constitutional standards because

the trial court may consider hearsay evidence contained in a

pre-sentence report and is not required to set aside the death

sentence upon a showing of good cause. Rejected in Walker, 258

Va. at 61, 515 S.E.2d at 569; Cherrix, 257 Va. at 299, 513

S.E.2d at 647; Breard, 248 Va. at 76, 445 S.E.2d at 675.

IV. PRETRIAL MATTERS

Juvenile Transfer Issues

Johnson argues that the circuit court erred in denying his

motions to dismiss both sets of indictments. He first asserts

that the original indictments were void because the circuit

court failed to review the transfer record from the juvenile

court under former Code § 16.1-296(B) before the original

indictments were obtained. He also argues that the original

indictments were void under Commonwealth v. Baker, 258 Va. 1,

516 S.E.2d 219 (1999)(per curiam), because the Commonwealth had

failed to notify Johnson's father of the transfer hearing in the

juvenile court. We disagree with Johnson's arguments.

The requirement of former Code § 16.1-296(B), that the

circuit court review the transfer documents from the juvenile

13
court before allowing the Commonwealth to seek indictments, was

inapplicable to Johnson's case. This review was not required

because Johnson previously had been tried and convicted as an

adult in the Circuit Court of Southampton County for the rape of

Lavonda Scott. Code § 16.1-271 provides in relevant part:

Any juvenile who is tried and convicted in a circuit
court under the provisions of this article shall be
considered and treated as an adult in any criminal
proceeding resulting from any future alleged criminal acts.
. . .
All procedures and dispositions applicable to adults
charged with such a criminal offense shall apply in such
cases. . . . The provisions of this article regarding a
transfer hearing shall not be applicable to such juveniles.

The rape of Lavonda Scott occurred on July 2 or 3, 1994,

and the present offenses took place days later on July 11, 1994.

Thus, the rape and capital murder of Hope Hall were "future

alleged criminal acts" within the meaning of Code § 16.1-271,

and Johnson was not entitled to the protection that the transfer

statutes afford a juvenile offender who has not previously been

tried and convicted as an adult in a circuit court.

Accordingly, since Johnson's prior conviction as an adult

eliminated the requirement of former Code § 16.1-296(B) that the

circuit court review the transfer proceedings, his claim that

the review was not performed in a timely manner has no merit.

The provisions of Code § 16.1-271 also invalidate Johnson's

claim that the indictments were void because his father was not

provided notice of the transfer proceedings in the juvenile

14
court. Under the plain language of Code § 16.1-271, a juvenile

who has been convicted as an adult in a circuit court is not

entitled to a transfer hearing in the juvenile court. Since

Johnson had no right to a transfer hearing, the notice

requirements pertaining to such a hearing are inapplicable and

do not provide a basis for challenging either set of indictments

returned in this case.

Johnson next contends that the Commonwealth's failure to

try the charges against him within five months of his

preliminary hearing violated his right to a speedy trial under

Code § 19.2-243. He asserts that the 16-month interval between

the preliminary hearing and trial is attributable solely to the

Commonwealth's failure to seek a timely review of the transfer

documents from the juvenile court.

The record demonstrates that there is no merit to Johnson's

claim. Johnson's preliminary hearing and resulting probable

cause determination occurred in the juvenile court on March 20,

1997. Johnson either requested or agreed to every continuance

granted by the circuit court under the original indictments, and

Johnson conceded this fact in argument before the circuit court.

When the time attributable to those continuances is subtracted

from the total time this case was pending in the circuit court

before trial, the record shows that Johnson was tried within the

15
time restrictions imposed by Code § 19.2-243. 2 See Townes v.

Commonwealth, 234 Va. 307, 323, 362 S.E.2d 650, 659 (1987) cert.

denied, 485 U.S. 971 (1988); Robinson v. Commonwealth, 28 Va.

App. 148, 155-56, 502 S.E.2d 704, 708 (1998); Watkins v.

Commonwealth, 26 Va. App. 335, 347-48, 494 S.E.2d 859, 865

(1998).

Johnson also argues that the trial court erred in

incorporating in the present case, which was tried under the new

indictments, all pleadings filed and rulings made under the

original indictments. He contends that the circuit court lacked

jurisdiction to take this action after the original indictments

had been terminated by nolle prosequi, asserting that a new

preliminary hearing in the juvenile court was required. Johnson

also contends that because the original indictments were

terminated by nolle prosequi, all pretrial proceedings conducted

under the original indictments were effectively nullified.

Thus, he argues that there were no rulings or pleadings before

the trial court that could have been incorporated in the

prosecution on the new indictments. We disagree.

As discussed above, since Johnson previously had been tried

and convicted as an adult for rape, the Commonwealth was not

required to institute new proceedings in the juvenile court.

2
Although Johnson contended in the circuit court that his
constitutional right to a speedy trial also was violated, he has

16
Code § 16.1-271. Instead, the Commonwealth was entitled to

consider and treat Johnson as an adult and obtain new

indictments in the circuit court. See Code § 19.2-217; Payne v.

Warden of Powhatan Correctional Center, 223 Va. 180, 183, 285

S.E.2d 886, 887-88 (1982).

The new indictments were identical to the old indictments

and, thus, presented exactly the same issues that Johnson raised

before the circuit court in the original indictments. The nolle

prosequi of the original indictments did not invalidate the

trial court's rulings in that case, but simply terminated the

original prosecution and discharged Johnson from liability on

those indictments. See Miller v. Commonwealth, 217 Va. 929,

935, 234 S.E.2d 269, 273 (1977), cert. denied, 434 U.S. 1016

(1978). The circuit court was not required to rehear the same

matters and reissue the same rulings simply because the

Commonwealth mistakenly had concluded that the original

indictments may have been invalid. Thus, we hold that the

circuit court's decision to incorporate the prior rulings in the

present case was a proper exercise of the court's discretion. 3

not asserted this argument on appeal.
3
At oral argument in these appeals, Johnson argued for the
first time that if Code § 16.1-271 required that he be treated
as an adult, then the original indictments, and all pretrial
proceedings conducted pursuant to those indictments, were void
because the juvenile court lacked jurisdiction to initiate any
proceedings against Johnson. We find no merit in this argument,

17
 Motions to Suppress Fruits of Search Warrant

Johnson argues that the 32-day interval between the time

Hamilton first matched DNA from the crime scene with Johnson's

DNA profile in the DNA data bank, and the time the search

warrant was executed, constituted an "unreasonable delay." He

contends that the evidence obtained as a result of the search

warrant, namely, the blood sample, hair samples, and his

statement to the police, should have been suppressed based on

this "unreasonable delay." We disagree.

There is no fixed standard or formula establishing a

maximum allowable interval between the date of events recited in

an affidavit and the date of a search warrant. United States v.

McCall, 740 F.2d 1331, 1336 (4th Cir. 1984); Huff v.

Commonwealth, 213 Va. 710, 715, 194 S.E.2d 690, 695 (1973);

Perez v. Commonwealth, 25 Va. App. 137, 142-43, 486 S.E.2d 578,

581 (1997). Instead, a warrant will be tested for "staleness"

by considering whether the facts alleged in the warrant provided

probable cause to believe, at the time the search actually was

conducted, that the search conducted pursuant to the warrant

would lead to the discovery of evidence of criminal activity.

because the original indictments were obtained pursuant to the
circuit court's jurisdiction over Johnson, which existed
independently of the proceedings in juvenile court. See Code
§ 19.2-217. We also note that Johnson agreed at oral argument
that the new indictments, under which he was tried and
convicted, were valid.

18
McCall, 740 F.2d at 1336; Perez, 25 Va. App. at 142, 486 S.E.2d

at 581; see United States v. Akram, 165 F.3d 452, 456 (6th Cir.

1999); Huff, 213 Va. at 715-16, 194 S.E.2d at 695.

Here, Johnson's contention of "staleness" fails because the

DNA from the crime scene evidence and his DNA profile from the

DNA data bank, which were "matched" by Hamilton and formed the

basis for issuance of the warrant, were not subject to change

over the 32-day period at issue. The blood and hair samples

taken from Johnson pursuant to the search warrant also were not

subject to change over this time period. See State v. Baker,

956 S.W.2d 8, 13 (Tenn. Crim. App. 1997)(holding that samples of

person's blood, saliva, and hair cannot become "stale.") Thus,

we hold that the search warrant was valid and the trial court

did not err in refusing to suppress the evidence at issue.

Since the search warrant was valid, we also conclude that there

is no merit in Johnson's allegation that the statement he made

to the police should have been suppressed as a fruit of the

search conducted pursuant to that warrant.

Constitutionality of Virginia's DNA Data Bank

Johnson argues that the statutes providing for the

Commonwealth's DNA data bank, Code §§ 19.2-310.2 through -310.7

(DNA statutes), which include a requirement that all convicted

felons submit blood samples for DNA testing, violate various

constitutional rights. He contends that these statutes violate

19
the Fourth Amendment guarantee against unreasonable searches and

seizures, the Fifth Amendment protection against self-

incrimination, and the Eighth Amendment guarantee against cruel

and unusual punishment. He further contends that the DNA

statutes violate his constitutional right of due process.

Johnson also relies on the parallel provisions of the

Constitution of Virginia that articulate these constitutional

rights. Finally, Johnson contends that these statutes are

arbitrary and unreliable, fail to establish meaningful

restrictions on the seizure and dissemination of DNA material,

and constitute an "undue delegation of [legislative] powers."

We disagree with Johnson's arguments.

The DNA statutes do not deny a criminal defendant any

constitutional rights. Although we have not considered

previously the issues Johnson raises, the United States Court of

Appeals for the Fourth Circuit has addressed the

constitutionality of Virginia's DNA statutes in two cases. In

Jones v. Murray, 962 F.2d 302 (4th Cir.) cert. denied, 506 U.S.

977 (1992), the Court concluded that the procurement of a blood

sample for DNA analysis from a convicted felon under Code

§ 19.2-310.2 does not violate the Fourth Amendment guarantee

against unreasonable searches and seizures. The Court held that

"in the case of convicted felons who are in the custody of the

Commonwealth, we find that the minor intrusion caused by the

20
taking of a blood sample is outweighed by Virginia's interest

. . . in determining inmates' 'identification characteristics

specific to the person' for improved law enforcement." Id. at

307 (quoting Code § 19.2-310.2); see also Ewell v. Murray, 11

F.3d 482, 484 (4th Cir. 1993), cert. denied, 511 U.S. 1111

(1994). We agree with this conclusion and hold that it is

equally applicable to the guarantee against unreasonable

searches and seizures set forth in Article I, Section 10 of the

Constitution of Virginia.

We also conclude that the Fifth Amendment right against

self-incrimination, and the parallel right afforded by Article

I, Section 8 of the Constitution of Virginia, are not violated

by the DNA statutes. The taking of a blood sample does not

implicate any rights against self-incrimination, because such an

act is not testimonial or communicative in nature. Schmerber v.

California, 384 U.S. 757, 761 (1966); Shumate v. Commonwealth,

207 Va. 877, 880, 153 S.E.2d 243, 245 (1967); Lawrence v.

Bluford-Brown, 1 Va. App. 202, 204, 336 S.E.2d 899, 900-01

(1985). Thus, the withdrawal of blood from a convicted felon to

provide a DNA sample for inclusion in the DNA data bank in

accordance with Code § 19.2-310.2 does not violate the felon's

constitutional protection against self-incrimination.

Next, we conclude that the DNA statutes do not violate the

Eighth Amendment guarantee against cruel and unusual punishment,

21
and the parallel right secured by Article 1, Section 9 of the

Constitution of Virginia. The DNA statutes are not penal in

nature. Ewell, 11 F.3d at 485; Jones, 962 F.2d at 309.

Therefore, there is no merit to Johnson's contention that the

above rights are "subverted" by the requirement that a DNA blood

sample be taken from persons convicted of a felony.

We also disagree with Johnson's argument that the DNA

statutes violate federal constitutional rights of due process

and the due process provisions of Article I, Section 11 of the

Constitution of Virginia. In support of his argument, Johnson

states merely that the DNA statutes do not "require that notice

be given to individuals whose DNA is seized." This argument has

no merit because the enactment of the statutes themselves in

1990 provided notice that all persons convicted of a felony will

be required to give a blood sample for DNA analysis.

We also reject Johnson's arguments that the DNA statutes

are arbitrary and unreliable, fail to establish meaningful

restrictions on the seizure and dissemination of DNA material,

and constitute an "undue delegation of [legislative] powers."

The statutes apply uniformly to every convicted felon, and the

use of the information collected from each felon is restricted

to law enforcement purposes. Code §§ 19.2-310.2, -310.5, and -

310.6. Further, since Johnson does not explain why the statutes

22
are an "undue delegation" of powers, we do not address this

argument because we are unable to discern its substance.

Batson Challenge

During jury selection, the prosecutor used all five of her

peremptory strikes to remove African-Americans from the venire.

Johnson asserted a challenge to the panel under Batson v.

Kentucky, 476 U.S. 79 (1986). After noting that the jury panel,

which included two alternate jurors, was comprised of ten

African-Americans, one Hispanic, and three Caucasians, the trial

court ruled that Johnson had failed to establish a prima facie

case of racial exclusion under Batson. The trial court stated:

"It's clear the jury is predominantly black . . . . There was no

questioning in the voir dire or anything to suggest any racial

inferences. So I do not find that a prima facie case has been

made."

Johnson argues on appeal that the trial court violated the

holding in Batson in failing to require the prosecutor to state

race-neutral reasons for each of her peremptory strikes. In

response, the Commonwealth contends that the trial court did not

err under Batson because the circumstances surrounding the

prosecutor's use of her peremptory strikes did not raise an

inference that these strikes were made to exclude potential

jurors based on their race. We agree with the Commonwealth.

23
 In Batson, the Supreme Court stated the requirements for

establishing a prima facie case of purposeful discrimination in

the selection of a petit jury. The Court held that to establish

such a prima facie case,

the defendant first must show that he is a member of a
cognizable racial group . . . and that the prosecutor
has exercised peremptory challenges to remove from the
venire members of the defendant's race. Second, the
defendant is entitled to rely on the fact, as to which
there can be no dispute, that peremptory challenges
constitute a jury selection practice that permits
"those to discriminate who are of a mind to
discriminate." . . . Finally, the defendant must show
that these facts and any other relevant circumstances
raise an inference that the prosecutor used that
practice to exclude the veniremen from the petit jury
on account of their race.

Batson, 476 U.S. at 96. The trial court's determination

whether discrimination has occurred in the selection of a

jury is entitled to great deference. Id. at 98 n.21.

The defendant has the burden of producing a record

that supports a prima facie case of purposeful

discrimination. United States v. Escobar-De Jesus, 187

F.3d 148, 164 (1st Cir. 1999), cert. denied, ___U.S.___, 68

U.S.L.W. 3534 (U.S. Feb.22, 2000)(No. 99-7685); Atkins v.

Commonwealth, 257 Va. 160, 174, 510 S.E.2d 445, 454 (1999);

Kasi v. Commonwealth, 256 Va. 407, 421, 508 S.E.2d 57, 65

(1998), cert. denied, ___ U.S. ___, 119 S.Ct. 2399 (1999);

see Batson, 476 U.S. at 96-97. The fact that the

prosecution has excluded African-Americans by using

24
peremptory strikes does not itself establish such a prima

facie case under Batson. See 476 U.S. at 96-97; United

States v. Sangineto-Miranda, 859 F. 2d 1501, 1521 (6th Cir.

1988). A defendant also must identify facts and

circumstances that raise an inference that potential jurors

were excluded based on their race. Batson, 476 U.S. at 96;

Escobar-De Jesus, 187 F.3d at 164.

The composition of the jury that ultimately is sworn

is a relevant consideration in reviewing a Batson

challenge. Sangineto-Miranda, 859 F.2d at 1521-22; see

Escobar-DeJesus, 187 F.3d at 165. The jury selected in

this case was comprised overwhelmingly of African-

Americans. We also observe that none of the prosecutor's

questions or statements to the venire indicated that the

prosecutor was of a mind to discriminate in her exercise of

peremptory strikes.

In addition, no other facts or circumstances in the

present record support an inference of purposeful

discrimination by the prosecutor in the jury selection

process. Therefore, we conclude that the record supports

the trial court's ruling that Johnson failed to make a

prima facie showing of purposeful discrimination under

Batson. Since Johnson failed to establish such a prima

facie case, the prosecutor was not required to provide a

25
racially neutral explanation for her exercise of peremptory

strikes.

Appointment of Co-Counsel

Johnson next argues that the trial court erred in denying

his request for the appointment of co-counsel with specialized

knowledge relating to DNA evidence to assist his court-appointed

attorney in addressing issues presented by the Commonwealth's

use of such evidence. Johnson contends that he was denied

effective assistance of counsel because his court-appointed

attorney, by his own admission, did not have the expertise

necessary to evaluate the DNA evidence linking Johnson to these

crimes.

We find no merit in these arguments. Johnson withdrew his

request for appointment of co-counsel prior to trial and instead

asked the trial court to appoint a DNA expert, which request was

granted. 4 Therefore, by withdrawing his request for co-counsel

in the trial court, Johnson has waived his claim that the trial

court erred in denying his request for co-counsel with

specialized knowledge relating to the use of DNA evidence.

Further, to the extent that Johnson has raised a claim of

ineffective assistance of counsel in this argument, we do not

consider that contention in this appeal. See Roach, 251 Va. at

4
Johnson elected not to call his appointed DNA expert as a
witness.

26
335 n.4, 468 S.E.2d at 105 n.4; Hall v. Commonwealth, 30 Va.

App. 74, 82, 515 S.E.2d 343, 347 (1999); 1990 Va. Acts of

Assembly, ch. 74 (repealing Code § 19.2-317.1, which provided

for direct appeal of certain ineffective assistance of counsel

claims); see also Walker v. Mitchell, 224 Va. 568, 570, 299

S.E.2d 698, 699 (1983).

Photographs of Victim

On this subject, Johnson has assigned error on the

following basis: "The trial court erred in denying

[d]efendant's motion to exclude certain photographs of the

victim." However, Johnson has not addressed this assignment of

error in his brief, except with regard to "buttons" displaying a

photograph of the victim worn by certain members of the public

while in the courtroom. Therefore, our consideration of this

assignment of error will be limited to the buttons worn in the

courtroom, and we will not consider the trial court's admission

of photographs of the victim into evidence during trial. See

Rules 5:27, 5:17(c)(4).

Johnson contends that Hall's family and friends were

allowed to wear "campaign-size" buttons displaying Hall's

photograph in the courtroom. Johnson asserts that although the

jurors were not seated close enough to the audience to identify

Hall's image on the buttons, they could tell that the buttons

27
"ha[d] something to do with" Hall and, thus, the jurors were

improperly influenced.

We find no merit in this argument. There is nothing in the

record to support Johnson's contention that any of the jurors

saw buttons displaying Hall's photograph. When Johnson raised

his objection to the buttons at the beginning of trial, the

court ruled that the spectators would not be permitted to

display the buttons in any manner that would allow the jurors to

see them. The court also ruled that anyone wearing a button was

required to refrain from any contact with any of the jurors.

After the trial court stated these rulings, Johnson did not

object to the adequacy of the trial court's response or later

argue that any spectator had violated the trial court's

instructions. Thus, Johnson has waived any objection to the

trial court's rulings in response to his request that the

buttons "not be displayed." Rule 5:25.

V. GUILT PHASE ISSUES

Other Crimes Evidence

Johnson argues that the trial court erred in admitting the

testimony of Lavonda Scott and Janel Chambliss during the guilt

phase of his trial. He asserts that the facts in the cases of

Scott, Chambliss, and Hall contain no common aspects that are so

distinctive or idiosyncratic that they would permit an inference

that the same person committed all three crimes. We disagree.

28
 The standard governing the admission of evidence of other

crimes in the guilt phase of a criminal trial is well

established. Generally, evidence that shows or tends to show

that a defendant has committed a prior crime is inadmissible to

prove the crime charged. Guill v. Commonwealth, 255 Va. 134,

138, 495 S.E.2d 489, 491 (1998); Woodfin v. Commonwealth, 236

Va. 89, 95, 372 S.E.2d 377, 380 (1988), cert. denied, 490 U.S.

1009 (1989); Kirkpatrick v. Commonwealth, 211 Va. 269, 272, 176

S.E.2d 802, 805 (1970).

There are several exceptions to the general rule excluding

this type of evidence. Among other exceptions, evidence of

other crimes is admissible when relevant to show a perpetrator's

identity, if certain requirements are met. We discussed those

requirements in Chichester v. Commonwealth, 248 Va. 311, 326-27,

448 S.E.2d 638, 649 (1994), cert. denied, 513 U.S. 1166 (1995):

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

. . . .

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

29
 . . . .

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

Id. (quoting Spencer v. Commonwealth, 240 Va. 78, 89-90, 393

S.E.2d 609, 616-17, cert. denied, 498 U.S. 908 (1990)(citations

omitted)); see also Turner v. Commonwealth, 259 Va. ___, ___,

___ S.E.2d ___, ___ (2000) decided today; Guill, 255 Va. at 138-

39, 495 S.E.2d at 491-92.

Applying the Spencer standard, we conclude that the trial

court did not abuse its discretion in admitting the testimony of

Scott and Chambliss in the guilt phase of the trial. The three

crimes bear a singular strong resemblance to one another, based

on common incidents that are sufficiently idiosyncratic to

establish the probability of a common perpetrator. In addition,

the record supports a finding that the probative value of this

evidence of other crimes outweighed its potential prejudicial

effect.

The crimes committed against Scott, Chambliss, and Hall

occurred within a 60-day period. The victims were all young

African-American women. Each victim knew Johnson, and there

30
were no signs of forced entry into the dwellings in which the

crimes occurred. In each case, the attacker used a "steak"

knife that he obtained in the victim's dwelling. Each victim

was raped, and the attacker stabbed the victims who resisted

him.

The attacker asked Scott and Chambliss for a drink of water

before he attacked them, and a bloodstained broken drinking

glass was found in the kitchen of Hall's apartment. Hamilton

estimated that the DNA from the blood found on the broken glass,

which matched Johnson's DNA, would occur once in 980 times in

the Black population. Finally, the attacker ordered both Scott

and Chambliss to disrobe completely, and Hall's clothes were

found intact on the floor of her apartment near her nude body.

Chain of Custody of Blood Sample

Johnson argues that the trial court erred in admitting into

evidence the analysis of the blood sample taken from him for

inclusion in the DNA data bank while he was incarcerated at

Southampton Correctional Institute in September 1995. He

asserts that the Commonwealth did not establish the chain of

custody of the blood sample, and he contends that the

Commonwealth had "insufficient controls . . . to conclusively

track a sample once it reaches the lab to insure that one

specimen is not mixed with another." We find no merit in this

argument.

31
 A chain of custody is properly established when the

Commonwealth's evidence provides reasonable assurance that the

sample to be admitted at trial is the same sample, and in the

same condition, as when it was first obtained. Vinson v.

Commonwealth, 258 Va. 459, 469, 522 S.E.2d 170, 177, (1999);

Pope v. Commonwealth, 234 Va. 114, 121, 360 S.E.2d 352, 357

(1987), cert. denied, 485 U.S. 1015 (1988). Thus, under this

standard, the Commonwealth is not required to eliminate every

conceivable possibility of substitution, alteration, or

tampering. Pope, 234 Va. at 121, 360 S.E.2d at 357; Alvarez v.

Commonwealth, 24 Va. App. 768, 776, 485 S.E.2d 646, 650 (1997).

In the present case, the Commonwealth proved that Ann

Chavis drew Johnson's blood, and that she taped and initialed

the vial containing the sample before delivering it to Deborah

Harrell. Harrell kept the sample in her custody until

delivering it to Diane Hamilton at the Division of Forensic

Science DNA laboratory. The sample remained in the custody and

control of the DNA laboratory until it was analyzed.

We also note that under Code § 19.2-187.01, an attested

report of analysis from the Division of Forensic Science is

prima facie evidence of custody from the time a sample is

received by the laboratory until it is released after testing.

Johnson presented no evidence to overcome the Commonwealth's

introduction of this prima facie evidence, or the direct

32
evidence of actual custody of the blood sample. Therefore, the

Commonwealth met its burden of demonstrating a reasonable

assurance that Johnson's blood sample was the same sample, and

in the same condition, as when it first was obtained.

Testimony of DNA Expert Witnesses

Johnson contends that Jean Hamilton and George Li lacked

sufficient expertise to testify concerning "population and

statistical genetics." Thus, he disputes the admission of their

testimony regarding the statistical probability that someone

other than Johnson would have the same DNA profile as the donor

of the DNA found on evidence collected from Hall's apartment.

We disagree with Johnson's argument.

The issue whether a witness is qualified to testify as an

expert on a given subject is a matter submitted to the trial

court's discretion, and the trial court's ruling in this regard

will not be disturbed on appeal unless it plainly appears that

the witness was not qualified. Spencer v. Commonwealth, 238 Va.

295, 305, 384 S.E.2d 785, 792 (1989), cert. denied, 493 U.S.

1093 (1990); Lane v. Commonwealth, 223 Va. 713, 718, 292 S.E.2d

358, 361 (1982); Wileman v. Commonwealth, 24 Va. App. 642, 647,

484 S.E.2d 621, 624 (1997).

Li testified that he was the supervisor of forensic biology

examiners at the Division of Forensic Science laboratory in

Richmond, and that he also conducted forensic biology

33
examinations as part of his duties. Li holds a Master of

Science degree in forensic science. He received training in DNA

analysis, including statistical issues involved in such

analysis, from the Federal Bureau of Investigation. Li had

trained both investigators and technicians on the theory and

technique of DNA typing, and was an instructor in the graduate

program in forensic science at Virginia Commonwealth University.

He had performed DNA analyses on thousands of samples and

previously had qualified as an expert witness in the field of

forensic science. He explained that forensic DNA analysis

involves a determination whether a person can be eliminated as a

source of DNA found at a crime scene, as well as a determination

regarding how frequently a particular DNA profile appears in the

general population.

Hamilton testified that she holds a Master of Science

degree in forensic science, and has been employed by the

Commonwealth Division of Forensic Science for 12 years as a

forensic scientist. She also completed undergraduate and

graduate level courses in statistics. Hamilton explained that

part of her work in DNA analysis involves an assessment of the

approximate frequency that a particular DNA profile appears in

the general population. She also stated that she previously has

testified as an expert witness regarding such probabilities.

Based on this foundation testimony, we conclude that the trial

34
court did not abuse its discretion in allowing Li and Hamilton

to testify concerning the statistical probabilities at issue in

this case.

Evidence of Third Party Guilt

Johnson argues that the trial court erred in refusing to

allow him to present testimony that would have proved that Leroy

Quick, III, was the person who raped and murdered Hope Hall.

Johnson proffered the testimony of Natalie Williams, Hall's co-

worker, who would have testified that Hall received flowers from

Quick shortly before she was murdered, and that Hall told

Williams that Hall did not "want to have anything to do with"

Quick because he was "crazy." Johnson also proffered the

testimony of three women who worked in the rental office of

Hall's apartment complex who would have testified that within 30

days before the murder, Hall expressed "concern and

apprehension" about a person she used to date. 5 One of these

rental office workers, Dolores Reid, also would have testified

that about one month before the murder, she saw Leroy Quick grab

Hall in an attempt to "get her to go from one room to another."

5
Johnson also argues on appeal that the trial court erred in
refusing to admit testimony from two of Hall's neighbors who saw
Quick approach Hall's apartment the night she was murdered.
However, the record reveals that the defense presented the
testimony of these two neighbors. The defense also called
Officer Carter Burnette of the Petersburg Bureau of Police who
testified concerning the neighbors' statements and their
identification of Quick from photographic lineups.

35
 We find no merit in Johnson's argument that the trial court

abused its discretion in refusing to admit this evidence.

Proffered evidence "that merely suggests a third party may have

committed the crime charged is inadmissible; only when the

proffered evidence tends clearly to point to some other person

as the guilty party will such proof be admitted." Soering v.

Deeds, 255 Va. 457, 464, 499 S.E.2d 514, 518 (1998). We have

stated that "a large discretion must and should remain vested in

the trial court as to the admission of this class of testimony."

Karnes v. Commonwealth, 125 Va. 758, 766, 99 S.E. 562, 565

(1919); see also Oliva v. Commonwealth, 19 Va. App. 523, 527,

452 S.E.2d 877, 880 (1995); Weller v. Commonwealth, 16 Va. App.

886, 890, 434 S.E.2d 330, 333 (1993).

In Karnes, we reversed a defendant's conviction because the

trial court refused to admit evidence of death threats that a

third party had made to the victim shortly before she was

murdered. 125 Va. at 766-67, 99 S.E. at 565. In Oliva, the

Court of Appeals reversed a defendant's conviction because the

trial court excluded testimony from a witness who had observed

someone other than the defendant, but who resembled him, running

from the scene of the crime. 19 Va. App. at 528-29, 452 S.E.2d

at 881.

In contrast to the evidence at issue in Karnes and Oliva,

the proffered testimony at issue here bore no direct relation to

36
the crimes charged. Instead, the proffered testimony tended to

prove only that Hall had a poor relationship with Quick, and

such evidence would have invited the jury to speculate that

these difficulties caused Quick to rape and murder Hall.

Moreover, Hamilton testified that she had eliminated Quick as a

possible source of the DNA found on the crime scene evidence.

Thus, we hold that the trial court did not abuse its discretion

in excluding the proffered evidence.

Sufficiency of Evidence of Rape

Johnson argues that the trial court erred in denying his

motion to strike the rape charge and the reference to rape or

attempted rape in the capital murder charge. He contends that

the evidence was insufficient to support a finding of rape

because there was no evidence of trauma to Hall's vaginal area,

no evidence of penetration, and only one injury, a ragged

fingernail, that could be considered a defensive injury. We

disagree with Johnson's argument.

"Rape is defined as 'sexual intercourse against the

victim's will by force, threat, or intimidation.'" Wilson v.

Commonwealth, 249 Va. 95, 100, 452 S.E.2d 669, 673, cert.

denied, 516 U.S. 841 (1995)(quoting Hoke v. Commonwealth, 237

Va. 303, 310, 377 S.E.2d 595, 599, cert. denied, 491 U.S. 910

(1989)); see Code § 18.2-61. "Penetration by a penis of a

vagina is an essential element of the crime of rape; proof of

37
penetration, however slight the entry may be, is sufficient."

Moore v. Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740

(1997)(quoting Elam v. Commonwealth, 229 Va. 133, 115, 326

S.E.2d 685, 686 (1985)).

Hamilton testified that the DNA from the sperm taken from

Hall's vagina matched Johnson's DNA sample. The presence of

Johnson's sperm in Hall's vagina alone is sufficient to support

the finding that penetration occurred. Spencer, 238 Va. at 284,

384 S.E.2d at 780. The evidence also was overwhelming that Hall

did not consent to having sexual intercourse with Johnson. Hall

sustained 15 stab wounds in her struggle with her attacker. She

also sustained facial abrasions, and she had a broken fingernail

that Dr. Deborah Kay characterized as a "defense-type" injury.

Thus, the trial court did not err in refusing to strike the rape

charge and the reference to rape and attempted rape in the

capital murder charge.

VI. SENTENCE REVIEW

Passion and Prejudice

Under Code § 17.1-313(C), we review the death sentence

imposed on Johnson to determine whether it (1) was imposed under

the influence of passion, prejudice, or any other arbitrary

factor; or (2) is excessive or disproportionate to the penalty

imposed in similar cases, considering both the crime and the

defendant. Johnson contends that the jury imposed the death

38
sentence based on passion after the Commonwealth presented

emotional testimony from Hall's mother and the father of Hall's

young son, as well as the testimony of the two victims of the

rapes Johnson committed in New Jersey and New York. We find no

merit in this argument.

The victim impact evidence received in this case addressed

the substantial impact that Hall's murder had on the lives of

her mother and her son. This testimony plainly was admissible

for the jury's consideration in the sentencing process. See

Payne v. Tennessee, 501 U.S. 808, 827 (1991); Kasi, 256 Va. at

422, 508 S.E.2d at 65; Beck, 253 Va. at 381, 484 S.E.2d at 903.

In addition, the evidence of other rapes committed by Johnson

was admissible since it was relevant to the jury's determination

of future dangerousness. See Orbe v. Commonwealth, 258 Va. 390,

401, 519 S.E.2d 808, 814 (1999); Walker, 258 Va. at 64, 515

S.E.2d at 571. Based on our independent review of the entire

record as required by Code § 17.1-313(C)(1), we conclude that

there is no evidence that the death sentence was "imposed under

the influence of passion, prejudice or any other arbitrary

factor." 6

6
At oral argument in this appeal, Johnson argued for the
first time that the trial court erred in failing to instruct the
jury that he was ineligible for parole, pursuant to Simmons v.
South Carolina, 512 U.S. 154, 168-69 (1994). We do not consider
this argument on appeal because Johnson failed to raise it in
the trial court or in his brief filed with this court. See

39
 Excessiveness and Proportionality

Johnson contends that the death sentence imposed in this

case is disproportionate and excessive when compared to the

penalties imposed on other 16-year-old males who committed like

offenses. In support of his argument, he cites the dissenting

opinion in Jackson, 255 Va. at 652-56, 499 S.E.2d at 555-57. We

disagree with Johnson's argument.

In conducting our proportionality review, we must determine

whether "other sentencing bodies in this jurisdiction generally

impose the supreme penalty for comparable or similar crimes,

considering both the crime and the defendant." Jenkins v.

Commonwealth, 244 Va. 445, 461, 423 S.E.2d 360, 371 (1992),

cert. denied, 507 U.S. 1036 (1993); see also Hedrick v.

Commonwealth, 257 Va. 328, 342, 513 S.E.2d 634, 642 cert.

denied, ___ U.S. ___, 120 S.Ct. 376 (1999). We compare the

record in this case with the records of other capital murder

cases, including those cases in which a life sentence has been

imposed. We have examined the records of all capital cases

reviewed by this Court pursuant to Code § 17.1-313(E). Since

the jury imposed the death sentence based on both the future

dangerousness and vileness predicates, we give particular

Rules 5:25 and 5:17(c). We also observe that when the jury
inquired whether a life sentence would allow the possibility of
parole, and the trial court instructed the jury to follow the

40
consideration to other capital murder cases in which the death

penalty was obtained under both predicates.

Johnson's age at the time he committed the offenses is only

one factor to consider in determining whether other juries

generally impose the death sentence for similar crimes. The

record also shows that he committed five rapes within a seven-

month period. Johnson beat and stabbed one rape victim, in

addition to inflicting multiple stab wounds in his murder of

Hall. The stab wounds inflicted on Hall that resulted in her

murder reflect an aggravated battery of the victim and an

escalating pattern of violence in Johnson's commission of the

five rapes cited above.

Juries in this Commonwealth generally, with some

exceptions, have imposed the death sentence for convictions of

capital murder based on findings of future dangerousness and

vileness in which the underlying predicate crimes involved

violent sexual offenses and the defendant had committed violent

offenses on other occasions. See, e.g., Vinson, 258 Va. 459,

522 S.E.2d 170; Cherrix, 257 Va. 292, 513 S.E.2d 642; Hedrick,

257 Va. 328, 513 S.E.2d 634; Barnabei v. Commonwealth, 252 Va.

161, 477 S.E.2d 270 (1996), cert. denied, 520 U.S. 1224 (1997);

Wilson, 249 Va. at 105, 452 S.E.2d at 676; Williams v.

instructions given and not concern itself with "what happens
after sentence," Johnson did not raise an objection.

41
Commonwealth, 248 Va. 528, 450 S.E.2d 365 (1994), cert. denied,

515 U.S. 1161 (1995); Breard, 248 Va. at 89, 445 S.E.2d at 682;

Mueller v. Commonwealth, 244 Va. 386, 422 S.E.2d 380 (1992)

cert. denied, 507 U.S. 1043 (1993); Spencer, 238 Va. 295, 384

S.E.2d 785; Coleman v. Commonwealth, 226 Va. 31, 307 S.E.2d 864

(1983), cert. denied, 465 U.S. 1109 (1984). Based on this

review, we hold that Johnson's death sentence is neither

excessive nor disproportionate to penalties imposed by other

sentencing bodies in the Commonwealth for comparable crimes,

considering both the crime and the defendant.

VII. CONCLUSION

We find no reversible error in the judgments of the trial

court. Having reviewed Johnson's death sentence pursuant to

Code § 17.1-313, we decline to commute the sentence of death.

Accordingly, we will affirm the trial court's judgments.

Record No. 992525 — Affirmed.
Record No. 992526 — Affirmed.

42