1

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 
2

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.
3

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.”
4

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 
5

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. 
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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 
7

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 preindictment 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. 
8

(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 
9

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. 
10

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 
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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 
12

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 
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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 firstdegree 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 firstdegree murder without destroying the stronger argument that 

Morrisette did not commit the murder. Therefore, Morrisette has 
14

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 
15

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). 
16

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 
17

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 
18

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 
19

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 
20

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 
21

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 
22

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-
23

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 
24

 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 
25

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 
26

 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 
27

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 
28

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. 
29

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. 
30

 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 
31

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). 
32

 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).” 
33

 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. 
34

 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 
35

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. 
36

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