Morrisette v. WARDEN OF SUSSEX I

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond, on Friday, the 3rd day of
June, 2005.

WILLIAM WILTON MORRISETTE, III, Petitioner,

against Record No. 040275

WARDEN, SUSSEX I STATE PRISON, Respondent.

UPON A PETITION FOR WRIT OF HABEAS CORPUS

In August 2001, a jury in the Circuit Court for the City of

Hampton convicted William Wilton Morrisette, III, of rape and

capital murder during the commission of rape. Finding that the

Commonwealth had proven beyond a reasonable doubt both

aggravating factors of “future dangerousness” and “vileness,”

see Code § 19.2-264.2, the jury fixed Morrisette’s sentence at

death on the capital murder conviction and at life imprisonment

on the rape conviction. The trial court sentenced Morrisette in

accordance with the jury’s verdict. This Court affirmed the

convictions and the sentence of death. Morrisette v.

Commonwealth, 264 Va. 386, 400, 569 S.E.2d 47, 56 (2002), cert.

denied, 540 U.S. 1077 (2003).

Pursuant to the provisions of Code § 8.01-654(C),

Morrisette filed a petition for writ of habeas corpus against

the warden of the Sussex I State Prison (Warden). In his

petition, Morrisette raises claims of substantive errors and

1
claims of ineffective assistance of counsel during the guilt and

penalty phases of his trial. The Court will first address

Morrisette’s claims concerning the guilt phase of his trial.

The Court will then address Morrisette’s penalty phase claims.

I. GUILT PHASE ISSUES

A. PROCEDURAL DEFAULTS

A petition for writ of habeas corpus is not a substitute

for an appeal or a writ of error. Slayton v. Parrigan, 215 Va.

27, 29, 205 S.E.2d 680, 682 (1974), cert. denied, 419 U.S. 1108

(1975); Brooks v. Peyton, 210 Va. 318, 321-22, 171 S.E.2d 243,

246 (1969).

The trial and appellate procedures in Virginia are
adequate in meeting procedural requirements to
adjudicate State and Federal constitutional rights and
to supply a suitable record for possible habeas corpus
review. A prisoner is not entitled to use habeas
corpus to circumvent the trial and appellate processes
for an inquiry into an alleged non-jurisdictional
defect of a judgment of conviction.

Slayton, 215 Va. at 30, 205 S.E.2d at 682. Thus, when an issue

of an alleged constitutional defect could have been raised and

adjudicated at trial and upon appeal to this Court, a petitioner

lacks standing to raise the claim in a petition for writ of

habeas corpus. Id.

2
 In claim I(A),1 Morrisette alleges the Commonwealth acted

with “reckless disregard” of the prejudicial impact that the 19-

year delay between the time of the offense in 1980 and his

arrest in August 1999 had on his ability to defend against the

charges. In claim III(A), Morrisette alleges the trial court

violated Code § 8.01-360 by qualifying a panel of only 22 jurors

and granting each side only four peremptory strikes. Morrisette

alleges he was entitled to an additional peremptory strike and

that his due process rights were violated. Morrisette further

alleges that this is a “structural error.” In claim V(A),

Morrisette alleges he was entitled to an instruction on the

lesser-included offense of first-degree murder. We hold that

claims I(A), III(A), and V(A) are procedurally defaulted because

these non-jurisdictional issues could have been raised at trial

and on direct appeal but were not. Thus, they are not

cognizable in a petition for writ of habeas corpus. Slayton,

215 Va. at 29, 205 S.E.2d at 682.

In claims II(A) and (B), Morrisette alleges that, “because

there was no indictment for the greater offense of death

eligible capital murder, the trial court lacked jurisdiction to

try petitioner for death eligible capital murder.” Morrisette

argues the failure to include aggravating circumstances in the

1
This claim is mislabeled in Morrisette’s petition as claim
“VI.A.”

3
indictment rendered the trial court without jurisdiction over a

death eligible capital murder trial. Thus, Morrisette asserts

that this challenge to the indictment is not procedurally barred

under Slayton, 215 Va. at 29, 205 S.E.2d at 682. We disagree.

The failure of an indictment to include aggravating

circumstances is not a jurisdictional defect and is waived by

the failure to object to the indictment before trial. See Wolfe

v. Commonwealth, 265 Va. 193, 223-24, 576 S.E.2d 471, 488-89

(2003); Rule 3A:9(b) and (c). Thus, the rule in Slayton does

apply, and this claim is procedurally defaulted because

Morrisette failed to raise this non-jurisdictional issue at

trial and on direct appeal.

B. SUBSTANTIVE ALLEGATION OF JUROR MISCONDUCT

At trial, Morrisette exercised his Fifth Amendment right

against self-incrimination and chose not to testify. The jury

was properly instructed that “the defendant does not have to

testify and exercise of that right cannot be considered by [the

jury].” Morrisette has submitted two juror affidavits, obtained

following his direct appeal, wherein the jurors state that they

speculated during deliberations as to why Morrisette did not

testify. In claim XI(A) (1), Morrisette asserts that his Fifth,

Sixth, Eighth, and Fourteenth Amendment rights were violated

when the jurors failed to follow the trial court’s instructions

4
and improperly considered his failure to testify as evidence of

his guilt.

The Court rejects this claim. The Court will not receive

testimony of jurors regarding their own alleged misconduct in

the jury room for the purpose of impeaching their verdict. See

Kasi v. Commonwealth, 256 Va. 407, 425, 508 S.E.2d 57, 67

(1998), cert. denied, 527 U.S. 1038 (1999) (“Virginia has been

more careful than most states to protect the inviolability and

secrecy of jury deliberations, adhering to the general rule that

the testimony of jurors should not be received to impeach their

verdict, especially on the ground of their own misconduct.”).

The Court has generally “limited findings of prejudicial juror

misconduct to activities of jurors that occur outside the jury

room,” Jenkins v. Commonwealth, 244 Va. 445, 460, 423 S.E.2d

360, 370 (1992), and the Court has held that a trial judge is

not required to examine jurors in response to allegations of

jury misconduct that is confined to the jury room. Id.

C. CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL

In addition to his substantive claims concerning the guilt

phase of his trial, Morrisette asserts claims of ineffective

assistance of counsel. As with any such claim, the two-part

test enunciated in Strickland v. Washington, 466 U.S. 668, 687

(1984), frames our analysis. To prevail, Morrisette must first

prove that his trial counsel’s “performance was deficient.” Id.

5
This prong of the test requires a showing that “counsel’s

representation fell below an objective standard of

reasonableness” and that counsel’s errors were “so serious that

counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Id. at 687-88. Second,

Morrisette must show that the “deficient performance prejudiced

the defense,” meaning that “counsel’s errors were so serious as

to deprive the defendant of a fair trial.” Id. In other words,

a defendant “must show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694.

1. Failure to Argue the Theory of Reckless
Disregard in Speedy Trial Issue on Appeal

In claims I and I(B),2 Morrisette alleges he was denied the

effective assistance of counsel on appeal because counsel failed

to argue that the Commonwealth acted in “reckless disregard” of

the probable prejudicial impact of the 19-year pre-indictment

delay on his ability to present a defense to the charges.3

2
Again, these claims are mislabeled in Morrisette’s
petition as claims “VI” and “VI.B.”
3
Morrisette included this claim of ineffective assistance
of counsel on appeal in his initial petition for writ of habeas
corpus filed on February 6, 2004. That petition, however,
exceeded the 50-page limit as required by Rule 5:7A(g), and the
Court directed him to file an amended petition. In his amended
petition, Morrisette added a claim that his trial counsel was
ineffective for failing to make this argument. Morrisette filed
the amended petition on March 5, 2004, after the applicable

6
 This claim has no merit. The selection of issues to

address on appeal is left to the discretion of appellate

counsel, and counsel need not address every possible issue on

appeal. Jones v. Barnes, 463 U.S. 745, 751-52 (1983).

Furthermore, as Morrisette concedes, he did not make this

specific argument at trial when he challenged the 19-year pre-

indictment delay. Therefore, he would have been procedurally

barred from raising the argument on appeal. See Rule 5:25.

Appellate counsel were not ineffective for failing to present an

argument that would have been procedurally defaulted.

2. Failure to Argue that the Indictment
Did Not Allege Aggravating Factors

In claim II(C), Morrisette asserts counsel should have

argued at trial that the indictment failed to allege the

aggravating factors and that, if counsel had done so, the issue

would have been preserved for appeal and this Court would have

vacated his death sentence.

This claim has no merit. Contrary to Morrisette’s

assertion, there is no constitutional requirement that a capital

murder indictment include allegations concerning aggravating

factors. See Ring v. Arizona, 536 U.S. 584, 597 n.4 (2002)

statute of limitations had expired. Thus, the added claim is
barred pursuant to Code § 8.01-654.1. A claim of ineffective
assistance of counsel at trial does not relate back to
Morrisette’s claim in his initial petition that appellate
counsel was ineffective. See Code § 8.01-6.1.

7
(holding that the Fourteenth Amendment has not been construed to

include the Fifth Amendment right to “presentment or indictment

of a Grand Jury”); Apprendi v. New Jersey, 530 U.S. 466, 477 n.3

(2000); cf. Blakely v. Washington, 542 U.S. 296, ___, 124 S.Ct.

2531, 2537-38 (2004) (holding that a trial judge may not engage

in unilateral fact-finding in order to impose a punishment which

exceeds the jury’s verdict). Furthermore, a defendant charged

with capital murder is not entitled to a bill of particulars

delineating the Commonwealth’s intended aggravating factors when

the indictment specifying the crime gives the defendant notice

of the nature and character of the offense. Roach v.

Commonwealth, 251 Va. 324, 340, 468 S.E.2d 98, 107 (1996). The

indictment in this case gave Morrisette such notice.

3. Failure to Object to Jury Pool Size and Failure
to Demand an Additional Peremptory Strike

The trial court seated a panel of 14 jurors, including two

alternate jurors, from a qualified panel of 22 venirepersons.

Under Code § 19.2-262(B), a panel of 20 qualified members is

required in order to seat a jury of 12 persons. Pursuant to

Code § 8.01-360, when a court desires to seat “two or more

additional jurors . . . there shall be drawn twice as many

venireman as the number of additional jurors desired. The . . .

Commonwealth and accused in a criminal case shall each be

8
allowed one additional peremptory challenge for every two

additional jurors.”

In claim III(B), Morrisette alleges he was denied the

effective assistance of counsel because counsel failed to object

to the trial court’s qualification of a jury panel consisting of

less than 24 venirepersons and further failed to demand an

additional peremptory strike to which Morrisette alleges he was

entitled by law. Morrisette claims that the court’s errors were

structural and that prejudice is therefore presumed.

A “structural error” is a “defect affecting the framework

within which the trial proceeds, rather than simply an error in

the trial process itself.” Arizona v. Fulminante, 499 U.S. 279,

310 (1991); see Emmett v. Warden, 269 Va. 164, 168, 609 S.E.2d

602, 605 (2005). As such, it is the constitutional magnitude of

the error that defies “harmless error review.” Neder v. United

States, 527 U.S. 1, 8 (1999). Examples of errors which affect

the framework of a trial include the denial of a public trial,

the denial of counsel, the denial of an impartial trial judge,

the systematic exclusion of members of the defendant’s race from

the grand jury, the infringement upon a defendant’s right to

represent himself, and the improper instruction to a jury as to

reasonable doubt and the burden of proof. See Johnson v. United

States, 520 U.S. 461, 466-67 (1997) (discussion of “limited

class of cases” in which structural error found); Green v.

9
Young, 264 Va. 604, 611-12, 571 S.E.2d 135, 140 (2002)(holding

an instruction stating the jury shall find the defendant guilty

if the Commonwealth failed to prove each element beyond a

reasonable doubt to be structural error).

In Ross v. Oklahoma, 487 U.S. 81, 88-91 (1988), the United

States Supreme Court held that, although a trial court had erred

in failing to dismiss a potential juror for cause, the error was

harmless because the defendant was able to use a peremptory

challenge to rectify the error. The Court noted that the Sixth

Amendment requires that an impartial jury be seated, but

recognized that “peremptory challenges are not of constitutional

dimension” because they are a means to achieving the

constitutionally required impartial jury. Id. at 88. The Court

held that, although the trial court’s error required Ross to use

one of his peremptory challenges to ensure an impartial jury was

seated, Ross was not deprived “of an impartial jury or of any

interest provided by the state.” Id. at 91. Thus, the Court

holds that the loss of a peremptory challenge is not a

“structural error.”

In asserting claim III(B), Morrisette relies solely on his

argument that prejudice should be presumed. Morrisette has not

attempted to demonstrate that the resulting jury was impartial.

Thus, the Court further holds that Morrisette has failed to

demonstrate a reasonable probability that, but for counsel’s

10
failure to object to the trial court’s qualification of a panel

of 22 jurors and counsel’s failure to demand a fifth peremptory

strike, the outcome of the proceeding would have been different.

See Strickland, 466 U.S. at 687.

4. Failure to Present Evidence

In claim IV, Morrisette alleges he was denied the effective

assistance of counsel because counsel failed to present evidence

that Morrisette and the victim, Dorothy White, had been having

“an affair.” Relying on affidavits by Patricia Walton,

Morrisette’s ex-wife; and Randy Rodgers, Morrisette’s former

employer; Morrisette alleges that counsel should have presented

testimony from Walton and Rodgers to show that Morrisette and

White had consensual sex at the time of the murder. Despite his

defense that he did not commit the murder, Morrisette asserts

that, if counsel had presented the testimony of both Walton and

Rodgers, the jury would have either acquitted him or convicted

him of first-degree murder.

In the affidavits presented by Morrisette, Walton states

that Morrisette’s mother was afraid that Bill Anthony, who had a

relationship with White, was going to hurt Morrisette because

Morrisette was also involved in a sexual relationship with

White. Walton also states that she saw Morrisette and White

together. Rodgers asserts that he could have corroborated the

fact that Morrisette had an affair with White because Rodgers

11
had seen Morrisette and White together and because Morrisette

told Rodgers that he had slept with White. Rodgers further

stated that Morrisette was afraid of Bill Anthony.

Morrisette argues that, if the jury believed he and White

had engaged in consensual sex, it would not have convicted

Morrisette of capital murder, even if the jury believed he

killed her. Morrisette further argues that, if the jury had

heard evidence of Bill Anthony’s motive to commit the murder,

Morrisette would have been acquitted.

Not only do these affidavits contain inadmissible, hearsay

testimony, they present evidence that is inconsistent with

Morrisette’s defense at trial. A few days after the crime was

committed, Morrisette told the police he only knew White because

he once went to her house with Bill Anthony. Morrisette also

gave the police a false alibi for the night of the murder.

However, in his 1999 interview with the police, Morrisette

denied knowing White and denied having sexual intercourse with

her. Thus, it would have been unreasonable for counsel to

attempt to assert a defense that Morrisette and White had

consensual sexual intercourse because Morrisette asserted an

alibi defense and previously stated that he did not know White.

A defense based on the affidavits would emphasize that

Morrisette lied twice to the police in order to conceal his

guilt. Therefore, Morrisette has failed to demonstrate that

12
counsel’s performance was deficient or that there is a

reasonable probability that, but for counsel’s alleged error,

the outcome of the proceeding would have been different. See

Strickland, 466 U.S. at 687.

5. Failure to Request a Jury Instruction
on First-Degree Murder

In claim V(B), Morrisette alleges he was denied the

effective assistance of counsel because counsel failed to

request an instruction on the lesser-included offense of first-

degree murder. Morrisette alleges he was prejudiced by

counsel’s failure because the jury could have found that the

evidence was either insufficient to prove Morrisette’s sexual

intercourse with White was nonconsensual or insufficient to

prove that the act of sexual intercourse was contemporaneous

with the killing of White. Morrisette bases this argument on

the evidence that there was no injury to the victim’s external

genitalia coupled with the presence of his semen.

The defense’s theory at trial was that Morrisette did not

murder White. Counsel argued during trial that Morrisette “was

not involved in the murder” and that “[n]othing in any evidence

shows that William Morrisette did the murder.” Counsel could

not have reasonably argued that Morrisette committed first-

degree murder without destroying the stronger argument that

Morrisette did not commit the murder. Therefore, Morrisette has

13
failed to demonstrate that counsel’s performance was deficient

or that there is a reasonable probability that, but for

counsel’s alleged error, the outcome of the proceeding would

have been different. See Strickland, 466 U.S. at 687.

6. Cumulative Nature of Counsel’s Errors

In claim VIII, Morrisette asserts the cumulative effect of

trial counsel’s deficient performance prejudiced him. This

claim has no merit. “Having rejected each of petitioner’s

individual claims, there is no support for the proposition that

such actions when considered collectively have deprived

petitioner of his constitutional right to effective assistance

of counsel.” Lenz v. Warden, 267 Va. 318, 340, 593 S.E.2d 292,

305 (2004).

7. Failure to Conduct Post-Trial Juror Interviews

In claim XI(A)(2), Morrisette contends that counsel should

have interviewed the jurors immediately following the trial and

that, if counsel had done so, the interviews would have

disclosed the jurors’ failure to follow the trial court’s

instructions regarding Morrisette’s decision not to testify.

Morrisette asserts he was prejudiced by this failure because it

prevented counsel from raising the issue of the jury’s

misconduct in a post-trial motion and on appeal.

There is no requirement that counsel must interview every

juror at the end of a case. Lenz, 267 Va. at 326, 593 S.E.2d at

14
296-97. Thus, Morrisette has failed to demonstrate that

counsel’s performance was deficient. See Strickland, 466 U.S.

at 687.

II. PENALTY PHASE ISSUES

In claim X, Morrisette maintains that his trial counsel

were ineffective during the penalty phase of his trial for

failing to object to a verdict form that, according to

Morrisette, was defective and did not conform to the jury

instructions and the law. The single verdict form provided to

the jury during the penalty phase of Morrisette’s trial

contained the following sentencing options:4

_____ We, the Jury, in the case of Commonwealth v.
William Wilton Morrisette, III, having found the
defendant guilty of capital murder, and having found
after consideration of his history and background that
there is a probability that he would commit criminal
acts of violence that would constitute a continuing
serious threat to society,

and

having unanimously found that his conduct in
committing the offense is outrageously or wantonly
vile, horrible or inhuman in that it involved torture;
depravity of mind; or aggravated battery to the victim
beyond the minimum necessary to accomplish the act of

4
In 2003, after this Court’s decision in Powell v.
Commonwealth, 261 Va. 512, 552 S.E.2d 344 (2001), the General
Assembly amended Code § 19.2-264.4(D)(2) to add the option of a
life sentence and a monetary fine. See Acts 2003, chs. 1031 and
1040. Even though the amendment occurred after Morrisette’s
trial, the verdict form used in his sentencing proceeding
included this option, which was consistent with the provisions
of Code § 18.2-10 (monetary limits of fine for conviction of
felony).

15
murder and having considered the evidence in
mitigation of the offense, unanimously fix his
punishment at death.

______________________
FOREPERSON

OR

_____ We, the Jury, in the case of Commonwealth v.
William Wilton Morrisette, III, having found the
defendant guilty of capital murder and having
unanimously found after consideration of his history
and background that there is a probability that he
would commit criminal acts of violence that would
constitute a continuing serious threat to society, and
having considered the evidence in mitigation of the
offense, unanimously fix his punishment at death.

______________________
FOREPERSON

OR

_____ We, the Jury, in the case of Commonwealth v.
William Wilton Morrisette, III, having unanimously
found that his conduct in committing the offense is
outrageously or wantonly vile, horrible or inhuman in
that it involved torture; depravity of mind or
aggravated battery to the victim beyond the minimum
necessary to accomplish the act of murder and having
considered the evidence in mitigation of the offense,
unanimously fix his punishment at death.

_______________________
FOREPERSON

OR
_____ We, the Jury, in the case of Commonwealth v.
William Wilton Morrisette, III, having found the
defendant guilty of capital murder and having
considered all of the evidence in aggravation and
mitigation of such offense, fix his punishment at
imprisonment for life.

_______________________
FOREPERSON

16
 OR

_____ We, the Jury, in the case of Commonwealth v.
William Wilton Morrisette, III, having found the
defendant guilty of capital murder and having
considered all of the evidence in aggravation and
mitigation of such offense, fix his punishment at
imprisonment for life and a fine of $__________ (fine
must not be more than $100,000.00).

________________________
FOREPERSON

Morrisette contends that the verdict form was defective in

two respects. Relying on this Court’s decision in Atkins v.

Commonwealth, 257 Va. 160, 510 S.E.2d 445 (1999), Morrisette

first contends that the verdict form did not comport with the

trial court’s jury instructions because it failed to include an

option requiring the jury to fix his sentence at life

imprisonment if it found that the Commonwealth had proven

neither aggravating factor beyond a reasonable doubt. Second,

Morrisette argues that, based on this Court’s decision in Powell

v. Commonwealth, 261 Va. 512, 552 S.E.2d 344 (2001), the verdict

form failed to give the jury the option of imposing a life

sentence even if the jury found that the Commonwealth had proven

one or both aggravating factors beyond a reasonable doubt.

Morrisette’s first argument is without merit. As the

Warden asserts, our decision in Lenz resolves Morrisette’s

contention that, based on the Atkins decision, the verdict form

was defective because it failed to include an option requiring

17
the jury to impose a life sentence if the Commonwealth proved

neither aggravating factor beyond a reasonable doubt. In Lenz,

we stated that, if the trial court in Atkins had used the

statutory verdict form, see Code § 19.2-264.4(D)(2), the

“missing sentencing option would have been submitted to the

jury.” 267 Va. at 324, 593 S.E.2d at 295. As in Lenz, the

verdict form given to the jury in Morrisette’s sentencing

proceeding included the language set out in Code § 19.2-

264.4(D)(2), which is the sentencing option that was missing in

Atkins. Atkins, 257 Va. at 179, 510 S.E.2d at 457. Thus, the

verdict form in this case did not fail to include the option

requiring the imposition of a life sentence with or without a

fine if the Commonwealth proved neither aggravating factor

beyond a reasonable doubt.

As to Morrisette’s second argument, the Warden asserts that

the verdict form used in Morrisette’s sentencing proceeding is

the one mandated by the provisions of Code § 19.2-264.4(D), that

it is an accurate and complete statement of the law, and that

trial counsel thus could not have been ineffective for failing

to object to its use during the sentencing phase of Morrisette’s

trial. Continuing, the Warden contends that this Court did not

invalidate the statutory verdict form in Powell; that this

Court, before Powell, as well as the Supreme Court of the United

States, has upheld the use of the statutory verdict form and the

18
parallel jury instructions; and that the General Assembly, in

post-Powell legislation, has rejected any changes in the

statutory verdict form suggested by our decision in Powell.

The defendant in Powell argued that, during the penalty

phase, the trial court erred in giving the jury verdict forms

that did not “expressly state[] the jury’s option of imposing a

life sentence or a life sentence and a fine where the jury found

one or both of the aggravating factors to be present.”5 261 Va.

5
The following four separate verdict forms were used in
Powell’s sentencing proceeding:

[Powell Verdict Form 1]

We, the jury, on the issue joined, having found the
defendant guilty of Capital Murder in the Commission
of Rape and having unanimously found after
consideration of his history and background that there
is a probability that he would commit criminal acts of
violence that would constitute a continuing serious
threat to society,
and
having unanimously found that his conduct in
committing the offense is outrageously or wantonly
vile, horrible or inhuman in that it involved torture,
depravity of mind, or aggravated battery to the victim
beyond the minimum necessary to accomplish the act of
murder and having considered the evidence in
mitigation of the offense, unanimously fix his
punishment at death.
____________________
FOREMAN

[Powell Verdict Form 2]

We, the jury, on the issue joined, having found
the defendant guilty of Capital Murder in the
Commission of Rape and having unanimously found after
consideration of his history and background that there

19
at 542, 552 S.E.2d at 361. In response, the Commonwealth

asserted that the verdict forms comported with the provisions of

Code § 19.2-264.4(D) and that, based on our decision in Roach,

the trial court did not err by refusing to substitute an

alternative form for the statutory form. Powell, 261 Va. at

542-43, 552 S.E.2d at 362.

Disagreeing with the Commonwealth, we framed the issue as

is a probability that he would commit criminal acts of
violence that would constitute a continuing serious
threat to society, and having considered the evidence
in mitigation of the offense, unanimously fix his
punishment at death.
____________________
FOREMAN

[Powell Verdict Form 3]

We, the jury, on the issue joined, having found
the defendant guilty of Capital Murder in the
Commission of Rape and having unanimously found that
his conduct in committing the offense is outrageously
or wantonly vile, horrible or inhuman in that it
involved torture, depravity of mind, or aggravated
battery to the victim beyond the minimum necessary to
accomplish the act of murder and having considered the
evidence in mitigation of the offense, unanimously fix
his punishment at death.
____________________
FOREMAN

[Powell Verdict Form 4]

We, the jury, on the issue joined, having found
the defendant guilty of Capital Murder in the
Commission of Rape and having considered all of the
evidence in aggravation and mitigation of such
offense, fix his punishment at imprisonment for life.
____________________
FOREMAN

20
 whether the jury [was] likely to be confused where it [was]
instructed that it may impose a sentence other than death
if it [found] one or both of the aggravating factors have
been proven beyond a reasonable doubt, but receive[d]
verdict forms that [did] not expressly state that the jury
[was] allowed to fix a sentence of life imprisonment even
though one or both aggravating factors [were] present.

Id. at 545, 552 S.E.2d at 363. We concluded that a defendant is

entitled to a verdict form “that accurately and expressly

correspond[s] to the trial court’s sentencing instruction” and

that in the penalty phase of a capital murder trial, the trial

court must give the jury a verdict form that expressly includes

the option for imposing a life sentence or a life sentence and a

fine of not more than $100,000 when the jury finds that the

Commonwealth has proven one or both aggravating factors beyond a

reasonable doubt. Id.

Nevertheless, the Warden contends that the holding in

Powell was dictum and contrary to our prior decisions in Mueller

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

The defendants in both of those cases challenged the verdict

form used in the respective penalty phase proceedings of their

capital murder trials. We found no error in both instances.

Specifically, the defendant in Mueller claimed that the

verdict form “did not properly inform [the jury] of the

sentencing options” and “influenced the jury to impose the death

sentence rather than life imprisonment.” 244 Va. at 412, 422

S.E.2d at 396. On brief, the defendant argued that “[i]t would

21
be ludicrous to say that we instructed the jury that it could

find aggravating factors and still give a life sentence when the

form the jury fills out does not make it appear that this option

exists.”

The verdict form used in Mueller’s sentencing proceeding

gave the jury four sentencing options: (1) a sentence of death

based on a finding of both aggravating factors; (2) a sentence

of death based on a finding of future dangerousness; (3) a

sentence of death based on a finding of vileness; and (4) a life

sentence based on all of the evidence in aggravation and

mitigation of the offense. Id. In addition to the verdict

form, the trial court instructed the jury that it could not

impose the death penalty unless the Commonwealth proved beyond a

reasonable doubt at least one of the aggravating factors and

that, even if the Commonwealth did so, the jury was still free

to fix the defendant’s sentence at life imprisonment. Id. at

412, 422 S.E.2d at 396-97. We concluded the verdict form, in

conjunction with the jury instructions, “fully apprised the jury

of its sentencing options,” did not favor any particular option,

and was complete. Id. at 413, 422 S.E.2d at 396-97. While we

did not specifically address the provisions of Code § 19.2-

22
264.4(D), the verdict form used in Mueller followed the

statutory form in effect at that time.6

6
The following verdict form was provided to the jury in
Mueller:

ALTERNATIVE JURY VERDICTS

Cross out any paragraph, word or phrase which
you do not find beyond a reasonable doubt

We, the jury, on the issue joined, having found
the defendant guilty of capital murder during the
commission of rape and abduction with the intent to
defile, and having unanimously found after
consideration of his history and background that there
is a probability that he would commit criminal acts of
violence that would constitute a continuing serious
threat to society,

and

having unanimously found that his conduct in
committing the offense is outrageously or wantonly
vile, horrible or inhuman in that it involved torture,
or depravity of mind, or aggravated battery to the
victim beyond the minimum necessary to accomplish the
act of murder, and having considered the evidence in
mitigation of the offense, unanimously fix his
punishment at death.

______________________
FOREMAN
OR

We, the jury, on the issue joined, having found
the defendant guilty of capital murder during the
commission of rape and abduction with the intent to
defile, and having unanimously found after
consideration of his history and background that there
is a probability that he would commit criminal acts of
violence that would constitute a continuing serious
threat to society, and having considered the evidence

23
 Similarly, in Roach, the defendant argued on brief that the

statutory verdict form that the trial court gave the jury was

“constitutionally defective” because “the jury never actually

received a verdict form option to sentence Roach to life in

prison if, despite proof of future dangerousness after weighing

this mitigation evidence, fairness and mercy justified this

in mitigation of the offense, unanimously fix his
punishment at death.

_____________________
FOREMAN
OR

We, the jury, on the issue joined, having found
the defendant guilty of capital murder during the
commission of rape and abduction with the intent to
defile, and having unanimously found that his conduct
in committing the offense is outrageously or wantonly
vile, horrible or inhuman in that it involved torture,
or depravity of mind, or aggravated battery to the
victim beyond the minimum necessary to accomplish the
act of murder, and having considered the evidence in
mitigation of the offense, unanimously fix his
punishment at death.

_______________________
FOREMAN

OR

We, the jury, on the issue joined, having found
the defendant guilty of capital murder during the
commission of rape and abduction with the intent to
defile, and having considered all of the evidence in
aggravation and mitigation of such offense, fix his
punishment at imprisonment for life.

_______________________
FOREMAN

24
result.”7 Roach further asserted that the trial court erred by

refusing to give the jury his proposed verdict form that

included the specific option allowing the jury to impose a life

sentence even if it found that the Commonwealth had proven

“future dangerousness” beyond a reasonable doubt. We rejected

Roach’s arguments. Based on our decisions in Stockton v.

Commonwealth, 241 Va. 192, 215, 402 S.E.2d 196, 209 (1991), and

LeVasseur v. Commonwealth, 225 Va. 564, 594-95, 304 S.E.2d 644,

661 (1983), we concluded that we had already decided the issue

presented.8 Roach, 251 Va. at 336, 468 S.E.2d at 105. We

further held that the trial court did not err by refusing “to

substitute Roach’s proposed verdict form for the statutory

sentencing verdict form.”9 Id.

7
In the penalty phase of Roach’s trial, the trial court
submitted only the “future dangerousness” predicate to the jury.
Roach, 251 Va. at 329, 468 S.E.2d at 101.
8
In Stockton, we rejected the argument that the “verdict
form prescribed by Code § 19.2-264.4(D) and used by the trial
court” discouraged the jury from giving proper consideration to
mitigating evidence. 241 Va. at 215, 402 S.E.2d at 209. In
LeVasseur, the instructions given to the jury during the penalty
phase were at issue, not the verdict form. We held that the
defendant was not entitled to jury instructions that singled out
certain mitigating evidence. 225 Va. at 595, 304 S.E.2d at 661.
9
The verdict form given to the jury in Roach provided the
jury with the following sentencing options:

We, the jury, on the issue joined, having found
the Defendant, guilty of the willful, deliberate, and
premeditated killing of a person in the commission of
robbery while armed with a deadly weapon, and having
unanimously found after consideration of his history

25
 While the verdict forms used in Powell, Mueller, and Roach

followed the statutory form set out in Code § 19.2-264.4(D), the

challenges to the verdict forms in Mueller and Roach did not

include an express argument premised on the notion that the

sentencing options set forth in a verdict form must explicitly

correspond to the trial court’s sentencing instructions. That

rationale, which we utilized in Atkins and Powell, “flows from

and background that there is a probability that he
would commit criminal acts of violence that would
constitute a continuing serious threat to society, and
having considered the evidence in mitigation of the
offense, unanimously fix his punishment at death.

________________________
Foreperson
or
We, the jury, on the issue joined, having found
the Defendant, guilty of the willful, deliberate, and
premeditated killing of a person in the commission of
robbery while armed with a deadly weapon, and having
considered all of the evidence in aggravation and
mitigation of such offense, fix his punishment at
imprisonment for life.

_________________________
Foreperson
or
We, the jury, on the issue joined, having found
the Defendant, guilty of the willful, deliberate, and
premeditated killing of a person in the commission of
robbery while armed with a deadly weapon, and having
considered all of the evidence in aggravation and
mitigation of such offense, fix his punishment at
imprisonment for life and a fine of
$___________________(fine must not be more than
$100,000.00).

________________________
Foreperson

26
the principle that ‘it is materially vital to the defendant in a

criminal case that the jury have a proper verdict form.’ ”

Powell, 261 Va. at 545, 552 S.E.2d at 363 (quoting Atkins, 257

Va. at 178, 510 S.E.2d at 456). Thus, we were addressing a new

issue in Powell. 261 Va. at 542, 552 S.E.2d at 361. We take

this opportunity to reaffirm our holding in Powell and, to the

extent, if any, that our holdings in Mueller and Roach are

inconsistent with Powell, we overrule those decisions.

Turning to the merits of Morrisette’s claim, we find that

the verdict form used in Morrisette’s sentencing proceeding

omitted the same sentencing option as the verdict form at issue

in Powell. Both failed to include express language telling the

jury that it may impose a life sentence with or without a fine

even if it concluded that the Commonwealth had proven either or

both aggravating factors beyond a reasonable doubt. That

conclusion, however, does not end our inquiry.

Because Morrisette is claiming counsel was ineffective for

failing to object to the use of the defective verdict form we

must determine whether counsel’s failure was unreasonable and,

if so, whether counsel’s error undermines the Court’s confidence

in the outcome of the proceeding. As to the “performance” prong

of the Strickland test, we hold that the representation provided

to Morrisette by his trial counsel “fell below an objective

standard of reasonableness.” Strickland, 466 U.S. at 688. This

27
Court issued its decision in Powell approximately two months

before the commencement of Morrisette’s trial. We succinctly

stated our holding in Powell: “in a capital murder . . . trial,

the trial court must give the jury verdict forms providing

expressly for the imposition of a sentence of imprisonment for

life and a fine of not more than $100,000 when the jury finds

that one or both of the aggravating factors have been proven

beyond a reasonable doubt.” 261 Va. at 545, 552 S.E.2d at 363.

In light of that holding, any reasonably competent attorney

would have known that it was imperative that he or she object to

a verdict form that did not expressly include that sentencing

option. See Green, 264 Va. at 609, 571 S.E.2d at 138

(reasonably competent attorney would have objected to a jury

instruction that was clearly erroneous and violated the

procedural safeguard requiring the prosecution to prove every

element of the charged offense beyond a reasonable doubt).

We also find that trial counsel’s deficient performance

prejudiced Morrisette’s defense.10 In both Atkins and Powell, we

recognized that a jury is likely to be confused when there is a

conflict between the sentencing instructions and the verdict

form. The conflict in this case existed because the jury was

10
We reject Morrisette’s argument that the omission in the
verdict form constitutes a “structural error” not subject to the
prejudice analysis. See Emmett, 269 Va. at 171, 609 S.E.2d at
607.

28
instructed that it could sentence Morrisette to life

imprisonment with or without a fine even if it found that the

Commonwealth had proven one or both aggravating factors beyond a

reasonable doubt. However, the verdict form did not contain a

separate paragraph expressly stating that sentencing option.

Thus, we conclude that “there is a reasonable probability

that, but for counsel’s . . . error[ in failing to object to the

incomplete verdict form], the result of the proceeding would

have been different,” i.e., the jury would not have imposed the

death penalty.11 Strickland, 466 U.S. at 694. The implicit jury

confusion caused by the conflict between the instructions and

the verdict form was “sufficient to undermine confidence in the

outcome.” Id.

11
In contrast to the Court’s holding today, we held in
Emmett that the petitioner had failed to demonstrate that there
was a “ ‘reasonable probability’ ” that, but for trial counsel’s
failure to object to an incomplete verdict form, “ ‘the result
of the proceeding would have been different.’ ” 269 Va. at 171,
609 S.E.2d at 607 (quoting Strickland, 466 U.S. at 694). The
omission in the verdict form there was different than the one at
issue in Morrisette’s petition for writ of habeas corpus. The
verdict form used in the penalty phase of Emmett’s capital
murder trial omitted only the provisions of Code § 19.2-
264.4(D)(2). However, “[b]ecause the jury found that the
Commonwealth had proven both aggravating factors beyond a
reasonable doubt, it had no reason or occasion to consider the
option of a life sentence with or without a fine mandated when
the Commonwealth proves neither aggravating factor.” Emmett,
296 Va. at 171, 609 S.E.2d at 607. Thus, we concluded that
Emmett had suffered no prejudice.

29
 For these reasons, a limited grant of the writ of habeas

corpus shall issue to remand the matter to the Circuit Court for

the City of Hampton for a new sentencing hearing.12

JUSTICE KINSER, with whom JUSTICE LEMONS and JUSTICE AGEE join,
concurring in part and dissenting in part:

I respectfully disagree with the majority’s decision to

issue a limited grant of the writ of habeas corpus to remand the

matter to the circuit court for a new sentencing hearing. In my

view, the petitioner, William Wilton Morrisette, III, has not

satisfied the “prejudice” prong of the two-part test enunciated

in Strickland v. Washington, 466 U.S. 668, 687 (1984). In other

words, Morrisette has not shown that his trial counsel’s alleged

error in failing to object to the verdict form at issue was “so

serious as to deprive [him] of a fair trial.” Id.

In deciding a claim of ineffective assistance of counsel,

it is often easier to dispose of the claim by proceeding

directly to the question whether the petitioner suffered any

prejudice as a result of counsel’s alleged deficiencies. Id. at

12
Because the Court concludes that Morrisette is entitled
to a new sentencing hearing, it is not necessary to consider the
remaining penalty phase claims. In addition, Morrisette has
withdrawn claims XIII (protocol for lethal injection violates
the United States and Virginia constitutional prohibitions
against cruel and unusual punishment) and XIV (execution by
electrocution violates the United States and Virginia

30
697. If a petitioner makes “an insufficient showing on one

[component of the inquiry],” it is not necessary to address both

prongs of the Strickland test. Id. I find that to be true in

this case. Thus, I follow that course and address only the

prejudice prong.

In order to establish that counsel’s alleged deficiency

prejudiced his defense, Morrisette has to show that “there is a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”

Id. at 694. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. “[T]he

ultimate focus of inquiry must be on the fundamental fairness of

the proceeding whose result is being challenged.” Id. at 696.

Counsel’s alleged error in this case must have been so serious

“as to deprive [Morrisette] of a fair trial, a trial whose

result is reliable.” Id. at 687.

[T]he right to the effective assistance of counsel is
recognized not for its own sake, but because of the
effect it has on the ability of the accused to receive
a fair trial. Absent some effect of challenged
conduct on the reliability of the trial process, the
Sixth Amendment guarantee is generally not implicated.

United States v. Cronic, 466 U.S. 648, 658 (1984); accord

Lockhart v. Fretwell, 506 U.S. 364, 368 (1993).

constitutional prohibitions against cruel and unusual
punishment).

31
 Morrisette challenges the verdict form used in the penalty

phase of his trial on the basis that it did not include an

express option allowing the imposition of a life sentence with

or without a fine even if the jury found that the Commonwealth

had proven one or both aggravating factors beyond a reasonable

doubt. This challenge focuses on an alleged omission in the

verdict form. Morrisette does not claim that the verdict form

contained an erroneous statement of law as to the jury’s

sentencing options. See Henderson v. Kibbe, 431 U.S. 145, 155

(1977) (“[a]n omission, or an incomplete instruction, is less

likely to be prejudicial than a misstatement of the law”).

In assessing whether Morrisette was prejudiced by this

omission, the verdict form should not be looked at in isolation

but rather as part of the overall instructions given to the jury

during the penalty proceeding. See Boyde v. California, 494

U.S. 370, 378 (1990) (a jury instruction should not be viewed in

isolation but should be examined in the context of the entire

charge to the jury). Furthermore, in Atkins v. Commonwealth,

257 Va. 160, 177 n.8, 510 S.E.2d 445, 456 n.8 (1999), we stated

that, in the context presented there, “the term ‘instruction’ is

sufficiently broad to cover any statement of the law given by

the trial court to the jury, which would necessarily include the

written verdict form required by Code § 19.2-264.4(D).”

32
 Looking not just at the verdict form but also at the jury

instructions, I find crucial in applying the Strickland

prejudicial analysis to Morrisette’s claim the fact that the

trial court correctly instructed the jury about all of its

sentencing options and Morrisette does not claim otherwise.

That instruction stated:

You have convicted the defendant of an offense
which may be punishable by death. You must decide
whether the defendant shall be sentenced to death or
to imprisonment for life and a fine of a specific
amount, but not more than $100,000.00. Before the
penalty can be fixed at death, the Commonwealth must
prove beyond a reasonable doubt at least one of the
following aggravating circumstances:
(1) That, after consideration of his
history and background, there is
a probability that he would commit
criminal acts of violence that would
constitute a continuing serious
threat to society; or
(2) That his conduct in committing the
offense was outrageously or wantonly
vile, horrible or inhuman, in that it
involved torture, depravity of mind or
aggravated battery to the victim beyond
the minimum necessary to accomplish the
act of murder.

If you find from the evidence that the
Commonwealth has proved beyond a reasonable doubt
either of these circumstances, then you may fix the
punishment of the defendant at death. But if you
nevertheless believe from all the evidence, including
evidence in mitigation, that the death penalty is not
justified, then you shall fix the punishment of the
defendant at:
(1) Imprisonment for life; or
(2) Imprisonment for life and a fine of a
specific amount, but not more than
$100,000.00.

33
 If the Commonwealth has failed to prove beyond a
reasonable doubt at least one of these circumstances,
then you shall fix the punishment at:
(1) Imprisonment for life; or
(2) Imprisonment for life and a fine of a
specific amount, but not more than
$100,000.00.
Any decision you make regarding punishment must
be unanimous.

Armed with this correct statement of law along with the

penalty phase verdict form, a reasonable jury could not have

misunderstood its sentencing options. See Francis v. Franklin,

471 U.S. 307, 315 (1985) (“‘whether a defendant has been

accorded his constitutional rights depends upon the way in which

a reasonable juror could have interpreted the instruction’”)

(quoting Sandstrom v. Montana, 442 U.S. 510, 514 (1979)). In

other words, there is not a reasonable probability that the jury

would have voted to impose a life sentence or a life sentence

with a fine after finding both aggravating factors but failed to

do so because the verdict form did not expressly set out an

option with that particular language. The jury was clearly

instructed that, if it found the Commonwealth had proven either

of the aggravating factors beyond a reasonable doubt, it “may”

fix punishment at death; but that, if it nevertheless believed

from all the evidence, including evidence in mitigation, the

death penalty was not justified, it “shall fix” punishment at

life imprisonment or life imprisonment and a fine. This

language juxtaposed with the verdict form that expressly, in a

34
separate paragraph, provided the option of fixing punishment at

life imprisonment or life imprisonment and a fine “after having

considered all of the evidence in aggravation and mitigation”

was not confusing. Nor was there a conflict between the verdict

form and the trial court’s instructions.

In short, the jury was instructed that, even if it found

one or both aggravating factors, it could sentence Morrisette to

life imprisonment or life imprisonment and a fine if it

believed, after considering all the evidence including

mitigation evidence, that the death penalty was not justified.

The final two paragraphs of the verdict form provided the jury

with the means to effect such a finding, but the jury instead

chose to fix Morrisette’s sentence at death.

Thus, I conclude that Morrisette has not carried his burden

of demonstrating that counsel’s alleged error was “so serious as

to deprive [him] of a fair trial.” Strickland, 466 U.S. at 687;

cf. Henderson, 431 U.S. at 154 (burden of showing that an

erroneous instruction was so prejudicial as to support

collateral attack on defendant’s conviction is greater than

burden to show plain error on direct appeal); Jenkins v.

Commonwealth, 254 Va. 333, 336 n.4, 492 S.E.2d 131, 132 n.4

(1997) (noting different standard for collateral review of

constitutional error). The result of Morrisette’s sentencing

proceeding was not unreliable. See Strickland, 466 U.S. at 696.

35
 For these reasons, I respectfully concur, in part, and

dissent, in part, and would dismiss Morrisette’s petition for

writ of habeas corpus.

This order shall be published in the Virginia Reports.

The Clerk of this Court shall certify copies of this order

to counsel for the petitioner, to the respondent, to the Clerk

of the Circuit Court of the City of Hampton, and to the Attorney

General of Virginia, which certification shall have the same

force and effect as if a writ of habeas corpus were formally

issued and served.

A Copy,

Teste:

Patricia L. Harrington, Clerk

36