Orbe v. Commonwealth

Present: All the Justices

DENNIS MITCHELL ORBE

v. Record Nos. 990363 & 990364 OPINION BY
JUSTICE CYNTHIA D. KINSER
COMMONWEALTH OF VIRGINIA September 17, 1999

FROM THE CIRCUIT COURT OF YORK COUNTY
N. Prentis Smiley, Jr., Judge

A jury convicted the defendant, Dennis Mitchell Orbe,

of four charges in connection with a murder during the

commission of robbery. Those convictions are: (1) capital

murder, in violation of Code § 18.2-31(4); (2) use or

display of a firearm while committing murder, in violation

of Code § 18.2-53.1; (3) robbery, in violation of Code

§ 18.2-58; and (4) use or display of a firearm while

committing robbery, in violation of Code § 18.2-53.1.

At the conclusion of the sentencing phase of a

bifurcated trial, the jury fixed the defendant’s punishment

at death for the capital murder, 50 years for the robbery,

and 5 years for each of the firearms offenses. The jury

imposed the sentence of death based on its finding of

future dangerousness under Code §§ 19.2-264.2 and -264.4.

After reviewing the post-sentence report required by Code

§ 19.2-264.5, the trial court sentenced the defendant in

accordance with the jury verdicts.
 The defendant appealed his non-capital convictions to

the Court of Appeals pursuant to Code § 17.1-406. 1 We

certified that appeal (Record No. 990364) to this Court

under the provisions of Code § 17.1-409 for consolidation

with the defendant’s appeal of his capital murder

conviction (Record No. 990363) and the sentence review

mandated by Code § 17.1-313.

On appeal, the defendant challenges the trial court’s

refusal to instruct the jury on lesser included offenses,

the finding of future dangerousness based on consideration

of unadjudicated criminal acts, the admission of

photographic evidence, and the court’s refusal to allow the

defendant to mail a questionnaire to prospective jurors.

After considering each of these arguments and conducting

our statutory review pursuant to Code § 17.1-313, we find

no error in the defendant’s convictions and sentence of

death. Thus, we will affirm the judgments of the circuit

court.

I. FACTS

A. GUILT PHASE

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

2
 The criminal offenses for which the defendant was

convicted occurred at a gas station and convenience store

located in York County. The convenience store was equipped

with a video camera recording system that monitored three

areas of the premises, including the check-out counter and

cash register. The camera focused on the cash register

captured the incident that is pertinent to this appeal and

recorded it on a video tape. That tape reveals the

following sequence of events. 2

Near 3:38 a.m. on January 24, 1998, the defendant

entered the convenience store, walked up to the check-out

counter where Richard Sterling Burnett was working as a

clerk, and pointed a revolver at Burnett’s chest. 3 After

Burnett opened the cash register drawer, the defendant shot

him in the chest. As Burnett was clutching his chest and

struggling to remain in a standing position, the defendant

walked around the counter, reached into the cash register

2
At trial, the Commonwealth introduced the video tape
recording into evidence and played it for the jury.
3
The defendant had been in the store on two occasions
on January 23 but had purchased nothing.

3
drawer, and removed some money from it. 4 He then fled from

the store.

A short while later, a customer at the convenience

store discovered Burnett’s body and called for emergency

assistance. F.T. Lyons, an investigator with the York

County Sheriff’s Office, arrived on the scene about 4:25

a.m. Investigator Lyons found Burnett’s body "on the floor

. . . behind the register." He collected several items

from the store for evidentiary purposes, including the

video tape recording. He took the video tape to the

sheriff’s office where he used computer equipment to view

it "frame by frame." Lyons captured images from the video

tape, digitized and saved them, and then printed several of

the images. He distributed those printed images to area

law enforcement agencies and the media.

The sheriff’s office subsequently received several

telephone calls from persons who identified the defendant

as the individual in the pictures that Lyons had

distributed. Investigator Lyons then obtained warrants

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

4
charging the defendant with capital murder, robbery, and

use of a firearm in the commission of murder. 5

The defendant was not apprehended, however, until

January 31, 1998, after a high-speed chase through the

streets of Richmond. During the police officers’ pursuit,

the defendant drove his car across a concrete median strip

and struck a telephone pole, then proceeded to drive on the

wrong side of the road, and accelerated through a

roadblock. Eventually, the defendant jumped out of his

vehicle and ran on foot until police officers captured him

at the end of an alley.

After placing the defendant under arrest, a police

officer searched the defendant’s person. During the

search, the officer found a partially loaded .357 magnum

revolver in the waistband of the defendant’s pants. 6

Investigator Lyons eventually took possession of the weapon

recovered from the defendant and submitted it to the

5
In addition to these three charges, a grand jury
subsequently indicted the defendant for use of a firearm
during the commission of robbery.
6
Willis L. Branch, Jr., the defendant’s stepfather,
testified that, sometime during the first or second week of
January, he discovered that his .357 magnum revolver was
missing from the home that Branch shared with the defendant
and his mother. At trial, Branch identified the revolver
recovered from the defendant as having the same serial
number as the one that was missing from his home.

5
Commonwealth of Virginia Department of Criminal Justice

Services, Division of Forensic Science, for testing.

Scott A. Glass, a forensic scientist who works in the

field of firearm and tool mark identification at the

Division of Forensic Science, tested the revolver along

with a "lead semi-wadcutter" 7 bullet that had been removed

from Burnett’s chest during an autopsy. Based on the

results of his analysis, Glass concluded that the bullet

had been fired from the .357 magnum revolver.

Dr. Elizabeth Kinnison, a pathologist and an Assistant

Chief Medical Examiner for the Commonwealth of Virginia,

performed the autopsy on Burnett’s body. During the

autopsy, Dr. Kinnison recovered the bullet from the right

side of Burnett’s back where it was lodged. According to

Dr. Kinnison, Burnett had "sustained one gunshot wound to

the front of the left chest[,]" which was the cause of

death. Dr. Kinnison stated that Burnett died "[p]rimarily

from hemorrhage or bleeding from these wounds" and that

"[t]he structures that were injured that were vital were

the heart and the liver and the lung, which all would have

caused internal bleeding." She further testified that a

person sustaining this type of injury "[m]ight have been in

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

6
some pain associated with the skin[,]" would have suffered

increasing problems with breathing as blood was lost, and

would have become dizzy and eventually unconscious before

dying.

B. SENTENCING PHASE

During the sentencing phase of the trial, the

Commonwealth presented evidence to prove the defendant’s

future dangerousness. The evidence concerned other

criminal acts that the defendant had committed in three

separate incidents.

The first incident occurred on January 21, 1998. Lois

Jones testified that when she and her boyfriend, Mark

Scougal, returned home, Scougal discovered the defendant in

a bedroom. The defendant pointed a gun at Scougal and

ordered Scougal to drive him "somewhere else" because he

was hiding from the police. As the defendant was forcing

Scougal to a car, Jones retrieved a gun from her gun

cabinet, loaded it, and went out onto the front porch of

her house in order to stop the defendant. Although there

was conflicting testimony about whether Jones then fired

her gun up into the air, the defendant shot at Jones twice.

His second shot hit Jones in the calf of her leg and

shattered the bone. The defendant then demanded that

7
cougal give him the car keys, but when Scougal refused to

comply, the defendant fled from the scene.

The second episode, also on January 21, 1998, involved

Charles Powell and William Bottoms, two elderly gentlemen.

While Powell and Bottoms were sitting in the front yard of

Bottoms’ Richmond home, the defendant approached the two

men and ordered them to walk to the rear of the house. The

defendant displayed a weapon to the men and stated that he

"[had] nothing to lose." After questioning both men about

the location of their cars, keys, and wallets, the

defendant took Powell’s car and left in it.

Karen Glenn and Patricia Tuck testified about the

third incident, which occurred on January 30, 1998. After

Glenn, Tuck, and another woman arrived at a private

residence in New Kent County to perform cleaning services,

the defendant, who was already inside the house, approached

the women, brandished a handgun, and yelled, "Bitches, get

down." As they were starting to "get down," the defendant

hit Tuck between her shoulder blades with the gun. He then

ordered the three women to crawl on their stomachs to a

bedroom. Once the women were in the bedroom, the defendant

made them go into a closet. He then nailed a piece of

plywood across the closet door. The women were trapped

inside the closet for approximately four and one-half

8
hours, until the homeowner returned and found them. During

this ordeal, the defendant proclaimed, "I’m Dennis Orbe,

I’m wanted for murder, and it doesn’t matter what I do."

He also directed the women to empty their pockets and took

money, checks, and other valuables, including the keys to

Glenn’s car, from them. He stole the car.

In accordance with Code § 19.2-264.4(B), the jury also

heard evidence "in mitigation of the offense." The

defendant’s mother and step-father testified about the

defendant’s troubled childhood and his problems with

alcohol abuse. One of his friends described a change in

the defendant’s behavior shortly before the incidents in

January 1998, and the administrator of a regional jail,

where the defendant had been incarcerated, testified that

he had received only one minor complaint with regard to the

defendant’s behavior during his confinement.

The defendant also presented testimony from Dr. Thomas

A. Pasquale, a clinical psychologist who had evaluated the

defendant for purposes of mitigation and risk assessment

regarding the defendant’s future dangerousness. Dr.

Pasquale testified that the defendant had exhibited

suicidal intentions at least a year prior to the events

that transpired in January 1998 and that the defendant was

depressed, in part, over his perceived failure as a father

9
and husband. Dr. Pasquale further reported that the

defendant drank heavily and had an impulse control

dysfunction.

During his evaluation, Dr. Pasquale learned that the

defendant’s father had abandoned the defendant at an early

age. Consequently, Dr. Pasquale opined that the defendant,

who had recently located his father, might have wished to

visit his father again and that he had decided to obtain

money illegally to accomplish that purpose. According to

Dr. Pasquale, the defendant thus "reasoned his way to

intrude into a number of individuals’ lives by way of

robbery, home invasion, weapons discharge[,] . . .

brandishing and general intimidation."

In conclusion, Dr. Pasquale testified that he did not

perceive the defendant as being a future danger in a prison

setting unless he was able to access alcohol inside the

prison, was abused by those within the prison system, or

was placed under conditions of duress while incarcerated.

However, Dr. Pasquale stated that, if the defendant escaped

from a penitentiary, it would be a "very dangerous, very

risky" situation.

II. ANALYSIS

A. INSTRUCTIONS ON LESSER INCLUDED OFFENSES

10
 In his first argument, 8 the defendant asserts that his

death sentence was imposed under the influence of passion,

prejudice, or other arbitrary factors. Specifically, he

contends that the circuit court erred in refusing to grant

an instruction on first degree murder and an instruction on

determining the grade of the offense of homicide. 9 The

defendant makes the same argument on appeal but also

asserts that the instructions should have been given to the

jury because the question whether the defendant acted

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

Although the defendant filed 17 assignments of error
in this Court, he argued on brief only 10 of them. The
assignments of error that he did not argue, and that we
will therefore not consider, are numbers 6, 8, 9, 12, 15,
16, and 17. See Quesinberry v. Commonwealth, 241 Va. 364,
370, 402 S.E.2d 218, 222, cert. denied, 502 U.S. 834
(1991)(holding assignments of error not argued on brief are
waived for purposes of appeal).
9
Although the defendant stated at trial that he was
not requesting an instruction on second degree murder, one
of his proffered instructions included not only the
elements of first degree murder but also those of second
degree murder and voluntary manslaughter. His other
instruction advised the jury that, if a reasonable doubt
exists as to the grade of the offense, the jury must
resolve that doubt in favor of the defendant.

11
maliciously was disputed. 10 We do not agree with the

defendant’s argument.

It is well-established in Virginia that jury

instructions “are proper only if supported by the evidence,

and that more than a scintilla of evidence is necessary to

support a lesser-included offense instruction requested by

the defendant.” Commonwealth v. Donkor, 256 Va. 443, 445,

507 S.E.2d 75, 76 (1998). We have also recognized that

“evidence showing a murder ‘to have been deliberate,

premeditated and wilful could be so clear and

uncontroverted that a trial court could properly refuse to

instruct on the lesser included offenses.’” Buchanan v.

Commonwealth, 238 Va. 389, 409, 384 S.E.2d 757, 769 (1989),

cert. denied, 493 U.S. 1063 (1990)(quoting Painter v.

Commonwealth, 210 Va. 360, 366, 171 S.E.2d 166, 171

(1969)).

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

12
 The evidence in the present case does not support the

defendant’s proffered instructions. An instruction on

first degree murder was not warranted because the video

tape clearly established that Burnett was shot in the chest

during the commission of armed robbery at the convenience

store. See Bennett v. Commonwealth, 236 Va. 448, 470, 374

S.E.2d 303, 317 (1988), cert. denied, 490 U.S. 1028 (1989)

(holding first degree murder instruction not warranted

because defendant adduced no evidence that victim was not

murdered during commission of robbery). Thus, the sole

issue was whether the defendant was the person who killed

Burnett, i.e., was he “guilty or innocent of the capital

offense.” Frye v. Commonwealth, 231 Va. 370, 389, 345

S.E.2d 267, 281 (1986). Also, the record does not contain

a scintilla of evidence that the defendant acted without

premeditation or malice so as to justify an instruction on

second degree murder or voluntary manslaughter,

respectively. See Donkor, 256 Va. at 445, 507 S.E.2d at

76. Accordingly, we find no error in the circuit court’s

judgment refusing to grant these two instructions.

B. FUTURE DANGEROUSNESS BASED ON
UNADJUDICATED CRIMINAL ACTS

held in the most rearward position” in order for the gun to
fire.

13
 Next, the defendant challenges the imposition of the

death penalty based on the finding that “he would commit

criminal acts of violence that would constitute a

continuing serious threat to society” pursuant to Code

§ 19.2-264.4(C). The defendant’s attack with regard to

this issue is threefold. He first asserts that the

evidence was insufficient as a matter of law to establish

future dangerousness because he “had no prior history of

significant violent offenses.” He next contends that the

trial court applied an incorrect legal standard in

determining future dangerousness. Finally, he argues that

the introduction into evidence of unadjudicated criminal

acts violates the Constitution of the United States and the

Constitution of Virginia because there is no requirement

that such acts be proven beyond a reasonable doubt. 11 We do

not agree with any of the defendant’s arguments.

As to the first prong of the defendant’s attack, we

find sufficient evidence of future dangerousness to support

the imposition of the death penalty. During the month of

January 1998, the defendant committed numerous criminal

acts in three separate episodes, in addition to the robbery

and murder of Burnett. On January 21, he entered Jones’

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

14
home while no one was present and then shot Jones in the

leg when she attempted to stop the defendant’s abduction of

Scougal. That same day, the defendant used a firearm to

rob Powell. Then on January 30, the day before the

defendant was apprehended, he abducted and robbed three

women, again using a firearm, and left them in a small

closet after nailing the door shut. This evidence

establishes beyond a reasonable doubt “a probability that

the defendant would commit criminal acts of violence that

would constitute a continuing serious threat to society.”

Code § 19.2-264.2; see also § 19.2-264.4(C). Thus, the

trial court did not err in refusing to strike the

Commonwealth’s evidence with regard to the defendant’s

future dangerousness.

The defendant’s next argument is that the trial court

adopted the wrong legal standard when it used the phrase

“sufficient probable cause” in the following statement,

which the court made while overruling the defendant’s

motion to strike the Commonwealth’s evidence at sentencing:

“The matter of future dangerousness, again, the evidence —

there is evidence before the Court and before this jury and

the jury will make the determination as to whether there is

sufficient probable cause — probability that the Defendant

15
is guilty of any future dangerousness.” We do not agree

with the defendant’s contention for two reasons.

First, we believe that the court’s use of that phrase

was a misstatement because the court immediately corrected

itself by using the term “probability.” The term

“probability” is part of the criteria set forth in Code

§ 19.2-264.4(C) for determining future dangerousness: “The

penalty of death shall not be imposed unless the

Commonwealth shall prove beyond a reasonable doubt that

there is a probability based upon evidence of the prior

history of the defendant . . . that he would commit

criminal acts of violence that would constitute a

continuing serious threat to society.” (Emphasis added.)

See also Code § 19.2-264.2. Furthermore, the court

properly instructed the jury in accordance with this

statutory provision. Thus, we conclude that the trial

court decided the motion to strike on the issue of future

dangerousness under the appropriate standard.

We also find no merit in the third aspect of the

defendant’s argument regarding future dangerousness. The

defendant asserts that the Commonwealth used unadjudicated

criminal acts that had not been proven beyond a reasonable

doubt to establish future dangerousness. However, most of

the criminal acts about which the jury heard evidence had

16
been adjudicated. The record shows that, before the

sentencing hearing in this case, the defendant had been

found guilty, based on his guilty pleas, of the offenses

that he committed on January 21 in the City of Richmond and

those that he committed on January 30 in New Kent County.

As to those criminal acts that were unadjudicated on

the date of the sentencing hearing in the present case, we

have previously construed Code § 19.2-264.4(C) “to permit

the admission into evidence of unadjudicated misconduct.”

Spencer v. Commonwealth, 238 Va. 295, 317, 384 S.E.2d 785,

799 (1989), cert. denied, 493 U.S. 1093 (1990). Moreover,

we specifically held in Walker v. Commonwealth, 258 Va. 54,

66, 515 S.E.2d 565, 572 (1999), that evidence of each

unadjudicated criminal act admitted to show a defendant’s

future dangerousness is not subject to the reasonable doubt

standard. Rather, the finding of future dangerousness must

be supported by proof beyond a reasonable doubt. Id. The

defendant has offered no reason why we should depart from

these precedents. Accordingly, we will not disturb the

circuit court’s judgment on this issue.

C. ADMISSION INTO EVIDENCE OF PHOTOGRAPHS OF VICTIM

The defendant contends that the circuit court erred in

overruling a pretrial motion in limine to exclude

photographs of the victim, including autopsy photographs,

17
from being introduced into evidence at trial. 12 The

defendant argues that, since he had stipulated that Burnett

was killed by a single gunshot wound to the chest, the

Commonwealth offered the photographs solely to arouse the

sympathy of the jury for the victim and to prejudice it

against him.

Over the defendant’s objections, the trial court

admitted into evidence photographs exhibiting the following

images: (1) the open cash register drawer and the victim

slumped on the floor behind the check-out counter; (2) a

closer view of Burnett’s body sitting on the floor; (3) a

small bruise on Burnett’s back where Dr. Kinnison found the

bullet; (4) the entry wound in Burnett’s chest; (5) the

victim’s condition upon arrival for the autopsy and his

blood-stained shirt; (6) Burnett with some of his friends;

and (7) Burnett sitting at a sound booth in his church.

These photographs accurately depict the crime scene and the

victim, and are therefore not rendered inadmissible simply

because they may be gruesome or shocking. Walker, 258 Va.

at 69, 515 S.E.2d at 574 (citing Walton v. Commonwealth,

256 Va. 85, 92, 501 S.E.2d 134, 138, cert. denied, ___ U.S.

___, 119 S.Ct. 602 (1998)). The photographs are relevant

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

18
to show “motive, intent, method, malice, premeditation and

the atrociousness of [the defendant’s] crimes.” Chichester

v. Commonwealth, 248 Va. 311, 326, 448 S.E.2d 638, 648

(1994), cert. denied, 513 U.S. 1166 (1995)(quoting Spencer,

238 Va. at 312, 384 S.E.2d at 796). Any prejudice to the

defendant resulting from the admission of the photographs

is outweighed by the photographs’ probative value. See Coe

v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986)

(holding probative value of evidence must be balanced

against any prejudicial effect). On appeal, we will not

disturb a trial court’s exercise of discretion in balancing

those competing considerations absent a clear abuse of

discretion. Id.

Furthermore, the defendant’s stipulation with regard

to the cause of Burnett’s death does not preempt the

introduction of the photographs into evidence. See Mackall

v. Commonwealth, 236 Va. 240, 253, 372 S.E.2d 759, 767-68

(1988), cert. denied, 492 U.S. 925 (1989) (holding autopsy

photograph of victim was admissible even if defendant

stipulated identity of victim). Thus, we conclude that the

trial court did not abuse its discretion in admitting the

photographs. See Clagett v. Commonwealth, 252 Va. 79, 87,

472 S.E.2d 263, 268 (1996), cert. denied, 519 U.S. 1122

(1997) (“The admission into evidence of photographs of the

19
body of a murder victim is left to the sound discretion of

the trial court and will be disturbed only upon a showing

of a clear abuse of discretion.”).

D. INDIVIDUAL VOIR DIRE AND JUROR QUESTIONNAIRES

Finally, in assignment of error number five, the

defendant claims that he was prejudiced by the court’s

refusal to permit him to mail a questionnaire to each

prospective juror. On brief, the defendant also argues

that he was denied a full and fair opportunity to examine

the venire because the circuit court did not allow him to

conduct individual voir dire. The defendant did not

include the issue regarding individual voir dire in an

assignment of error. Therefore, we will not consider it.

Rule 5:17(c). As to the issue properly preserved, we find

no error in the circuit court’s judgment.

The manner in which voir dire is conducted lies within

the trial court’s discretion, and its decisions concerning

voir dire will not be disturbed absent an abuse of

discretion. Fisher v. Commonwealth, 236 Va. 403, 410-11,

374 S.E.2d 46, 50 (1988), cert. denied, 490 U.S. 1028

(1989). We have previously decided that a trial court did

not abuse its discretion by refusing to allow a defendant

to send a questionnaire to prospective jurors. Hedrick v.

Commonwealth, 257 Va. 328, 337, 513 S.E.2d 634, 639 (1999);

20
Strickler v. Commonwealth, 241 Va. 482, 489-90, 404 S.E.2d

227, 232, cert. denied, 502 U.S. 944 (1991). Such a

practice “would detract from the trial judge’s ‘opportunity

. . . to observe and evaluate . . . prospective jurors

first hand.’” Id. at 490, 404 S.E.2d at 232 (quoting Pope

v. Commonwealth, 234 Va. 114, 124, 360 S.E.2d 352, 358

(1987), cert. denied, 485 U.S. 1015 (1988)). “[T]he

opportunity to see and hear the veniremen, when questioned

during voir dire, is crucial to the effective discharge of

the trial judge’s responsibility.” Strickler, 241 Va. at

490, 404 S.E.2d at 232. Thus, we conclude that the circuit

court did not abuse its discretion. 13

III. PASSION, PREJUDICE, AND PROPORTIONALITY REVIEW

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

21
 Pursuant to Code § 17.1-313(C)(1), we must determine

whether the death sentence in this case was imposed under

the influence of passion, prejudice, or other arbitrary

factors. Upon careful review of the record, we find no

evidence that any such factor was present or influenced

either the jury’s or the trial court’s sentencing decision.

The defendant’s only contention with regard to this issue

is that the sentence of death was imposed under the

influence of prejudice because the trial court did not

instruct the jury on lesser included offenses. We have

already addressed that question.

Code § 17.1-313(C)(2) requires us to determine whether

the sentence of death in this case is “excessive or

disproportionate to the penalty imposed in similar cases,

considering both the crime and the defendant.” Pursuant to

Code § 17.1-313(E), we have accumulated the records of all

capital murder cases reviewed by this Court. The records

include not only those capital murder cases in which the

death penalty was imposed, but also those cases in which

the trial court or jury imposed a life sentence and the

defendant petitioned this Court for an appeal. Whitley v.

Commonwealth, 223 Va. 66, 82, 286 S.E.2d 162, 171, cert.

denied, 459 U.S. 882 (1982).

22
 In complying with the statutory directive to compare

this case with “similar cases,” we have specifically

focused on cases in which an employee was murdered at a

business establishment during the commission of robbery and

the death penalty was imposed solely on the future
14
dangerousness predicate. See, e.g. Peterson v.

Commonwealth, 225 Va. 289, 302 S.E.2d 520, cert. denied,

464 U.S. 865, reh’g denied, 464 U.S. 1004 (1983)(accountant

murdered during armed robbery of store; defendant had prior

convictions for armed robbery, two of which occurred within

three weeks of the capital murder); Townes v. Commonwealth,

234 Va. 307, 362 S.E.2d 650 (1987), cert. denied, 485 U.S.

971 (1988)(female employee murdered during robbery of

store; defendant had 22 prior convictions for forgery and

uttering, 4 convictions for robbery, and convictions for

maiming, felony escape, and use of a firearm); Mackall, 236

Va. 240, 372 S.E.2d 759 (gas station cashier killed during

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

23
armed robbery; defendant’s criminal history included

larcenies, burglaries, threats of violence to correctional

officers, and possession of deadly weapon while

incarcerated); Dubois v. Commonwealth, 246 Va. 260, 435

S.E.2d 636 (1993), cert. denied, 511 U.S. 1012 (1994)(store

employee murdered during armed robbery; defendant

previously convicted of grand larceny, assault, and

possession of firearm as a convicted felon); Chichester,

248 Va. 311, 448 S.E.2d 638 (employee killed during armed

robbery of restaurant; defendant previously convicted of

carrying concealed weapon; and nine days before capital

murder offense, defendant robbed another restaurant);

Joseph v. Commonwealth, 249 Va. 78, 452 S.E.2d 862, cert.

denied, 516 U.S. 876 (1995) (employee murdered during armed

robbery of restaurant; defendant had assaulted police

officer, had been in possession of loaded revolver and

crack cocaine, and had participated in abduction of two

store clerks during armed robbery). We have also reviewed

cases in which the defendant received a life sentence,

rather than the death penalty, for capital murder during

the commission of robbery. See, e.g. Johnson v.

Commonwealth, 221 Va. 736, 273 S.E.2d 784, cert. denied,

454 U.S. 920 (1981); Bowling v. Commonwealth, 12 Va. App.

166, 403 S.E.2d 375 (1991); Wilkins v. Commonwealth, appeal

24
denied, No. 840142 (Va. Oct. 10, 1984); Freeman v.

Commonwealth, appeal denied, No. 830290 (Va. Jan. 25,

1984).

The purpose of our comparative review is to reach a

reasoned judgment regarding what cases justify the

imposition of the death penalty. We cannot insure complete

symmetry among all death penalty cases, but our review does

enable us to identify and invalidate a death sentence that

is “excessive or disproportionate to the penalty imposed in

similar cases.” Code § 17.1-313(C)(2); see Tennessee v.

Bland, 958 S.W.2d 651, 665 (Tenn. 1997), cert. denied, ___

U.S. ___, 118 S.Ct. 1536 (1998)(The court’s “function in

performing comparative review is not to search for proof

that a defendant’s death sentence is perfectly symmetrical,

but to identify and invalidate the aberrant death

sentence.”). The defendant has not argued that the

sentence of death in his case is disproportionate, and

based on our review of this case and “similar cases,” we

conclude that the defendant’s sentence of death is not

excessive or disproportionate to sentences generally

imposed in this Commonwealth for capital murders comparable

to the defendant’s murder of Burnett.

For these reasons, we find no error either in the

judgments of the circuit court or in the imposition of the

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death penalty. Therefore, we will affirm the judgments of

the circuit court.

Record No. 990363--Affirmed.
Record No. 990364--Affirmed.

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