Present: All the Justices 

DEREK ROCCO BARNABEI 

OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR. 

v. Record Nos. 952168 and 952169 

 September 13, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

William F. Rutherford, Judge 

 In these appeals, we review a capital murder conviction and 

sentence of death imposed upon Derek Rocco Barnabei (Record No. 

952168), along with his conviction of rape (Record No. 952169). 

 I 

 PROCEEDINGS 

 Barnabei was charged in an indictment with capital murder, 

i.e., the willful, deliberate, and premeditated killing of Sarah 

J. Wisnosky in the commission of rape. Code § 18.2-31(5). 

Barnabei, in a separate indictment, also was charged with the 

rape of Wisnosky. Code § 18.2-61(A). 

 In a bifurcated jury trial conducted pursuant to Code 

§§ 19.2-264.3 and -264.4, Barnabei was found guilty of capital 

murder and of rape. The jury fixed Barnabei's punishment for the 

rape conviction at 13 years' imprisonment, and, upon further 

evidence, fixed Barnabei's punishment for the capital murder 

conviction at death, based upon both the "vileness" and "future 

dangerousness" predicates. Code § 19.2-264.2. After considering 

a report prepared by a probation officer pursuant to Code § 19.2-

264.5, the trial court sentenced Barnabei in accord with the jury 

verdicts. 

 Pursuant to Code § 17-110.1(F), we have consolidated the 

automatic review of Barnabei's death sentence with the appeal of 
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right of his capital murder conviction.1

 By order entered 

December 7, 1995, Barnabei's appeal of his rape conviction was 

certified from the Court of Appeals, Code § 17-116.06, and we 

have consolidated that appeal with the capital murder appeal and 

given them priority on our docket, Code § 17-110.2. 

 II 

 THE CRIMES 

 On September 22, 1993, shortly after 6:00 p.m., Wisnosky's 

nude body was discovered floating in the Lafayette River, in the 

City of Norfolk. Nearby, the police found a leather shoe, later 

identified as Wisnosky's, on one of the steps leading down to the 

river. The police also found a washcloth, which appeared to be 

bloodstained. 

 An autopsy, performed by a state deputy medical examiner, 

revealed that Wisnosky had sustained at least 10 severe blows to 

the back and right side of her head, fracturing her skull. The 

blows had been inflicted by a heavy, blunt object, such as a ball 

peen hammer. 

 The autopsy further revealed that Wisnosky had sustained 

bruising to her abdomen, which the examiner testified could have 

been caused by a blow to Wisnosky's abdomen or by the assailant's 

 1Barnabei has assigned 53 errors. However, he did not 

discuss on brief, and thus has waived, assignments of error 

numbered 1, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 21, 

22, 27, 29, 30, 31, 36, 37, 42, 43, 44, 45, 46, and 49. Rule 

5:27; Williams v. Commonwealth, 248 Va. 528, 537, 450 S.E.2d 365, 

372 (1994), cert. denied, ___ U.S. ___, 115 S.Ct. 2616 (1995). 

In his appeal, we do consider the 14 questions discussed in his 

brief. 
- 3 - 

 

kneeling on her "to hold [her] in place." Wisnosky also had 

sustained bruises to her neck and larynx, and petechiae were 

found on her face which, according to the medical examiner, were 

"a manifestation of mechanical asphyxia."2

 These findings 

suggested to the examiner that Wisnosky had been "manually 

strangled." 

 Additionally, the medical examiner found bruising on the 

introitus of Wisnosky's vagina and a half-inch tear of her anal 

opening. The examiner opined that the bruising had been 

sustained prior to Wisnosky's death and that the anal tear had 

been inflicted "very close to the time of her death." The 

examiner also opined that such a tear is usually caused by 

"forcible stretching." 

 The examiner further opined that Wisnosky's death was not 

caused by drowning although a "little fluid" was found in her 

lungs. He, however, could not rule out the possibility that 

Wisnosky may not have been dead when her body was put into the 

water. The "primary cause" of Wisnosky's death, according to the 

medical examiner, was the head injuries. The mechanical asphyxia 

was a contributing factor. 

 Wisnosky was a 17-year-old Caucasian and a student in her 

first year at Old Dominion University (ODU). Nicki Vanbelkum, 

Wisnosky's dormitory roommate, last saw Wisnosky alive on the 

 2The medical examiner defined "petechiae" as small pinheadsized hemorrhages of the capillaries. 
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afternoon of September 21, 1993. Vanbelkum and Wisnosky had 

planned to meet later that day, but Wisnosky did not appear. 

 Barnabei, also a Caucasian, first arrived in the NorfolkVirginia Beach area in August 1993. He identified himself to 

others as "Serafino" or "Serf" Barnabei and claimed to have been 

a member of the Tau Kappa Epsilon (TKE) fraternity at Rutgers 

University.3

 Soon thereafter, Barnabei began to associate with 

members of TKE at ODU. He rented a room in a house that was 

occupied by four other young men, who were either past or present 

students at ODU. 

 Barnabei became acquainted with Wisnosky, and the two 

attended a number of functions at the rooming house. On several 

occasions, Wisnosky spent the night with Barnabei. 

 On one of those occasions, Wisnosky and Vanbelkum went to 

Barnabei's rooming house for a "toga party," conducted by the TKE 

fraternity. Wisnosky became intoxicated and refused to leave the 

party with Vanbelkum. Barnabei appeared to shun Wisnosky 

throughout the party, and he told Thomas Walton, a TKE member, to 

"keep [Wisnosky] away from him because he was trying to hook up 

with someone else." Walton and Daniel Paul Wilson, another 

student, kept Wisnosky company on the front porch of the house. 

When Walton and Wilson asked Wisnosky about her relationship with 

Barnabei, she remarked, "He is all right, but I have had better." 

 3This claim proved to be false. Although Barnabei at one 

time had been a TKE pledge at Stockton State College in New 

Jersey, he never became a member of the fraternity. 
- 5 - 

 About 5:00 a.m., Walton left Wisnosky asleep in Barnabei's bed, 

and, later that morning, Wisnosky returned to her dormitory room 

without incident. 

 The following day at a fraternity meeting, when Barnabei 

"was bragging about his sex life" and Walton told those in 

attendance about Wisnosky's remark, Barnabei became agitated. 

When those present began to laugh and tease him, he denied that 

he had had sexual intercourse with Wisnosky, stating that they 

had had only oral sex. 

 On September 22, 1993, about 1:00 a.m., William Rolland Gee, 

III, a TKE pledge, drove Barnabei from a TKE pledge meeting to 

Barnabei's rooming house. Wisnosky was in Barnabei's room when 

Gee departed about 45 minutes later. 

 Sometime in the early hours of September 22, Michael 

Christopher Bain, who lived in the bedroom directly above 

Barnabei's, began hearing very loud music emanating from 

Barnabei's room. Bain first stomped on the floor in an 

unsuccessful effort to get Barnabei to reduce the volume of the 

music. Bain and David Wirth, another roomer in the house, then 

went downstairs. They pounded on Barnabei's door for about five 

minutes, but no one answered, and they tried to open the door, 

but it was locked. 

 Meanwhile, Troy Manglicmot, another occupant of the house, 

was suddenly awakened when Barnabei rushed into his room. 

Speaking in a "strong, forceful tone," Barnabei demanded that 
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Manglicmot move his vehicle because it was blocking Barnabei's 

car in the driveway next to the house. Barnabei took 

Manglicmot's car keys, but he could not start the vehicle. 

Manglicmot then moved his vehicle, and Barnabei began to back his 

car out of the driveway. After striking the side of the house 

next door and nearly colliding with Manglicmot's vehicle and 

Wirth's truck, Barnabei "pulled out real fast" onto the street 

and drove away. 

 That same morning, about 2:30 a.m., Justin Dewall, another 

roomer in the house, returned to the house and was unable to find 

his dog. In the course of looking through the house for the dog, 

 he knocked on Barnabei's door. When Barnabei opened the door 

slightly, Dewall observed that Barnabei was "stark naked" and 

that Barnabei's face was expressionless. Barnabei appeared 

"wide-eyed, open-mouthed, and he wasn't focusing on [Dewall] when 

he was looking at [him]." 

 When Wirth left the house about 7:30 that morning, he saw 

Barnabei asleep on a couch in the living room. Wirth asked 

Barnabei why he was not sleeping in his room, and Barnabei 

responded that "it was a long, f___ed-up story." As Wirth walked 

to his truck, he found a shoe near the rear of Barnabei's car. 

Wirth threw the shoe, which was later identified as belonging to 

Wisnosky, toward the back porch. 

 About 9:30 a.m., Barnabei telephoned Eric Scott Anderson, 

another TKE pledge, and asked Anderson to bring him a blanket. 
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When Anderson arrived at Barnabei's door, he noticed that 

Barnabei's waterbed, unlike on a past occasion, had no bed 

sheets. 

 In the early afternoon of September 22, Barnabei was seen by 

Dewall's girlfriend carrying a duffle bag and a surfboard from 

his bedroom. About 2:45 that afternoon, Barnabei offered Richard 

Patton, a TKE pledge, a ride to a fraternity sporting event. 

Before departing, Barnabei told Patton that he had been carrying 

a surfboard in his car and asked if Patton could take it to his 

room "because he was tired of carrying it around in his car." 

Patton took the surfboard to his room and put it in a closet. 

Upon leaving in Barnabei's car, Patton noticed "a really bad 

smell." Barnabei told him that the smell probably came from his 

"bag of laundry," a large, closed duffle bag, in the backseat of 

the car. Also during that afternoon, Barnabei borrowed, or tried 

to borrow, money from Patton and others. 

 About 5:30 or 6:00 p.m., he called Anderson and asked if 

Anderson had "heard anything." When Anderson inquired as to what 

Barnabei was referring, Barnabei replied, "[L]ike, oh, nothing." 

 Barnabei then stated that he was "going away for a couple days 

to work with [his] dad." Barnabei went to Towson, Maryland and 

later to Ohio, where he was arrested in December 1993. 

 On September 23, several police officers went to Barnabei's 

rooming house, where they recovered Wisnosky's other shoe, which 

appeared to be bloodstained. They also recovered a pair of white 
- 8 - 

 

socks from atop a trash can beside the house and a towel from the 

rear of the house next door. The towel exhibited dark red 

stains. 

 After interviewing the occupants of the house, the police 

obtained a search warrant and proceeded to search Barnabei's 

room, which "appeared to have been abandoned." The police found 

stains on Barnabei's waterbed and on one of the bedroom walls, 

and a damp, red stain was discovered beneath a carpet. Stains 

also were found on the surfboard which was retrieved from 

Patton's bedroom. In addition, the police recovered a 

handwritten note which stated, "Women just don't get it." 

 A state forensic serologist found sperm on Wisnosky's 

vaginal swabs. She also found blood underneath Wisnosky's 

fingernails, on one of her shoes, on the surfboard, and on the 

washcloth and towel, and hairs and fibers on the socks, towel, 

and washcloth. 

 A state DNA analyst conducted an RFLP DNA analysis of 

various samples.4 She testified that blood recovered from the 

waterbed frame matched that of Wisnosky and that the chances were 

one in 202,000 that the blood came from a Caucasian other than 

Wisnosky. She also stated that the chances were one in 972 

million that Barnabei did not contribute the sperm found on the 

vaginal swabs. The analyst also determined that the stain found 

 4For a detailed explanation of DNA print identification, see 

Spencer v. Commonwealth, 238 Va. 275, 286-89, 384 S.E.2d 775, 

781-82 (1989), cert. denied, 493 U.S. 1036 (1990). 
- 9 - 

 

under the carpet in Barnabei's room was human blood. 

 Another DNA analyst conducted a PCR DNA analysis of various 

samples.5

 She determined that the blood recovered from the 

surfboard, shoe, wall, and waterbed was consistent with 

Wisnosky's blood type. She testified that only 3.9 percent of 

the Caucasian population has the "HLA DQα type" found in these 

samples. She also stated that the sperm fraction recovered from 

the vaginal swabs was consistent with Barnabei's blood type and 

that only 1.9 percent of the Caucasian population has the HLA DQα

type found in this sample. 

 An expert on hair and fiber analysis determined that the 

socks recovered contained four pubic hairs. These hairs were 

similar to samples taken from Wisnosky and dissimilar to 

Barnabei's samples "in all identifiable microscopic 

characteristics." 

 III 

 PRETRIAL MATTERS 

 A 

 Pretrial, Barnabei filed a motion in limine seeking to 

prohibit the medical examiner, who performed the autopsy, from 

giving an opinion whether "force was used to inflict any of the 

injuries to the vagina or anus of the victim." Barnabei asserted 

that such testimony would invade the province of the jury on the 

ultimate issue whether Wisnosky was the victim of rape. 

 5For a detailed explanation of PCR DNA amplification, see 

Spencer v. Commonwealth, 240 Va. 78, 96, 393 S.E.2d 609, 620, 

cert. denied, 498 U.S. 908 (1990). 
- 10 - 

 At a hearing on the motion, the medical examiner testified 

that he had found vaginal bruising and that such bruising could 

have been caused only by "forcible penetration of the vagina." 

He also said that there were various possible explanations for 

his findings and that he used the term "force" in a medical 

sense. 

 The examiner also testified that he had found a tear of the 

anus and stretching of the anal opening, which indicated to him 

that "forcible anal penetration" had occurred "within the past 

several hours prior to [the victim's] death." The examiner 

reemphasized, however, that he only could say "medically" that 

force had been used and that it was not for him to say "[w]hether 

a person would consent to force being used." 

 At the conclusion of the medical examiner's pretrial 

testimony, and based upon the Commonwealth's Attorney's 

"representations" regarding what the evidence would show, 

Barnabei's counsel informed the trial court that "there [was] no 

immediate [need] to argue the motion." Consequently, the trial 

court denied the motion in limine. 

 At trial, the medical examiner gave lengthy testimony about 

the autopsy and his findings. Among other things, he testified 

that the vaginal bruising was caused by a "violent penetration of 

that area." 

 On appeal, Barnabei claims that the medical examiner's trial 

testimony differed from his pretrial testimony and that the 
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testimony given at trial invaded the province of the jury on an 

ultimate issue of fact. The record shows, however, that, during 

the trial, Barnabei never objected to any of the examiner's 

testimony. Consequently, Barnabei's claim has been procedurally 

defaulted. Rule 5:25. 

 B 

 Barnabei contends that the trial court erred in refusing to 

appoint a forensic pathologist to assist in his defense and to 

rebut the medical examiner's testimony about Wisnosky's bruises 

and other injuries because the only evidence of rape adduced at 

trial was the medical examiner's testimony. He asserts that the 

Supreme Court's holding in Ake v. Oklahoma, 470 U.S. 68 (1985), 

dictates this result. 

 We addressed a similar contention in Husske v. Commonwealth, 

252 Va. ___, ___, ___ S.E.2d ___, ___ (1996) (this day decided), 

wherein we said that, in certain circumstances, the Due Process 

and Equal Protection Clauses of the Constitution of the United 

States require the appointment of an expert, at the 

Commonwealth's expense, to assist an indigent defendant in his 

defense. We made clear, however, that an indigent defendant's 

constitutional right to the appointment of an expert is not 

absolute. We held, instead, that 

 an indigent defendant who seeks the appointment of an 

expert witness, at the Commonwealth's expense, must 

demonstrate that the subject which necessitates the 

assistance of the expert is "likely to be a significant 

factor in his defense," Ake, 470 U.S. at 82-83, and 

that he will be prejudiced by the lack of expert 

assistance. Id. at 83. An indigent defendant may 
- 12 - 

satisfy this burden by demonstrating that the services 

of an expert would materially assist him in the 

preparation of his defense and that the denial of such 

services would result in a fundamentally unfair trial. 

Id. at ___, ___ S.E.2d at ___ (slip op. at 11-12). 

 Thus, an indigent defendant seeking the appointment of an 

expert has the burden of showing a particularized need therefor. 

 The required showing must be determined on a case-by-case basis, 

and a determination whether an adequate showing has been made is 

a matter that rests within a trial court's discretion. Id. at 

___, ___ S.E.2d at ___ (slip op. at 12). 

 We think that, in the present case, Barnabei failed to make 

the particularized showing that would have entitled him to the 

appointment of an expert forensic pathologist at the 

Commonwealth's expense. At most, Barnabei hoped or suspected 

that an expert might testify that the injuries to Wisnosky's 

vagina and anal opening did not necessarily result from force. A 

hope or suspicion that favorable evidence may be procured from an 

expert, however, is not sufficient to require the appointment of 

an expert. Clearly, therefore, the trial court did not abuse its 

discretion in denying Barnabei's request. Id. at ___, ___ S.E.2d 

at ___ (slip op. at 12). 

 C 

 Barnabei also contends that the trial court erred in denying 

his motion for a bill of particulars specifying the evidence upon 

which the Commonwealth intended to rely in seeking the death 

penalty. He contends on appeal that the trial court's refusal to 
- 13 - 

order the bill of particulars denied him his constitutional due 

process right to notice and an opportunity to defend against the 

death penalty. 

 When Barnabei presented argument before the trial court, 

however, he did not assert a constitutional basis for his motion. 

 Instead, he "move[d] the Court in its discretion to order the 

Commonwealth to furnish [him] a bill of particulars." (Emphasis 

added.) Consequently, his constitutional argument is 

procedurally defaulted. Rule 5:25. 

 D 

 Barnabei further contends that the Commonwealth suppressed 

certain exculpatory evidence thereby depriving him of a fair 

trial. On brief, however, Barnabei makes many conclusional 

assertions that are either procedurally defaulted or meritless. 

Only one contention warrants discussion. 

 Barnabei filed a motion seeking all witness statements, 

which had been taken by the police, concerning the nature of his 

sexual relationship with Wisnosky. After an in camera

examination of the statements, the trial court permitted Barnabei 

to examine two of five pages of one individual's statement. The 

trial court determined that the remaining statements were not 

exculpatory and sealed them.6

 

 

 6The statement which the court permitted Barnabei to examine 

was that of Thomas Walton. Walton stated that he had asked 

Wisnosky about her sexual relations with Barnabei and that 

Wisnosky had replied, "He was good, but I've had better." 
- 14 - 

 We have examined the sealed statements and find that one 

undisclosed statement, made by Michael Bain, appears to be 

equally as exculpatory as the one revealed. Bain stated that he 

heard Barnabei ask Wisnosky if she liked anal intercourse and 

that Wisnosky smiled and nodded her head affirmatively. 

 At trial, however, Bain, a Commonwealth's witness, testified 

about the same incident during both direct examination and crossexamination. Consequently, we hold that, assuming the trial 

court erred in sealing Bain's statement, the disclosure at trial 

of the incident made any such error harmless beyond a reasonable 

doubt. 

 IV 

 JURY MATTERS 

 Barnabei contends that the trial court erred in removing for 

cause prospective jurors Charles Bazzell and Mary Howell. 

 During voir dire, Bazzell advised the court that he had "an 

opinion [that] would prevent [him] from convicting anyone of an 

offense which is punishable with death." Upon further 

questioning, he told the court that he "[did] not believe in the 

death penalty." In response to a question from defense counsel, 

however, Bazzell stated that there were crimes, such as the 

Oklahoma City bombing, for which he would consider imposition of 

the death penalty. He said he thought it was "possible" that his 

beliefs would prevent or substantially impair his ability to 

follow the court's instructions, but he would not know until he 

heard the evidence. Finally, he conceded that his personal 
- 15 - 

opposition to the death penalty "would make it difficult for 

[him] to consider the Court's instructions" requiring him to 

consider imposition of a death sentence. 

 Also during voir dire, Howell, a member of the Maryland Bar, 

initially told the court that she had beliefs "which would 

prevent [her] from voting or substantially impair [her] ability 

to vote for imposition of the death penalty upon an individual 

convicted of capital murder." Later, she said her beliefs would 

not prevent or hinder her consideration of the death penalty 

"under the appropriate circumstances." Subsequently, however, in 

response to questioning by the court, she again stated that her 

beliefs would prevent or substantially impair her from voting to 

impose the death penalty, adding, "I am opposing the death 

penalty." She admitted that she was "not answering clearly" and 

that her voir dire "may sound conflicting." 

 The appropriate standard for determining when a prospective 

juror may be excluded for cause because of the juror's views 

about the death penalty is whether the juror's views would 

substantially impair or prevent the performance of his duties as 

a juror in accordance with his oath and the court's instructions. 

Wainwright v. Witt, 469 U.S. 412, 424 (1985). Application of 

this standard rests within the sound discretion of the trial 

court, and its ruling to exclude a prospective juror will not be 

disturbed on appeal unless the ruling constitutes manifest error. 

Yeatts v. Commonwealth, 242 Va. 121, 134, 410 S.E.2d 254, 262 
- 16 - 

(1991), cert. denied, 503 U.S. 946 (1992). The trial court is 

accorded such deference because it sees and hears the prospective 

jurors. Weeks v. Commonwealth, 248 Va. 460, 475, 450 S.E.2d 379, 

389 (1994), cert. denied, ___ U.S. ___, 116 S.Ct. 100 (1995); 

Pope, 234 Va. at 123-24, 360 S.E.2d at 358. Finally, in 

determining whether a prospective juror should have been excluded 

for cause, we review the entire voir dire, rather than a single 

question and answer. Fitzgerald v. Commonwealth, 223 Va. 615, 

628, 292 S.E.2d 798, 805 (1982), cert. denied, 459 U.S. 1228 

(1983). 

 When we examine the entire voir dire of Bazzell and of 

Howell in light of the foregoing principles of law, we cannot say 

that the trial court committed manifest error in excluding them 

for cause. Indeed, we think the trial court reasonably concluded 

that both these prospective jurors were opposed to the death 

penalty and that their views would have prevented or 

substantially impaired their performances as jurors in accordance 

with their oaths and the court's instructions. 

 V 

 GUILT PHASE 

 Barnabei contends that the evidence is insufficient to 

support the jury's finding that he raped Wisnosky and, therefore, 

that he cannot be found guilty of capital murder. More 

specifically, he asserts that "there was literally no evidence of 

his having forced or used the threat of force to engage in sexual 

relations with [Wisnosky]." We do not agree. 
- 17 - 

 

 The evidence clearly supports the finding that Barnabei and 

Wisnosky had sexual intercourse prior to Wisnosky's death. The 

sperm found on Wisnosky's vaginal swabs was consistent with 

Barnabei's blood type, and the chances were one in 972 million 

that someone other than Barnabei contributed the sperm. The 

evidence also supports the finding that Barnabei used force or 

the threat of force. The medical examiner found bruising on the 

introitus of Wisnosky's vagina and tearing of her anal opening, 

and he testified that the bruising was caused by "violent 

penetration." The examiner also found bruising on the abdomen, 

and he testified that the bruising could have been caused by the 

assailant's kneeling on Wisnosky "to hold [her] in place." When 

this evidence is considered in conjunction with Wisnosky's other 

brutal injuries, we hold that the evidence clearly supports the 

jury's finding that Wisnosky had been raped. 

 VI 

 PENALTY PHASE 

 A 

 Seven witnesses testified in the penalty phase of the trial. 

 The Commonwealth called Sandra Ann Joaquin and Paula Barto; 

Barnabei presented Charles A. Parker, Harvey L. Smith, Carla 

DiSantis, Craig Barnabei, and Shannon Moore McHale.7

 7Barnabei also called Dr. David Ray Faber, II, "a specialist 

in adult general psychiatry and forensic and administrative 

psychiatry," who had been appointed by the trial court to perform 

various psychological examinations on Barnabei. Dr. Faber 

testified, out of the jury's presence at Barnabei's request, that 

he did not find any "psychological mitigating factors that could 

be presented to the jury." He also testified that he did not 

find anything to indicate that Barnabei was suffering from any 
- 18 - 

(..continued) 

 Joaquin testified that she had had an "[o]n and off" 

romantic relationship with Barnabei during 1989 and 1990, while 

they were students at Stockton State College, in New Jersey. On 

a number of occasions, Barnabei had been "physically violent" 

with her. On one occasion, he had "head butted" Joaquin 

approximately three times, resulting in her seeking treatment for 

a concussion. On another occasion, Barnabei had thrown her 

against a wall and grabbed her tightly by the throat. Another 

time, he had kicked her "between the legs," "grabbed" her, and 

"smacked" her head. Although Barnabei had threatened to kill 

Joaquin if she complained to the police, she finally filed 

"harassment charges" against him. She ultimately agreed to drop 

the charges in exchange for Barnabei's agreeing to leave her 

alone. 

 Barto, Barnabei's former wife, also testified about his 

aggressive behavior. She recounted that he had slapped her face 

hard enough to leave "marks," had thrown her against a wall, and 

had forced her to have anal intercourse against her will. 

Barnabei had told Barto that, if she ever left him, he would find 

and kill her. Barto finally left Barnabei on June 24, 1988, and, 

thereafter, Barnabei left many threatening telephone messages on 

her parents' answering machine. In one message, he said that he 

was going to burn her father's business. 

type of mental disease or defect that the jury could consider in 

mitigation of Barnabei's punishment. 
- 19 - 

 Parker, the mayor of Somers Point, New Jersey, a city of 

about 12,000 citizens, testified that he was familiar with the 

Barnabei family. He knew Barnabei as a young, grade school boy 

when Barnabei received an academic award. However, he had not 

seen Barnabei for "probably four or five years." 

 Smith, a councilman in Somers Point, testified that he had 

known the Barnabei family socially since 1979. He recalled that 

Barnabei "was one of the talented, gifted students" and that 

Barnabei received an award when he finished the eighth grade. 

However, he also had not seen Barnabei for "several years." 

 DiSantis testified that she had first become acquainted with 

Barnabei in July 1993, and, in the fall of that year, they had 

begun to date. In December 1993, they began living together in 

an apartment in Cuyahoga Falls, Ohio. She and Barnabei worked in 

the same restaurant. Barnabei was the "floor manager," and he 

worked "[e]very day." They continued to live together until 

Barnabei was arrested. DiSantis also testified that she and 

Barnabei were "intimate" and "had relations." She stated that 

Barnabei was never aggressive with her, never struck her, and was 

"very sweet, very tender, always loving." She never had any 

"physical difficulties [with Barnabei] in [their] intimate 

relationship." 

 Craig Barnabei, the defendant's only sibling, testified 

about his relationship with the defendant, who is two years 

younger than Craig. He said that the two always had a close 
- 20 - 

relationship. As children, they were in the "gifted and talented 

program." When they were older, they "double-dated" on 

occasions, and he noted that girls seemed to have a "particular 

interest" in his brother. Craig further testified that the 

defendant had been popular with other children and that he 

defended those who were being bullied. Craig never saw his 

brother be abusive to anyone. 

 McHale, one of Barnabei's former girlfriends, testified 

that, during 1993 and before Barnabei left New Jersey, she and 

Barnabei had been "lovers and best friends." She never had any 

"physical problems" with him, and he was never abusive or rude to 

her, even though she purposely tried to provoke him on an 

occasion. 

 B 

 Barnabei contends that the trial court erred in refusing to 

instruct the jury that he would not be eligible for parole for at 

least 25 years. He asserts that the Supreme Court's rationale in 

Simmons v. South Carolina, 512 U.S. ___, 114 S.Ct. 2187 (1994), 

applies to his case. We disagree. 

Simmons applies only to capital defendants who are 

ineligible for parole. Barnabei is not parole-ineligible. See, 

e.g., Roach v. Commonwealth, 251 Va. 324, 336, 468 S.E.2d 98, 111 

(1996); Joseph v. Commonwealth, 249 Va. 78, 84, 452 S.E.2d 862, 

866, cert. denied, ___ U.S. ___, 116 S.Ct. 204 (1995); Fitzgerald

v. Commonwealth, 249 Va. 299, 306-07, 455 S.E.2d 506, 510-11 
- 21 - 

(1995), cert. denied, ___ U.S. ___, 116 S.Ct. 1279 (1996). 

 C 

 Barnabei also contends that the trial court erred in 

refusing proposed jury instructions B, C, and D, which relate to 

mitigating factors and sentence alternatives. Again, we do not 

agree. We conclude that the refused instructions, to the extent 

they accurately stated the law, were unnecessary in view of the 

instructions given.8 Indeed, the instructions given by the trial 

court were virtually identical to those we previously have 

affirmed. See, e.g., Gray, 233 Va. at 350-51, 356 S.E.2d at 178. 

 D 

 Two of Barnabei's contentions regarding certain rulings of 

the trial court in the penalty phase are procedurally defaulted. 

 Although Barnabei contends on appeal that the instructions 

regarding the "vileness" and "future dangerousness" predicates 

were vague and incomplete, he did not object when the 

instructions were given. Therefore, we cannot consider this 

contention. Rule 5:25. 

 Barnabei also contends on appeal that it is unclear from the 

jury's verdict whether it based its verdict upon one or both of 

the aggravating factors because the verdict contains the term 

"and/or." Thus, he asserts, the verdict "is not meaningfully or 

 

 8Instruction B was obviously improper because it would have 

incorrectly told the jury that Barnabei had "no significant 

history of prior criminal activity" and that "[t]he victim 

consented to the act" of intercourse. 
- 22 - 

rationally reviewable." Again, however, Barnabei did not object 

to the verdict when it was returned by the jury or when judgment 

was entered thereon. Thus, this contention is procedurally 

defaulted. Rule 5:25.9

 E 

 Prior to trial, Barnabei filed a motion pursuant to Code 

§ 19.2-264.3:2 to require the Commonwealth to provide notice of 

any unadjudicated criminal conduct which it intended to present 

in the penalty phase. Code § 19.2-264.3:2 provides, in pertinent 

part, the following: 

 Upon motion of the defendant, in any case in which 

the offense for which the defendant is to be tried may 

be punishable by death, if the attorney for the 

Commonwealth intends to introduce during a sentencing 

proceeding held pursuant to § 19.2-264.4 evidence of 

defendant's unadjudicated criminal conduct, the 

attorney for the Commonwealth shall give notice in 

writing to the attorney for the defendant of such 

intention. The notice shall include a description of 

the alleged unadjudicated criminal conduct and, to the 

extent such information is available, the time and 

place such conduct will be alleged to have occurred. 

 Approximately three weeks prior to trial, the Commonwealth 

filed a 12-page notice, detailing numerous incidents of 

unadjudicated criminal conduct which it intended to present. The 

notice alleged, inter alia, that, during the time that Barnabei 

had been married to Paula Barto, he had "engaged in a continuous 

 

 9Also defaulted are Barnabei's generalized claims that the 

trial court treated him unfairly and was biased in favor of the 

Commonwealth. Further, we find no merit to the claim that the 

court had an ex parte communication with the Commonwealth's 

witness, Michael Bain. 
- 23 - 

course of threatening and assaultive conduct against [her], said 

conduct occurring on such a continuous and regular basis that 

[she could not] recall each and every specific date and occasion 

upon which such threatening and assaultive conduct occurred." 

 During the penalty phase of the trial, Barto testified about 

her marriage to Barnabei and about various threats and acts of 

violence he had inflicted upon her. During her testimony, Barto 

related one incident when Barnabei had attempted to have anal 

intercourse with her, but she successfully had resisted the 

attempt. Barnabei then objected and moved for a mistrial, 

asserting that the Commonwealth's notice had not adequately 

apprised him of that specific incident. The trial court 

overruled the objection, and Barto further testified, over 

Barnabei's renewed objection, that Barnabei had forced her to 

have sexual intercourse with him on other occasions. 

 Barnabei contends on appeal that the trial court erred in 

allowing Barto to testify about incidents that were not 

specifically alleged in the notice. We do not agree. We think 

the Commonwealth's allegations that Barnabei engaged in 

"assaultive conduct" against Barto and that Barto could not 

recall "each and every . . . occasion" were sufficient to allow 

the admission of her testimony. Moreover, the ruling rested 

within the trial court's sound discretion, and, clearly, the 

court did not abuse its discretion in admitting the testimony. 

 F 
- 24 - 

 Barnabei asserts that, to the extent his sentence was based 

upon a finding of either "vileness" or "future dangerousness," 

"it was in violation of [his] rights as guaranteed by the Sixth, 

Eighth and Fourteenth Amendments of the United States 

Constitution" and that each predicate "of the Virginia death 

penalty statute was unconstitutionally used and found by the 

sentencer." We interpret Barnabei's assertion to be that his 

sentence should be vacated because the aggravating factors set 

forth in the capital murder statute are unconstitutionally vague. 

 We previously have rejected this contention. See, e.g., 

Joseph, 249 Va. at 82-83, 452 S.E.2d at 865-66; Breard v. 

Commonwealth, 248 Va. 68, 74, 445 S.E.2d 670, 675, cert. denied, 

___ U.S. ___, 115 S.Ct. 442 (1994). Adhering to our previous 

holdings, we again reject the contention.10

 VII 

 SENTENCE REVIEW 

 Code § 17-110.1(C) requires this Court to review Barnabei's 

death sentence to determine whether the sentence (1) was imposed 

under the influence of passion, prejudice, or any other arbitrary 

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

imposed in similar cases, considering both the crime and the 

defendant. We conduct this review even though Barnabei makes no 

claim that his sentence was the product of any arbitrary factor 

 

 10Although Barnabei does not explain why the evidence is 

insufficient to prove either statutory aggravating factor, we 

conclude, nonetheless, that the jury's finding in that regard is 

fully supported by the evidence. 
- 25 - 

or that it is excessive or disproportionate. 

 From our independent review of the record, we have found 

nothing to suggest that the death sentence was imposed under the 

influence of passion, prejudice, or any other arbitrary factor. 

 Next, in considering whether the sentence is excessive or 

disproportionate to the penalty imposed in similar cases, we must 

determine whether other sentencing bodies in this jurisdiction 

generally impose the death penalty for comparable or similar 

crimes, considering both the crime and the defendant. Roach, 251 

Va. at 350, 468 S.E.2d at 113. Consequently, we have compiled 

and examined the records of all capital murder cases reviewed by 

this Court, Code § 17-110.1(E), including both cases in which the 

death sentence was imposed and cases in which life imprisonment 

was imposed. In doing so, we have given particular attention to 

those cases in which the death sentence was based upon both the 

"vileness" and the "future dangerousness" predicates. 

 From this review, we conclude that Barnabei's death sentence 

is neither excessive nor disproportionate to penalties generally 

imposed by other sentencing bodies in the Commonwealth for 

similar and comparable crimes. See, e.g., Goins v. 

Commonwealth, 251 Va. 442, 469-70, 470 S.E.2d 114, 132 (1996); 

Sheppard v. Commonwealth, 250 Va. 379, 395, 464 S.E.2d 131, 141 

(1995), cert. denied, ___ U.S. ___, 116 S.Ct. 1332 (1996); Graham

v. Commonwealth, 250 Va. 79, 89, 459 S.E.2d 97, 102, cert. 

denied, ___ U.S. ___, 116 S.Ct. 535 (1995); Breard, 248 Va. at 
- 26 - 

89, 445 S.E.2d at 682; Spencer, 238 Va. at 318-20, 384 S.E.2d at 

799-800. 

 VIII 

 CONCLUSION 

 We have considered all issues discussed in Barnabei's brief 

and find no reversible error. After conducting the sentence 

review pursuant to Code § 17-110.1, we hold that the capital 

murder conviction and the sentence of death should be affirmed. 

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

Record No. 952168--Affirmed. 

Record No. 952169--Affirmed.