Defendant was convicted in the Circuit Court, York County, N. Prentis Smiley, Jr., J., of capital murder, use or display of firearm while committing murder, robbery, and use or display of firearm while committing robbery. Death penalty was imposed. Appeals of capital and non-capital convictions were combined. The Supreme Court, Kinser, J., held that: (1) defendant was not entitled to jury instructions on lesser included offenses of first-degree murder, second-degree murder, or voluntary manslaughter; (2) there was sufficient evidence of future dangerousness to support imposition of death penalty; (3) photographs of victim, including autopsy photographs, were admissible; (4) defendant was not entitled to mail questionnaire to each prospective juror; and (5) death sentence was neither excessive nor disproportionate. Affirmed.

KINSER, Justice.

A jury convicted the defendant, Dennis Mitchell Orbe, of four charges in connection with a murder during the commission of robbery. Those convictions are: (1) capital murder, in violation of Code § 18.2-31(4); (2) use or display of a firearm while committing murder, in violation of Code § 18.2- 53.1; (3) robbery, in violation of Code § 18.2-58; and (4) use or display of a firearm while committing robbery, in violation of Code § 18.2-53.1.

At the conclusion of the sentencing phase of a bifurcated trial, the jury fixed the defendant's punishment at death for the capital murder, 50 years for the robbery, and 5 years for each of the firearms offenses. The jury imposed the sentence of death based on its finding of future dangerousness under Code §§ 19.2-264.2 and -264.4. After reviewing the post-sentence report required by Code § 19.2-264.5, the trial court sentenced the defendant in accordance with the jury verdicts. The defendant appealed his non-capital convictions to the Court of Appeals pursuant to Code § 17.1-406. [FN1] We certified that appeal (Record No. 990364) to this Court under the provisions of Code § 17.1-409 for consolidation with the defendant's appeal of his capital murder conviction (Record No. 990363) and the sentence review mandated by Code § 17.1-313.

FN1. Title 17.1 became effective on October 1, 1998, replacing Title 17. Although the parties briefed and argued this appeal under the provisions of Title 17, we will cite Title 17.1 in this opinion since the relevant provisions remain unchanged.

On appeal, the defendant challenges the trial court's refusal to instruct the jury on lesser included offenses, the finding of future dangerousness based on consideration of unadjudicated criminal acts, the admission of photographic evidence, and the court's refusal to allow the defendant to mail a questionnaire to prospective jurors. After considering each of these arguments and conducting our statutory review pursuant to Code § 17.1-313 we find no error in the defendant's convictions and sentence of death. Thus, we will affirm the judgments of the circuit court.

I. FACTS

A. GUILT PHASE

The criminal offenses for which the defendant was convicted occurred at a gas station and convenience store located in York County. The convenience store was equipped with a video camera recording system that monitored three areas of the premises, including the check-out counter and cash register. The camera focused on the cash register captured the incident that is pertinent to this appeal and recorded it on a video tape. That tape reveals the following sequence of events. [FN2]

FN2. At trial, the Commonwealth introduced the video tape recording into evidence and played it for the jury.

Near 3:38 a.m. on January 24, 1998, the defendant entered the convenience store, walked up to the check-out counter where Richard Sterling Burnett was working as a clerk, and pointed a revolver at Burnett's chest. [FN3] After Burnett opened the cash register drawer, the defendant shot him in the chest. As Burnett was clutching his chest and struggling to remain in a standing position, the defendant walked around the counter, reached into the cash register drawer, and removed some money from it. [FN4] He then fled from the store.

FN3. The defendant had been in the store on two occasions on January 23 but had purchased nothing.

FN4. According to a territorial manager for the gas station and convenience store, the sum of $90.65 was missing from the cash register drawer.

A short while later, a customer at the convenience store discovered Burnett's body and called for emergency assistance. F.T. Lyons, an investigator with the York County Sheriff's Office, arrived on the scene about 4:25 a.m. Investigator Lyons found Burnett's body "on the floor ... behind the register." He collected several items from the store for evidentiary purposes, including the video tape recording. He took the video tape to the sheriff's office where he used computer equipment to view it "frame by frame." Lyons captured images from the video tape, digitized and saved them, and then printed several of the images. He distributed those printed images to area law enforcement agencies and the media.

The sheriff's office subsequently received several telephone calls from persons who identified the defendant as the individual in the pictures that Lyons had distributed. Investigator Lyons then obtained warrants charging the defendant with capital murder, robbery, and use of a firearm in the commission of murder. In addition to these three charges, a grand jury subsequently indicted the defendant for use of a firearm during the commission of robbery.

The defendant was not apprehended, however, until January 31, 1998, after a high-speed chase through the streets of Richmond. During the police officers' pursuit, the defendant drove his car across a concrete median strip and struck a telephone pole, then proceeded to drive on the wrong side of the road, and accelerated through a roadblock. Eventually, the defendant jumped out of his vehicle and ran on foot until police officers captured him at the end of an alley.

After placing the defendant under arrest, a police officer searched the defendant's person. During the search, the officer found a partially loaded . 357 magnum revolver in the waistband of the defendant's pants. [FN6] Investigator Lyons eventually took possession of the weapon recovered from the defendant and submitted it to the Commonwealth of Virginia Department of Criminal Justice Services, Division of Forensic Science, for testing. FN6. Willis L. Branch, Jr., the defendant's stepfather, testified that, sometime during the first or second week of January, he discovered that his .357 magnum revolver was missing from the home that Branch shared with the defendant and his mother. At trial, Branch identified the revolver recovered from the defendant as having the same serial number as the one that was missing from his home.

Scott A. Glass, a forensic scientist who works in the field of firearm and tool mark identification at the Division of Forensic Science, tested the revolver along with a "lead semi-wadcutter" [FN7] bullet that had been removed from Burnett's chest during an autopsy. Based on the results of his analysis, Glass concluded that the bullet had been fired from the .357 magnum revolver. FN7. Branch testified that he kept ".357 magnum, 158 grains semi- wadcutters" as ammunition for his revolver.

Dr. Elizabeth Kinnison, a pathologist and an Assistant Chief Medical Examiner for the Commonwealth of Virginia, performed the autopsy on Burnett's body. During the autopsy, Dr. Kinnison recovered the bullet from the right side of Burnett's back where it was lodged. According to Dr. Kinnison, Burnett had "sustained one gunshot wound to the front of the left chest[,]" which was the cause of death. Dr. Kinnison stated that Burnett died "[p]rimarily from hemorrhage or bleeding from these wounds" and that "[t]he structures that were injured that were vital were the heart and the liver and the lung, which all would have caused internal bleeding." She further testified that a person sustaining this type of injury "[m]ight have been in some pain associated with the skin[,]" would have suffered increasing problems with breathing as blood was lost, and would have become dizzy and eventually unconscious before dying.

B. SENTENCING PHASE

During the sentencing phase of the trial, the Commonwealth presented evidence to prove the defendant's future dangerousness. The evidence concerned other criminal acts that the defendant had committed in three separate incidents. The first incident occurred on January 21, 1998. Lois Jones testified that when she and her boyfriend, Mark Scougal, returned home, Scougal discovered the defendant in a bedroom.

The defendant pointed a gun at Scougal and ordered Scougal to drive him "somewhere else" because he was hiding from the police. As the defendant was forcing Scougal to a car, Jones retrieved a gun from her gun cabinet, loaded it, and went out onto the front porch of her house in order to stop the defendant. Although there was conflicting testimony about whether Jones then fired her gun up into the air, the defendant shot at Jones twice. His second shot hit Jones in the calf of her leg and shattered the bone. The defendant then demanded that Scougal give him the car keys, but when Scougal refused to comply, the defendant fled from the scene.

The second episode, also on January 21, 1998, involved Charles Powell and William Bottoms, two elderly gentlemen. While Powell and Bottoms were sitting in the front yard of Bottoms' Richmond home, the defendant approached the two men and ordered them to walk to the rear of the house. The defendant displayed a weapon to the men and stated that he "[had] nothing to lose." After questioning both men about the location of their cars, keys, and wallets, the defendant took Powell's car and left in it.

Karen Glenn and Patricia Tuck testified about the third incident, which occurred on January 30, 1998. After Glenn, Tuck, and another woman arrived at a private residence in New Kent County to perform cleaning services, the defendant, who was already inside the house, approached the women, brandished a handgun, and yelled, "Bitches, get down." As they were starting to "get down," the defendant hit Tuck between her shoulder blades with the gun. He then ordered the three women to crawl on their stomachs to a bedroom. Once the women were in the bedroom, the defendant made them go into a closet. He then nailed a piece of plywood across the closet door.

The women were trapped inside the closet for approximately four and one-half hours, until the homeowner returned and found them. During this ordeal, the defendant proclaimed, "I'm Dennis Orbe, I'm wanted for murder, and it doesn't matter what I do." He also directed the women to empty their pockets and took money, checks, and other valuables, including the keys to Glenn's car, from them. He stole the car.

In accordance with Code § 19.2-264.4(B), the jury also heard evidence "in mitigation of the offense." The defendant's mother and step-father testified about the defendant's troubled childhood and his problems with alcohol abuse. One of his friends described a change in the defendant's behavior shortly before the incidents in January 1998, and the administrator of a regional jail, where the defendant had been incarcerated, testified that he had received only one minor complaint with regard to the defendant's behavior during his confinement.

The defendant also presented testimony from Dr. Thomas A. Pasquale, a clinical psychologist who had evaluated the defendant for purposes of mitigation and risk assessment regarding the defendant's future dangerousness. Dr. Pasquale testified that the defendant had exhibited suicidal intentions at least a year prior to the events that transpired in January 1998 and that the defendant was depressed, in part, over his perceived failure as a father and husband. Dr. Pasquale further reported that the defendant drank heavily and had an impulse control dysfunction.

During his evaluation, Dr. Pasquale learned that the defendant's father had abandoned the defendant at an early age. Consequently, Dr. Pasquale opined that the defendant, who had recently located his father, might have wished to visit his father again and that he had decided to obtain money illegally to accomplish that purpose. According to Dr. Pasquale, the defendant thus "reasoned his way to intrude into a number of individuals' lives by way of robbery, home invasion, weapons discharge[,] ... brandishing and general intimidation."

In conclusion, Dr. Pasquale testified that he did not perceive the defendant as being a future danger in a prison setting unless he was able to access alcohol inside the prison, was abused by those within the prison system, or was placed under conditions of duress while incarcerated. However, Dr. Pasquale stated that, if the defendant escaped from a penitentiary, it would be a "very dangerous, very risky" situation.

* * *

For these reasons, we find no error either in the judgments of the circuit court or in the imposition of the death penalty. Therefore, we will affirm the judgments of the circuit court.

Orbe v. True, 201 F.Supp.2d 671 (E.D.Va. 2002) (Habeas).