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 

dangerousness predicate. 14 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 

25
death penalty. Therefore, we will affirm the judgments of 

the circuit court. 

Record No. 990363--Affirmed. 

Record No. 990364--Affirmed. 

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