Executed March 31, 2004 09:13 p.m. by Lethal Injection in Virginia

22nd murderer executed in U.S. in 2004
907th murderer executed in U.S. since 1976
2nd murderer executed in Virginia in 2004
91st murderer executed in Virginia since 1976

Since 1976	Date of Execution	State	Method	Murderer (Race/Sex/Age at Murder-Execution)	Date of Birth	Victim(s) (Race/Sex/Age at Murder)	Date of Murder	Method of Murder	Relationship to Murderer	Date of Sentence
907	03-31-04	VA	Lethal Injection	Dennis Mitchell Orbe W / M / 33 - 39	06-22-64	Richard Sterling Burnett W / M / 39	01-24-98	Handgun	None	10-27-98

Summary:
At 3:38 a.m. on January 24, 1998, the defendant entered an Exxon convenience store, walked up to the check-out counter where 39 year old Richard Sterling Burnett was working alone as a clerk, and pointed a revolver at Burnett's chest. 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. He then fled from the store. A videotape, made by the store's surveillance system focused on the register, showed the above events and was used as evidence in the trial. The tape clearly showed the shooting was unprovoked, but Orbe claimed that the shooting was accidental. The jury and the Judge did not buy it. Orbe murdered Burnett during a 10-day crime rampage between Jan. 21 and Jan. 31 that also included assaults, shootings, break-ins and thefts in Richmond and in Chesterfield and New Kent counties.

Citations:
Orbe v. Commonwealth, 519 S.E.2d 808 (Va. 1999) (Direct Appeal).
Orbe v. True, 201 F.Supp.2d 671 (E.D.Va. 2002) (Habeas).
Orbe v. True, 233 F.Supp.2d 749 (E.D.Va. 2002) (Habeas).
Orbe v. True, 82 Fed.Appx. 802 (4th Cir. 2003) (Habeas).

Final Meal:
Fried chicken breasts, French fries, green beans, and a plain chocolate brownie.

Final Words:
None.

Internet Sources:

Washington Post

Richmond Times-Dispatch

JARRATT - Dennis Mitchell Orbe was executed by injection last night for the 1998 capital murder of a convenience store clerk in York County. Orbe, 39, of Chester, was pronounced dead at 9:13 p.m., said Larry Traylor, spokesman for the Virginia Department of Corrections. Traylor said Orbe did not appear to be agitated.

A media witness said Orbe's spiritual adviser held a cross to Orbe's face after he had been strapped to the gurney and Orbe kissed it. Traylor said Orbe had his eyes closed as the IVs were put into him and he appeared to be praying. Asked if he had a last statement, Orbe quietly said, "No," according to Traylor.

A group of about 20 capital-punishment protesters holding candles stood in a light rain and fog in a field outside the prison.

Orbe was sentenced to death for the Jan. 24, 1998, slaying of Richard Sterling Burnett, 39. Burnett was shot once in the chest during a robbery that was captured on videotape by a monitor. In an interview earlier this week, Orbe claimed that the shooting was not intentional. "I told him to give me the money. He eventually opened the cash register. He took one or two steps back. I thought he might be thinking of a way to stop me," he said. "The gun went off. I didn't mean to kill the man," Orbe said.

Orbe began a series of crimes Jan. 21, 1998, in Chesterfield County that ended Jan. 31, 1998, in Richmond. Those included assaults, shootings, break-ins and thefts in Richmond and in Chesterfield and New Kent counties. He was captured after a high-speed chase ended in a crash.

Traylor said that Orbe met with immediate family members yesterday afternoon and that he was scheduled to meet with his lawyers and spiritual adviser yesterday evening.

In recent days, his lawyers filed appeals and requests to stay the execution to the U.S. and Virginia supreme courts arguing, among other things, that an earlier appeal was unfairly limited to 50 pages and that the way Virginia conducts lethal injections violates the constitutional right not to be subjected to cruel and unusual punishment. A temporary reprieve request was filed with Gov. Mark R. Warner asking that the execution be delayed long enough for prison officials to change the way lethal injections are performed. The Virginia attorney general's office opposed the appeals, accusing Orbe of delaying tactics and attempting to manipulate the courts. "Virginia's method of lethal injection is virtually identical to all other states which allow lethal injection. This same protocol, or method of carrying out lethal injection, has been upheld as constitutional by at least four courts," the state argued in a brief.

With less than a half hour remaining before his execution, the U.S. Supreme Court turned down Orbe's last request for a stay and Warner rejected the reprieve request. Warner said that "after a thorough review of the petition for reprieve, the facts pertinent to the petition, and the judicial opinions regarding this case, I decline to intervene."

Virginians for Alternatives to the Death Penalty

Dennis Mitchell Orbe was convicted for the January 24, 1998 murder of a convenience store clerk in York County. The store's video security camera showed that Orbe displayed a revolver and shot the clerk, Richard Sterling Burnett, after he opened the cash register drawer. A customer found Burnett's body a short time later and called the police. Orbe was captured several days later, after a high-speed chase in Richmond.

At trial, the Commonwealth convinced the jury of Orbe's guilt and that his past behavior indicated that he would be a future danger to society. This behavior consisted of three separate incidents that took place in the week before the murder. Witnesses testifying in support of Orbe to mitigate his conduct told of his troubled childhood, abuse of alcohol, a radical change in his behavior shortly before the crimes, and his good behavior in jail. A psychologist, also testifying on Orbe's behalf, said that Orbe had exhibited suicidal tendencies, was depressed over his perceived failure as a father, and had an impulse control dysfunction. The psychologist surmised that Orbe's behavior was in part motivated by a desire to reunite with his father who had abandoned him at an early age.

Orbe did not take the stand before the jury recommended the death penalty even though his remorse for the killing might have convinced the jury to prefer life in prison. However, before the judge officially sentenced him, Orbe gave a twenty-five minute long speech in which he apologized for the murder and asked to be sentenced to death. He also claimed that the gun accidently discharged and that he had no intention of killing Burnett. The Commonwealth's Attorney who asked for the sentence admitted after the trial that the killing "didn't have the vileness that a lot of these cases do."

Although his appeal to the Supreme Court of Virginia raised many important constitutional challenges to his conviction and sentence, the court refused to consider many of these on their merits because they were not made in accordance with several of Virginia's highly technical rules for appeals. The court did consider a few claims on their merits, but rejected them all. The first of these claims was that the jury should have been instructed on first degree murder in addition to capital murder. The court disagreed, stating that the capital murder instruction was proper because the videotape of the murder clearly showed that it was committed in the course of a robbery. Incredibly, the court failed to realize that the very language it used ("the video tape clearly established that Burnett was shot in the commission of armed robbery") is almost exactly the language of the first degree murder statute ("murder, other than capital murder...in the commission of...robbery...is murder of the first degree")! In addition, Orbe questioned whether it was proper for the jury to see personal photographs of the victim which had nothing to do with whether Orbe was guilty or not. The jury also was able to consider in its sentencing determination crimes Orbe was alleged to have committed but was never convicted of. Thus Orbe was sentenced to death on the basis of several crimes which the Commonwealth never had the burden of proving beyond a reasonable doubt.

An execution date of March 31, 2004 has been set for Dennis Orbe. Orbe and his lawyers plan to petition the US Supreme Court, arguing that the Commonwealth of Virginia’s 50-page limit on post-conviction petitions makes it impossible for attorneys to present the different arguments necessary for courts to thoroughly review capital cases.

Death Penalty News - Rick Halperin

VIRGINIA (August 16, 1998)

In Yorktown, a jury recommended that Dennis Orbe be put to death for the Jan. 24 murder of Richard Burnett. The jury of 10 women and 2 men, which on Tuesday found Orbe guilty of capital murder, deliberated about 4 1/2 hours before reaching the death penalty recommendation. Orbe's face displayed no emotion. The 34-year-old Chester man stood with his hands clasped loosely behind his back, and, after the jury's decision was read, turned and whispered briefly to defense lawyer Andrew Protogyrou.

Sitting behind him in the gallery, Orbe's mother, Brigitt Branch, quietly lifted her hand to her mouth and looked straight ahead. For a moment, silence blanketed the courtroom that on Wednesday boomed with argument over whether Orbe should die or serve a life prison term for shooting Burnett, 39, during an early morning hold up of the Exxon convenience story in York County, where Burnett worked as a night clerk. A videotape, made by the store's surveillance system and used as evidence in the trial, showed Orbe shooting Burnett in the chest and taking money from the cash register.

Judge Prentis Smiley set formal sentencing for Oct. 23. In addition to the death penalty, the jury recommended a 60-year-sentence for robbery and 2 firearms counts stemming from the incident. Although defense lawyers presented testimony that Orbe deeply regretted having killed Burnett, Orbe never took the stand to testify at either the trial or the sentencing hearing. The defense lawyers Protogyrou and Damian Horne said their client's refusal to testify may have forfeited his chance for a life sentence. "I think remorse would have gone a long way," Protogyrou said. Horne, more bluntly, said that "we wanted him to take the stand and beg for his life."

Protogyrou said that Orbe has said he will make a statement at his sentencing. He said Orbe was reluctant to confront the jury because he didn't trust how his emotions would stand up under cross- examination and because "he's resigned his fate to his maker." The defense lawyers said that Orbe's reaction to the jury's sentence was, "Don't worry about it. Thanks, guys, you did a great job." Orbe's mother, with tears in her eyes, left the courthouse without making any public statement. Cathy P. Linton, the girlfriend who was living with Burnett at the time of the murder, said the sentence pleased her. "This is what I wanted. I believe a life for a life."

Commonwealth's Attorney Eileen M. Addison praised the jury for deciding that death was an appropriate punishment even though she said the murder "didn't have the vileness that a lot of these cases do." The jury recommended the death penalty on the grounds that Orbe would pose a continuing threat to society if allowed to live. "It's a tragic situation all the way around for both families," Addison said, referring to relatives of Orbe and of the man he murdered. "They're all victims." Orbe murdered Burnett during a 10-day crime rampage between Jan. 21 and Jan. 31 that also included assaults, shootings, break-ins and thefts in Richmond and in Chesterfield and New Kent counties. He has already pleaded guilty to crimes in New Kent and Richmond but still faces trial in Chesterfield. In his closing argument yesterday, Protogyrou asked the jury to consider that Orbe did not have an extensive criminal history and that he lashed out only after alcoholism and a failed marriage made his life go "haywire." Addison said in her closing statement that Burnett's killing was "a cold-blooded random act of violence done for absolutely no reason whatsoever....The consequences under our law is death, the ultimate punishment for the ultimate crime."

ABOLISH ARCHIVES

VIRGINIA (March 23, 1998):

In Yorktown, the identifications linking Dennis Orbe to the videotaped slaying of a convenience store clerk came when police showed still images from the video to Orbe's stepfather and mother, an investigator testified yesterday.

After watching the video, York County General District Judge Merlin Renne certified capital murder, robbery and firearms charges against Orbe to teh grand jury that met today. The videotape provided the key evidence at yesterday's preliminary hearing as it has in the investigation of the slaying Jan. 24 in an Exxon convenience store.

Orbe, 33, is accused of killing Richard Burnett, 39, of Gloucester County, during a holdup that was captured by the store's sophisticated video security camera.

Commonwealth's Attorney Eileen Addison said after the hearing that she would ask the grand jury to indict Orbe on an additional charge of using a firearm in teh commission of a robbery. Addison said she will not decide whether to seek the death penalty in the case unti she speaks some more with the victim's relatives, but she predicted winning a conviction will be relatively straightforward, adding that "the whole thins is on tape. It makes it much easier."

One of the 2 lawyers representing Orbe, Andrew Protogyrou, acknowledged after the hearing that it will be "hard to fight a videotape." He added that the police inviestigation, which included distributing the videotape for airing on television newscasts, has made the case so notorious that it will be hard for Orbe to have a fair trial in the area.

And Damian Horne, the other attorney for Orbe, said people who know he is involved in the case have been frequently stopping him on the street and letting him know they are convinced that Orbe "should fry."

Orbe is also facing charges in teh Richmond area and in New Kent County for numerous crimes allegedly committed in a short period before and after the York killing. A judge certified charges of robbery and using a firearm to a Richmond grand jury this month. The charges stemmed from events Jan. 21.

And Orbe is also accused in Chesterfield County of breaking into 2 homes and of shooting a 51-year-old woman in the leg after she and a boyfriend discovered an intruder in a bedroom.

(source: Richmond Times-Dispatch)

Rick Halperin (AI - Texas)

VUAC - Virginians United Against Crime

Victim: Richard Burnett
Murderer: Dennis Orbe
Date/Location of Homicide: January 24, 1998, York County
Aggravating Factor: Robbery
Execution Date: March 31, 2004

"CLERK'S KILLER WILL BE EXECUTED; ORBE ASKS JUDGE FOR DEATH SENTENCE, GOD FOR MERCY," by Patti Rosenberg (Daily Press Newport News, VA October 28, 1998)

Dennis Orbe may have lost the will to live. But he still longs to be understood. He begged Judge Prentis Smiley to sentence him to death Tuesday, saying he hoped it would bring satisfaction to the family of the York convenience store clerk he murdered. The crime at the Exxon convenience store on Route 17 and Fort Eustis Boulevard early Jan. 24 was captured on a surveillance camera that showed the clerk never resisted. But Orbe claimed he wasn't the monster prosecutors portrayed him to be. They described him as a cold-blooded killer, he said, but he hadn't meant to shoot clerk Rick Burnett and would trade places with him now if he could.

"No matter what you think of me, I am a good person. May God have mercy on my soul," he told Smiley. "I didn't mean to kill Mr. Burnett. If it means taking my life to justify the taking of his - take it. You can have it." He didn't ask Smiley for mercy. And Smiley didn't give it.

A jury convicted Orbe of capital murder two months ago and recommended the death penalty. Smiley's decision is the one that counts, however, and he could have reduced the sentence to life.

Smiley set Orbe's execution for March 31, 1999, although Orbe's lawyers said later it would probably take three or four years for the appellate process to run its course. Orbe's mother watched and listened from just a few rows behind her son. Neither reacted. "I expected it," Brigitt Branch said afterward. "He is not the type person they make him out to be," she said. "My son killed somebody, that's true. So who's going to punish the person who's going to kill him?"

The victim's family lives out of state did not attend the hearing. His elderly mother is too ill to travel, and his brother takes care of her. Before Smiley officially handed down the sentence, however, he asked Orbe if there was anything he wanted to say. Dressed in jeans, with his shirt-tail hanging out, Orbe slowly shuffled to the podium in his ankle shackles and spoke for the next 25 minutes.

He apologized frequently - both for his crimes and for his lack of eloquence. For the nine months since his arrest, he said, he'd been thinking about what to say at this moment. He'd planned it but hadn't written it down because he didn't want it to sound scripted, he said. "I don't know what to say now," he said at one point, stopping. "I'm so scared. I'm so scared." After a long, tense silence, Orbe sighed heavily and took up his soliloquy again. "I'm drawing a blank. I had all this worked out what I want to say. This is ...," he said, stopping again. "I'm ashamed to be standing here," he finally continued. "I'm ashamed to be here. I'm ashamed I wasn't able to take my own life. I'm ashamed that I took another man's life," he continued.

According to a psychologist who testified at trial, Orbe's life had been spiraling out of control for months, if not years, before he went on a 10-day crime spree. Abandoned by his biological father, abused by his mother's second husband, his own marriage over, his two children gone, he drank more and more to deaden the pain, lost his job, couldn't pay child support and fell into a deep depression, the psychologist said. Orbe, 34, formerly of Chesterfield, refused to testify during his trial but said Tuesday that he was scared and confused the morning he encountered Burnett. His intentions were to drive up, pump some gas and drive away without paying, he said. But the pumps weren't on.

Even when he decided to rob the store, he didn't plan to hurt the clerk, he said. When he went inside, Burnett looked at him and looked at the gun, Orbe said. He said he cocked the gun and Burnett opened the cash register. Then Burnett looked at him again, Orbe said, and he brought the gun up to chest level.

He said he was surprised when the gun went off and he saw a hole in Burnett's sweater and smoke coming from it. Orbe also apologized to his victims in Chesterfield, Richmond and New Kent, where he was charged with robbing and abducting several people and shooting one of them. "I came into their lives and basically turned them upside down. When they think of me, they hate me. I hate myself, too," he said.

Orbe said he hoped his attorneys would take satisfaction in knowing they did the best job they could. He also hoped his death would bring closure to Burnett's family and that Commonwealth's Attorney Eileen Addision would find victory in his death sentence. Like Orbe's mother, his attorneys weren't surprised by the outcome. Andy Protogyrou said it was practically unheard of for a judge to set aside a jury's recommendation in a death penalty case. He and co-counsel Damian Horne said they wished Orbe hadn't refused to take the stand in his own defense when it might have mattered - in front of the jury. "I think it would have saved his life," Horne said.

Addison disagreed. The jury foreman was in the courtroom for the sentencing hearing, heard Orbe's speech and asked her afterward if he could attend Orbe's execution, she said. Orbe had refused to testify earlier precisely because he wanted to die, his lawyers said. So why speak now? "He felt it was important for people to know who he was," Protogyrou said. "It was his opportunity to say `What I did was really wrong, but I'm not the person I was painted to be.' "

"ORBE GETS ANOTHER 53 YEARS," by Patti Rosenberg (Daily Press Newport News Sept 22, 1998)

A Chesterfield man already facing the death penalty for robbing and murdering a York County convenience store clerk got another 53 years added to his sentence Monday for terrorizing three New Kent cleaning women. Dennis M. Orbe, 34, was heavily guarded and shackled for his sentencing hearing in New Kent Circuit Court.

Sheriff F.W. "Wakie" Howard and four of his officers stood behind him, next to him and near the doors in the courtroom. Orbe's handcuffs appeared to be chained to a thick belt wrapped around his waist and buckled behind him. Neither those restraints nor his ankle shackles were removed during the proceeding. Asked by Judge Tom Hoover if there was anything he wanted to say before sentence was pronounced, Orbe replied quietly, "No, I don't." Those were the only words he spoke during the brief hearing.

Orbe encountered the New Kent victims Jan. 30, at the tail end of a two-week rampage from Richmond to York and back. While on the run, he broke into a house in Quinton, surprised the three cleaning women when they arrived, threatened to kill them, robbed them and forced them into a bedroom closet, which he then nailed shut. Richmond police caught him hours later after Orbe, driving the cleaning women's Ford Taurus, led police on a high-speed chase.

He pleaded guilty in June to burglary, assault and battery, two counts of grand larceny, three counts of robbery, three counts of abduction and three firearm charges in connection with the incident.

A York County jury recommended the death sentence for Orbe last month for the killing of clerk Rick Burnett. The Jan. 24 crime was captured on videotape by the store's surveillance camera, which showed that Burnett was shot even though he put up no resistance to the robbery. Formal sentencing is scheduled for next month.

Orbe is already serving 15 years for a robbery in Richmond and is awaiting sentencing on charges of robbery, abduction and malicious wounding in Chesterfield.

National Coalition to Abolish the Death Penalty

Dennis Orbe - VA - March 31, 2004; 9 PM EST

The state of Virginia is scheduled to execute Dennis Orbe, a white man, Mar. 31 for the 1998 murder of Richard Burnett in Gloucester county. Mr. Burnett was a clerk in a convenience store, and was killed during an alleged 10-day crime spree. Mr. Orbe maintains that he never meant to kill Mr. Burnett, and is deeply remorseful. Mr. Orbe is currently appealing the constitutionality of a Virginia law designed to speed up the litigation process of death-penalty appeals.

A Virginia procedural rule states that defendants may file no more than 50 pages of a post-conviction petition. Under this law, Mr. Orbe’s original 113 page habeas corpus petition was denied, and his lawyers were forced to remove four arguments from this petition, including claims of jury misconduct and ineffectiveness of counsel. “It’s like target shooting with a revolver from which half the bullets have been removed,” says Mr. Orbe’s lawyer, law professor Eric Freedman. “You’d like to take six shots, but you only have three. 50 pages may not be sufficient to save your client’s life.”

Mr. Orbe is said to have shown a radical shift in behavior before his crimes. Family testified to his troubled childhood and alcohol abuse. The defense psychiatrist testified that Mr. Orbe exhibited suicidal tendencies, was depressed over his perceived failure as a father, and had an impulse control disfunction. Mr. Orbe, regarding the murder of Richard Burnett, states “I wish I could trade places with him. I’m sorry that he’s not here with us today, and I had something to do with that. And I will pay, I know I will.”

The state of Virginia must give its defendants, particularly the defendants that are arguing for their lives, ample opportunity to do so. The system is undecidedly imperfect. While Mr. Orbe is not innocent of this crime, many accused are. Racial and class biases in the criminal justice system abound, as do problems with inadequate and poorly trained lawyers. Given these frequencies, defendants have a right to present any and all initial appeals to the state. Please contact Gov. Warner and Virginia legislators and urge them to pass a moratorium on Virginia executions.

TheDeathHouse.Com

Orbe is scheduled for execution March 31 for the murder of a convenience store clerk during a robbery. A security system in the store videotaped the shooting of the clerk, Richard Burnett, on Jan. 24, 1998. Orbe was captured a week later after a high speed car chase in Richmond. However, when he shot and killed the clerk, Orbe, 39, was in the midst of a violent crime spree. His crimes including shooting another robbery victim in the leg and taking three women hostage and nailing them inside a closet.

The robbery and murder that sent Orbe to death row occurred at a York County gas station and convenience store on Jan. 24, 1998 at 3:38 a.m. Orbe went into the store, walked up to the counter and pointed a gun at Burnett. When the clerk opened the cash register, Orbe shot him. As Burnett struggled to remain standing, Orbe walked around the counter and took money from the cash register, court documents stated. The security system in the store videotaped the robbery and shooting. The video was released to the media, with several persons calling police to identify Orbe as the killer. Orbe was finally nabbed on Jan. 31, 1998 following a high speed chase through Richmond. The chase included Orbe driving wildly across a concrete median strip; striking a telephone pole; and driving on the wrong side of the road. After running a road block set up by police, he jumped out of the car and attempted to flee on foot, but was caught. The .357 magnum used to kill the clerk was also found in his possession.

Prior and after the murder or Burnett, Orbe was involved in the shooting of a woman after breaking into her home, a car theft and the robbery and kidnapping of three cleaning women. In one incident, a woman and her boyfriend returned home only to find that Orbe had broken into their home and was hiding in their bedroom. He pointed a gun at the couple when they entered the bedroom and later shot the woman in the leg. The second incident occurred the same day. He stole a car parked in a yard. The third incident involved a break-in at a home. When a cleaning crew came into the house, Orbe confronted them, forcing three women to go into a closet. He then nailed it shut with plywood after robbing the women.

Defense lawyers say Orbe had a troubled childhood and had abused alcohol. A psychologist testified that Orbe had exhibited suicidal tendencies, was depressed over his perceived failure as a father and had an impulse control dysfunction. The psychologist surmised that Orbe's behavior was in part motivated by a desire to reunite with his father who had abandoned him at an early age. Orbe has also claimed that the he did not mean to kill the clerk. He said his gun "accidently" discharged.

Fredericksburg.Com (March 18, 2004)

"Clerk killer executed by lethal injection," by Bill Baskerville. (AP March 31, 2004)

JARRATT, Va. - Dennis M. Orbe was put to death Wednesday night for robbing and murdering a York County convenience store clerk in 1998. Orbe's execution at 9:13 p.m. was the second in Virginia in as many weeks and the 91st since the state resumed executions in 1982 following a 20-year hiatus. Asked if he wanted to make a final statement, Orbe quietly said no.

Orbe was accompanied into the death chamber by his spiritual adviser, a Catholic nun who placed a small wooden cross holding a green plastic Jesus to Orbe's lips before she joined witnesses in the witness booth. Orbe's attorney wept silently on the back row of the witness booth. Among the witnesses were York County Commonwealth's Attorney Eileen M. Addison and Police Lt. F.T. Lyons, the lead investigator in the case. "I thought about his mother and his family," said Addison, who prosecuted Orbe. "But you still hope it gives some kind of closure to the victim's family." Said Lyons: "It was sobering, but it's our criminal justice system at work." He said the execution of Orbe was "morally and biblically just."

The U.S. Supreme Court refused last-minute appeals based on Orbe's argument that lethal injection is cruel and unusual punishment, and Gov. Mark R. Warner declined Orbe's request to delay the execution. Orbe contended he could suffer great pain if a sedative failed to work and he woke up while a drug to stop his heart was being administered. Orbe had said his chances of winning a favorable ruling from the Supreme Court were virtually nil. "Not a chance in hell," he said Monday in a phone interview from the building housing the death chamber at Greensville Correctional Center.

Orbe's crime was captured on the convenience store's surveillance tape, which showed that Rick Burnett put up no resistance as Orbe shot him in the chest with a .357-caliber revolver. On the run during a 10-day crime spree, Orbe said he tried to get gas at the store about 3:30 a.m. on Jan. 24, 1998, but the pump required prepayment before it would operate.

He went into the store and brandished the gun at Burnett. "He saw the gun. I said, 'Give me the ... money. I actually cocked the hammer. I told him again, 'Give me the ... money.' "He hesitates. I figured he might be trying to figure out a way to stop me. I reached out to actually point it directly at him. I was shaking. I was as scared as he was, but when I extended the gun it went off. It happened so quickly I was dumbfounded. I seen the hole in his sweater. I panicked. I got the money and got out of there."

The slaying was part of a crime rampage that included abductions, assaults, robberies and break-ins in Richmond and Chesterfield and New Kent counties.

Richmond Times-Dispatch (March 18, 2004)

"Convenience-store clerk's killer set for lethal injection; Dennis M. Orbe was sentenced to death for the 1998 slaying of a cashier in York County," by Frank Green. (March 31, 2004)

Dennis Mitchell Orbe, scheduled to die by injection tonight: "The gun went off. I didn't mean to kill the man." Barring court intervention, Dennis Mitchell Orbe will die by injection tonight for a capital murder committed in the midst of a violent, 10-day crime rampage.

Orbe, 39, of Chester was sentenced to death for the 1998 slaying of convenience-store clerk Richard Sterling Burnett in York County. He claimed yesterday that the shooting, captured by a videotape monitor, was not intentional.

He had fled Chesterfield County after wounding a woman. In a telephone interview yesterday from the death house at the Greensville Correctional Center, Orbe said he fled to Newport News and had been living in a stolen car for several days before the murder. Early on the morning of Jan. 24, 1998, he realized he needed gasoline. He drove to an Exxon station in York County. He tried to pump the gasoline and realized he had to pay first. "I was out of money," he said. He was cold and in dire need of sleep, he said. "I knew I needed to get some money and get some gas, so I decided to rob the place." He said, "I wanted to scare the man. I had the gun pointed at him." "I told him to give me the money. He eventually opened the cash register. He took one or two steps back. I thought he might be thinking of a way to stop me," he said. "I went to extend my arm out and force him to give me the money."

The gun was cocked, he said. "The gun went off. I didn't mean to kill the man." "I seen the hole in his shirt and sweater and the smoke coming from it and I panicked and I ran around [the counter] and grabbed the money and I left," he said.

Orbe's rampage began Jan. 21, 1998, in Chesterfield County and ended Jan. 31, 1998, in Richmond. It included assaults, shootings, break-ins and thefts in Richmond and in Chesterfield and New Kent counties. "None of it makes sense, even now, six years later," he said.

A request for a temporary reprieve for Orbe was before Gov. Mark R. Warner yesterday. Orbe's lawyers said the request was made to give the Department of Corrections time to change the way it conducts lethal injections. Orbe filed an appeal arguing that the method of lethal injection used in Virginia is inhumane and violates constitutional protections against cruel and unusual punishment. A divided Virginia Supreme Court rejected the appeal yesterday. His lawyers were considering appealing that decision to the U.S. Supreme Court. Another appeal is already pending on his behalf in the U.S. Supreme Court.

Orbe said he opposes capital punishment. "I think selective state murder isn't the right thing to do. Out of hundreds of persons who murder, only a select few are sanctioned to die." But Adalyn Brugger of Richmond, spokeswoman for Virginians United Against Crime, said that in Orbe's case, "we feel the sentence is appropriate. "In order to fit the elements of a capital crime, the crime has to be especially outrageous, and very few crimes actually fit the definition of capital. It has to be premeditated, it has to be carried out in a heinous manner," she said.

"Why else did he carry a gun into a store?" if he did not mean to use it, she asked. "Maybe he did just want to threaten the guy and not use it. But I'm sorry, there is definitely a degree of premeditation when you go into a store with a gun in the first place," Brugger said. Patricia Tuck remembers her encounter with Orbe, and she has little sympathy for his plight. Tuck, 40, of Warsaw was one of three cleaning women Orbe confronted in a house in New Kent County on Jan. 30, 1998. Orbe forced Tuck and her two co-workers into a closet and nailed it shut. He had broken into the home. The three women were trapped for more than five hours before the owner arrived and freed them.

Meanwhile, Orbe had stolen the cleaning women's car. It was wrecked in Richmond the next day when Orbe was captured after a high-speed chase. "I hope he loses his appeal, personally," she said yesterday. "Inhumane? Come on, the stuff he did to everybody else, including myself. Did he think that was humane?" Orbe said yesterday that "what's going to happen is going to happen. Nothing that I can say or do is going to change that. "I want the people to know the thing I did was not intentional and that I'm sorry for it. But I also know that, 'I'm sorry,' isn't good enough. It definitely won't be good enough for Mr. Burnett's family and friends, and it won't be good enough for me. "I'm hoping that people will understand that I'm not a monster. I take full responsibility for what I have done, and I won't shirk that responsibility."

Yesterday, the Virginia Supreme Court rejected his argument that the way the state conducts lethal injections violates Orbe's constitutional right not to be subjected to cruel and unusual punishment. The court found he waived his right to make such a challenge because he chose lethal injection over electrocution, by default. Condemned inmates in Virginia must decide within 15 days of execution whether they want to die by injection or electric chair. If they refuse to make a choice, the default method is lethal injection. Orbe chose not to make the choice, the justices said in their ruling.

Justices Elizabeth B. Lacy and Lawrence L. Koontz Jr. dissented. They argued that because Orbe failed to make a choice, it cannot be deemed that Orbe has, therefore, chosen lethal injection.

Hampton Roads Daily Express (March 18, 2004)

"Inmate seeks to delay execution; Attorneys for a man condemned to die tonight argue that the state's method of lethal injection isn't fit for a dog, let alone a man, by Patti Rosenberg. (March 31, 2004)

YORK - With only about 30 hours left until Dennis Orbe is scheduled to be put to death, his attorneys were still trying Tuesday to at least buy him more time. He is supposed to receive a lethal injection at 9 tonight in the death chamber at Greensville Correctional Center. Orbe, 39, of Chesterfield County, murdered a York County convenience store clerk during a robbery on Jan. 24, 1998. Orbe maintains that the gun went off by mistake. The victim was shot once in the chest.

Orbe's attorneys asked the governor's office Tuesday to delay the execution until the Virginia Department of Corrections develops a more humane method of carrying out the sentence. They say the combination of chemicals Virginia uses for lethal injection has been banned as inhumane for animal euthanasia. "Mr. Orbe accepts the inevitability of his execution and seeks only to have it conducted without needless brutality," according to the petition to the governor. "He stresses that he is not asking the governor to commute his conviction or his sentence. He only asks that the governor exercise his authority to prevent the Department of Corrections from imposing a lethal injection protocol that is recognized in the Commonwealth and throughout the country as unfit for a dog," the petition says.

Orbe raised the same argument in appeals to the U.S. Supreme Court and the Virginia Supreme Court last week. The Virginia Supreme Court denied his appeal Tuesday afternoon and the U.S. Supreme Court had not responded late Tuesday. A spokeswoman for the governor said he would not make a decision until Orbe has exhausted all his possible remedies through the courts.

Meanwhile, other potential legal avenues were still being explored, said one of Orbe's attorneys, Robert Jenkins of Bynum & Jenkins in Alexandria. He said additional appeals might be filed today. Orbe's attorneys say that in carrying out lethal injections, the state uses a short-acting sedating drug, followed by a neuromuscular blocking agent and finally a drug that causes death by stopping the heart.

The third chemical "affects the nerve fibers lining the prisoner's veins and is extraordinarily painful to a prisoner who is conscious," Orbe's attorneys argue. They say it might be possible for a condemned man to regain consciousness because the sedating drug is so short acting. The second drug paralyzes the muscles but doesn't prevent consciousness or perception of pain, meaning that the person could be suffering but look tranquil and have no way of communicating that he was conscious, the attorneys say.

Death row inmates in Virginia are asked to choose between lethal injection and the electric chair at least 15 days before their execution date. If they decline to choose, as Orbe did, the state chooses lethal injection. Orbe could not, at this point, choose the electric chair unless the governor ordered that for him, said Larry Traylor, a spokesman for the Department of Corrections.

"When a condemned prisoner has a choice of method of execution, the inmate may not choose a method and then complain of its unconstitutionality," the Virginia Supreme Court said in its denial of Orbe's appeal. "Orbe could have chosen electrocution or he could have chosen lethal injection. Instead, he chose to allow the statutory default provisions to apply. The Commonwealth did not make his choice. The Commonwealth only provided the choices for him, including the choice of allowing the default provisions to apply. Orbe has waived any right he may have to complain about lethal injection as it is administered in Virginia," the court found.

Two justices dissented from that opinion, saying that Orbe shouldn't be considered to have made a choice by declining to choose, let alone be considered to have waived his right to challenge the constitutionality of that method of execution.

Orbe v. Commonwealth, 519 S.E.2d 808 (Va. 1999) (Direct Appeal).

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).

State prisoner whose death sentence upon capital murder conviction, affirmed at 258 Va. 390, 519 S.E.2d 808, was stayed to allow him opportunity to file habeas corpus petition filed two prepetition motions, seeking an order preserving all evidence relating to his conviction and sentence, and seeking leave to depose jurors at guilt-phase of murder trial. The District Court, Ellis, J., held that: (1) preservation order was not mandated by Constitution or Virginia law; (2) preservation order was not necessary to ensure proper administration of justice; (3) petitioner was not entitled to conduct prepetition discovery; and (4) even if such discovery were allowed, petitioner failed to show good cause to warrant leave to depose jurors. Motions denied.

Orbe v. True, 233 F.Supp.2d 749 (E.D.Va. 2002) (Habeas).

Defendant convicted of murder and sentenced to death, 258 Va. 390, 519 S.E.2d 808, petitioned for writ of habeas corpus. On government's motion to dismiss, the District Court, Ellis, J., held that: (1) petitioner was barred from raising procedurally defaulted claims absent showing of cause; (2) petitioner was not deprived of effective assistance of counsel; and (3) state post-conviction court's refusal to appoint second mental health expert did not violate indigent petitioner's equal protection rights. Motion granted.

Orbe v. True, 82 Fed.Appx. 802 (4th Cir. 2003) (Habeas).

Background: Following state capital murder, robbery, and firearm convictions, 258 Va. 390, 519 S.E.2d 808, inmate petitioned for federal habeas relief. The United States District Court for the Eastern District of Virginia, T. S. Ellis, III, J., 233 F.Supp.2d 749, dismissed the petition. Inmate appealed.

Holdings: The Court of Appeals held that:
(1) inmate failed to demonstrate that his counsel was ineffective as required to establish cause for his procedural default of habeas review;
(2) prosecutor's decision to charge white defendant with capital murder was not racially discriminatory;
(3) trial court properly excused venireperson who would have had "problem" serving in death penalty case;
(4) defendant's counsel adequately investigated and presented evidence regarding abuse defendant suffered as a child;
(5) even if expert's diagnosis of defendant's mental problems was flawed, counsel did not act unreasonably in relying on it; and
(6) counsel was not ineffective for failing to present medical record of defendant's claim that he had been suicidal.

Affirmed.