Morrisette v. Com.

• Decision Date: 13 September 2002
• Docket Number: Record No. 020323,Record No. 020324.
• Citation: 264 Va. 386,569 S.E.2d 47,22 Va. App. 424
• Court: Virginia Supreme Court
• Parties: William Wilton MORRISETTE, III v. COMMONWEALTH of Virginia.

569 S.E.2d 47

264 Va. 386

22 Va. App. 424

William Wilton MORRISETTE, III v. COMMONWEALTH of Virginia.

Record Nos. 020323, 020324.

Supreme Court of Virginia.

September 13, 2002.

George M. Rogers, III, Hampton; Stephen J. Weisbrod (Weisbrod & Phillips, on brief), for appellant.

Pamela Rumpz, Asst. Atty. Gen. (Jerry W. Kilgore, Atty. Gen., on brief), for appellee.

Present: All the Justices.

Opinion by Justice CYNTHIA D. KINSER.

A jury convicted William Wilton Morrisette, III, of the 1980 rape and capital murder of Dorothy M. White. At the conclusion of the penalty phase of a bifurcated trial, the jury fixed Morrisette's punishment at death on the capital murder charge and at life imprisonment on the rape charge. The jury based its sentence of death on findings of both "future dangerousness" and "vileness." See Code § 19.2-264.2. The trial court sentenced Morrisette in accordance with the jury verdict. We have consolidated the automatic review of Morrisette's death sentence with his appeal of the capital murder conviction. Code § 17.1-313(F). We have also certified Morrisette's appeal of his rape conviction from the Court of Appeals and consolidated that appeal with the appeal of the capital murder conviction. Code § 17.1-409. After considering the issues raised in Morrisette's assignments of error and conducting our mandated review pursuant to Code § 17.1-313(C), we find no error in the judgments of the circuit court. Accordingly, we will affirm Morrisette's convictions for rape and capital murder, in violation of Code §§ 18.2-61 and 18.2-31(5), respectively, and his sentence of death.

I. FACTS

In accordance with well-established principles, we state the evidence in the light most favorable to the Commonwealth, the prevailing party at trial. Bell v. Commonwealth, 264 Va. 172, 178, 563 S.E.2d 695, 701 (2002) (citing Burns v. Commonwealth, 261 Va. 307, 313, 541 S.E.2d 872, 877, cert. denied, ___ U.S. ___, 122 S.Ct. 621, 151 L.Ed.2d 542 (2001); Jackson v. Commonwealth, 255 Va. 625, 632, 499 S.E.2d 538, 543 (1998), cert. denied, 525 U.S. 1067, 119 S.Ct. 796, 142 L.Ed.2d 658 (1999); Roach v. Commonwealth, 251 Va. 324, 329, 468 S.E.2d 98, 101, cert. denied, 519 U.S. 951, 117 S.Ct. 365, 136 L.Ed.2d 256 (1996)). We also accord the Commonwealth the benefit of all inferences fairly deducible from the evidence. Id. (citing Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)).

A. GUILT PHASE

When Dorothy White did not report for work on the morning of July 25, 1980, two of her co-workers became concerned and went to her house trailer, located on Pine Needle Road in the City of Hampton, to check on her welfare. Upon entering the trailer, they found White's body lying on the kitchen floor. Her blouse and bra were pulled up, exposing her breasts; she was otherwise nude. Her throat had been cut, and she had sustained several other wounds. A "milkylooking substance [that] appeared to be wet" was visible on her pubic hair. The kitchen was splattered with blood, but there were no signs of a struggle in any other portion of White's home nor any evidence of a forced entry into the dwelling.

An autopsy was performed the next day, during which samples of White's hair, blood, and body fluids were collected from her body by using a Physical Evidence Recovery Kit (PERK). Testing of those samples revealed the presence of intact sperm on the swabs taken from White's vulva, vagina, and cervix; only a sperm head was found on the anal swab. The autopsy documented that White had suffered a slash wound across her throat, which totally severed her trachea, the right carotid artery, the jugular vein, and certain muscles in her neck; the wound partially severed the esophagus. White had also sustained a stab wound to her neck; three stab wounds to her chest, one of which penetrated her heart; and stab wounds to her abdomen and flank, for a total of eight stab wounds. Additional defensive wounds on her hands and legs indicated that White had attempted to ward away the knife blows.

Several of the wounds individually could have caused White's death, but the slash wound to her throat was "fatal within minutes." However, despite the lethal nature of that wound, it did not render White instantly unconscious. Dr. Faruk B. Presswalla, the forensic pathologist who performed the autopsy, testified that because the trachea, or windpipe, was cut, much of the flowing blood traveled down that airway. He described the effect as "sort of like drowning in your own blood." The time of death was estimated at approximately 11:30 p.m. on the night before White's co-workers discovered her body.

In the days following the murder, police officers interviewed several individuals as possible suspects, including Morrisette. Morrisette acknowledged that he knew White through his employer, Albert "Bill" Anthony, who was White's "boyfriend," and that he had previously washed White's automobile when she brought it to Anthony's "car lot." Morrisette had also accompanied Anthony to White's residence on two occasions, once to perform yard work and the second time to pick up a stereo. When Morrisette was questioned concerning his whereabouts on the night in question, he stated that he had gone to Fertitta's Restaurant, where he had consumed hot dogs and beer. He stated that after eating, he walked to the Grandview Fishing Pier, talked with several people who were fishing, and drank another beer. According to Morrisette, he then went to the Circle Inn around 10:00 p.m. and stayed there until 2:00 a.m. the following morning. He told the police that, although his sister lived in an apartment above the Circle Inn, he did not go to her apartment when he left the Circle Inn, but instead slept in an old Dodge pick-up truck in the parking lot of the Circle Inn. He said that he awoke around 9:00 or 10:00 a.m. the next morning, returned to the Circle Inn, and drank with a person who lived in a trailer park across the street from the Circle Inn.

The murder investigation became stalled, and no one was charged with the crime until 19 years later, when a DNA profile extracted from sperm retrieved from the cervix and vulva swabs of White's body was entered into the Virginia Forensic Laboratory's DNA databank.¹ A search in the databank revealed that Morrisette's DNA profile² was a "cold hit" match with the DNA profile recovered in the PERK samples taken from White. As a result, a search warrant was obtained for a sample of Morrisette's blood, and additional testing using that sample confirmed that the DNA profile extracted from the sperm recovered from the victim was consistent with Morrisette's DNA profile.³ According to David A. Pomposini, who testified at trial as an expert in the field of forensic biology, the probability of randomly selecting an unrelated individual other than Morrisette with a DNA profile matching the DNA profile of the sperm recovered from the cervix swabs of the victim is one in 900 million in the Caucasian population, one in 1.2 billion in the Black population, and one in 800 million in the Hispanic population.⁴

B. PENALTY PHASE

In the penalty phase of the trial, the Commonwealth introduced photographs of the victim as evidence of the vileness of the murder. The Commonwealth also argued that Morrisette was a future danger to society, introducing evidence of his previous convictions for abduction and maiming in 1986, for burglary in 1984, and for driving under the influence of alcohol in 1999.

The victim of the prior abduction and maiming testified that Morrisette had attacked her as she sat in a car parked outside a high school, waiting for her daughter to emerge from band practice. He had a knife and pushed her down onto the car seat, trying to gag her. Morrisette cut her jawbone and neck, fleeing only when other vehicles approached.

In mitigation, Morrisette and the Commonwealth stipulated that, according to a deputy at the regional jail where Morrisette had been incarcerated prior to trial, Morrisette was a model inmate with a positive attitude. Morrisette's daughter and sister testified as to his affection for his family.⁵

II. ANALYSIS

A. PRE-TRIAL AND TRIAL ISSUES

1. SPEEDY TRIAL

Morrisette claims that the delay between the time of the offense in 1980 and his arrest in August 1999 violated his due process rights under both the Constitution of the United States and the Constitution of Virginia. In the statement that Morrisette gave to the police shortly after the murder, he provided details concerning his whereabouts on the evening in question, including names, addresses, and telephone numbers of putative corroborating witnesses. Testimony at trial established that the police never made any attempt to confirm Morrisette's alleged alibi after he provided that information. Morrisette asserts that, as a result of the pre-indictment delay, he was unable to locate the people who could have corroborated his version of his activities on the evening when White was murdered.

To buttress his claim of prejudice because of the pre-indictment delay, Morrisette also relies on the fact that, in 1985, White's PERK samples were resubmitted to the forensic laboratory for testing against Morrisette's PERK samples collected in connection with the abduction and maiming charges. However, Morrisette's PERK was never submitted to the laboratory, and the Hampton Police Department eventually directed that White's PERK be returned without any additional testing.

In denying Morrisette's motion to dismiss the indictments because of the pre-indictment delay, the trial court concluded that both the Commonwealth and Morrisette had probably experienced some actual prejudice because of the death of witnesses since White's murder. However, the court determined that a defendant has the burden to establish that the delay was intentional and used by the Commonwealth to gain a tactical advantage, and concluded that Morrisette had not carried that burden...