Present: All the Justices
DARYL RENARD ATKINS
v. Record No. 000395 OPINION BY JUSTICE CYNTHIA D. KINSER
September 15, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF YORK COUNTY
N. Prentis Smiley, Jr., Judge
Daryl Renard Atkins was convicted in the Circuit Court
of York County of the 1996 capital murder of Eric Michael
Nesbitt and sentenced to death. On appeal, we affirmed his
conviction, Atkins v. Commonwealth, 257 Va. 160, 180, 510
S.E.2d 445, 457 (1999), but remanded the case to the
circuit court for a new penalty proceeding due to an
improper jury sentencing verdict form, id. at 177-79, 510
S.E.2d at 456-57. 1 At resentencing, a different jury found
that there is a probability that Atkins would commit acts
of violence in the future that would constitute a
continuing serious threat to society, and that his conduct
in committing the capital murder was “outrageously or
wantonly vile, horrible or inhuman in that it involved
torture, depravity of mind, or aggravated battery to the
victim beyond the minimum necessary to accomplish the act
1
Atkins was also convicted of abduction, robbery, and
use of a firearm while committing those offenses. In his
first appeal, he did not challenge these convictions.
Atkins, 257 Va. at 163 n.1, 510 S.E.2d at 447 n.l.
of murder.” The jury fixed Atkins’ punishment at death.
At a separate sentencing hearing, the circuit court imposed
the death penalty in accordance with the jury verdict.
Atkins now appeals that sentence.
Atkins assigns eight errors on appeal. After
considering those issues and conducting our mandated review
pursuant to Code § 17.1-313(C), we find no error in the
judgment of the circuit court and will affirm the
imposition of the death penalty. 2
I. ISSUES REGARDING MITIGATION
In three related assignments of error, Atkins raises
the question whether the circuit court improperly inhibited
the jury’s consideration of mitigating evidence. First, he
asserts that Virginia’s bifurcated jury system, as applied
when a case is remanded for a new sentencing hearing before
a different jury, unconstitutionally limits a defendant’s
ability to present relevant evidence from the guilt phase
of the previous trial. Second, Atkins claims that the
circuit court erred in limiting his examination of
Frederick T. Lyons, an investigator with the York County
2
We recited the evidence in the record in our prior
decision, Atkins, 257 Va. at 165-69, 510 S.E.2d at 449-51.
We need not repeat that evidence here, except to the extent
necessary as part of our analysis of Atkins’ assignments of
error in this appeal.
2
sheriff’s office, thereby denying Atkins the opportunity to
present a complete defense, including mitigating evidence,
at his new sentencing hearing. Finally, Atkins argues that
the circuit court erred in refusing to instruct the jury
about mitigating factors. We find no merit to these
claims.
Initially, to the extent that Atkins contends that
Virginia’s bifurcated jury system is constitutionally
defective because he could not, at his resentencing,
present evidence and argue “residual doubt” with regard to
his guilt in the commission of the crime, that contention
has been previously addressed and rejected by this Court. 3
See Stockton v. Commonwealth, 241 Va. 192, 210-11, 402
S.E.2d 196, 206-07, cert. denied, 502 U.S. 902 (1991)
(defendant not allowed to introduce evidence and argue
“residual doubt” at new sentencing hearing); Frye v.
Commonwealth, 231 Va. 370, 393, 345 S.E.2d 267, 283 (1986)
(defendant cannot contest correctness of guilty verdict at
3
In addition, the Commonwealth filed a motion in
limine to prohibit Atkins from presenting evidence or
argument with regard to any factual issue concerning his
guilt. The circuit court granted the motion, and ordered
Atkins and his counsel “to refrain from any attempt, during
the resentencing proceeding, to inquire into, comment upon
or argue any factual issue relative to [Atkins’] guilt.”
Atkins has not assigned error to the circuit court’s order
granting the motion in limine. See Rule 5:17.
3
sentencing phase); see also Franklin v. Lynaugh, 487 U.S.
164, 173 (1988) (defendant is not entitled to jury
instruction on “residual doubt”). We find no reason to
depart from our precedent. 4
However, Atkins contends that the evidence he sought
to introduce through the testimony of Lyons was not offered
for the purpose of creating “residual doubt” about his
guilt. Specifically, during direct examination, Atkins’
counsel asked Lyons, “[A]fter you advised [Atkins] of [his
Miranda] rights, did [Atkins] confess to you his
involvement in the murder of Eric Nesbitt?” According to
Atkins, the information that he sought to elicit by that
question was the fact that he had admitted his
participation in the murder of Nesbitt. Atkins argues that
such information was relevant to the issues of Atkins’
remorse and his cooperation with law enforcement
authorities, both of which are proper subjects of
mitigating evidence.
4
That precedent does not mean that a defendant can
never present evidence from the guilt phase of a trial at a
subsequent resentencing hearing. Depending on the facts of
each case, certain guilt-phase evidence may also be
relevant to issues at resentencing, especially if the
vileness predicate is at issue. Even when such evidence is
relevant, a defendant still cannot argue or present
evidence concerning “residual doubt.” Stockton, 241 Va. at
210-11, 402 S.E.2d at 206-07.
4
The Commonwealth objected to the question, contending
that it called for a hearsay statement. The Commonwealth
also noted that, while Atkins confessed to Lyons his
involvement in the abduction, robbery, and murder of
Nesbitt, Atkins denied that he was guilty of capital
murder. In the confession to Lyons, Atkins maintained that
his accomplice alone was the “triggerman.” Thus, according
to the Commonwealth, for Lyons to appropriately answer the
propounded question, he would have to tell the jury that
Atkins denied that he pulled the trigger, which would have
been contrary to the circuit court’s prior ruling that
evidence regarding Atkins’ guilt would not be admitted at
the resentencing hearing.
The circuit court sustained the Commonwealth’s
objection on the basis that the testimony being elicited
from Lyons was hearsay. 5 We agree.
5
Atkins’ counsel proffered to the court that Lyons
would also testify that Atkins admitted his involvement in
certain crimes committed in the City of Hampton. The
orders showing Atkins’ convictions for those crimes had
already been introduced into evidence and, as noted by the
Commonwealth, reflected whether Atkins had pled guilty to
those crimes. The circuit court sustained the
Commonwealth’s objection to this additional evidence also
on the basis that it was hearsay.
After the court sustained the Commonwealth’s
objections, Atkins’ counsel did not ask Lyons any
additional questions and advised the court that Lyons was
no longer needed as a witness.
5
In Atkins’ initial appeal to this Court, we considered
this same evidence and held that no exception to the
hearsay rule applied which would allow Lyons to testify
about the content of Atkins’ statement to him. Atkins, 257
Va. at 176, 510 S.E.2d at 455. The proffer of this
evidence at the resentencing hearing does not change the
hearsay analysis. According to Code § 19.2-264.4(B),
mitigating evidence relevant to sentencing is “subject to
the rules of evidence governing admissibility.” See
Cherrix v. Commonwealth, 257 Va. 292, 309, 513 S.E.2d 642,
653, cert. denied, ___ U.S. ___, 120 S.Ct. 177 (1999)
(subject to rules of evidence governing admissibility,
trial court has discretion under Code § 19.2-264.4(B) to
determine what evidence may be adduced in mitigation of
offense); Coppola v. Commonwealth, 220 Va. 243, 253, 257
S.E.2d 797, 804 (1979), cert. denied, 444 U.S. 1103 (1980)
(same); but see O’Dell v. Commonwealth, 234 Va. 672, 701-
02, 364 S.E.2d 491, 508, cert. denied, 488 U.S. 871 (1988)
(holding that hearsay evidence contained in postsentence
report is admissible based on language of Code §§ 19.2-
264.5 and -299).
In any event, we believe that the information that
Atkins sought to elicit from Lyons improperly would have
interjected at the new sentencing hearing a question about
6
Atkins’ guilt. In that statement to Lyons, Atkins denied
that he was the “triggerman” and accused his accomplice of
shooting Nesbitt. Atkins, 257 Va. at 175, 510 S.E.2d at
455. As we previously stated, a defendant is not allowed
to argue or present evidence of “residual doubt” at a new
sentencing hearing. Stockton, 241 Va. at 211, 402 S.E.2d
at 207.
Finally, Atkins contends that the circuit court erred
by denying certain proposed instructions on the mitigation
factors contained in Code § 19.2-264.4. 6 Specifically,
Atkins requested the court to instruct the jury that it may
consider, in mitigation, Atkins’ age at the time of the
offense, his mental retardation, and any other evidence
that would tend to favor a sentence of life imprisonment.
However, the record before us shows that Atkins withdrew
the requested instruction. Regardless, this Court has
consistently held that defendants being sentenced for
capital murder are not entitled to jury instructions that
list the specific types of mitigating factors a jury may
consider. George v. Commonwealth, 242 Va. 264, 283, 411
S.E.2d 12, 23 (1991), cert. denied, 503 U.S. 973 (1992);
6
Instead, the circuit court instructed the jury that
it should consider any evidence presented in mitigation of
the offense that tended to make life imprisonment without
7
Eaton v. Commonwealth, 240 Va. 236, 257, 397 S.E.2d 385,
398 (1990), cert. denied, 502 U.S. 824 (1991); Gray v.
Commonwealth, 233 Va. 313, 351, 356 S.E.2d 157, 178, cert.
denied, 484 U.S. 873 (1987). We will not depart from our
prior decisions today.
II. ISSUES REGARDING THE JURY
Atkins raises two issues with regard to the
composition and selection of the jury. He first contends
that the circuit court erred in denying his motion to
strike the entire venire because it did not accurately
represent the demographic make-up of the population of York
County. Second, he challenges the Commonwealth’s use of
one of its peremptory strikes.
With regard to the first issue, Atkins argued at trial
that the venire, which contained only three Black members,
did not represent a fair cross-section of the community.
According to Atkins’ counsel, York County’s population is
30 percent Black. In denying Atkins’ motion, the circuit
court noted that the venire had been randomly selected.
Systematic exclusion of a “distinctive group in the
community” must be shown in order to establish that a
defendant’s constitutional right to a fair jury selection
___________________
the possibility of parole a more appropriate punishment
than death.
8
system has been violated. Chichester v. Commonwealth, 248
Va. 311, 324, 448 S.E.2d 638, 647 (1994), cert. denied, 513
U.S. 1166 (1995). Atkins does not contend that there was
such exclusion, nor does the record in this case suggest
any systematic exclusion of Black members of the community
from the venire. Thus, we find no merit in Atkins’ claim.
On the second issue, Atkins contends that the
Commonwealth’s exercise of a peremptory strike to remove
the only remaining Black juror violated the rule
established in Batson v. Kentucky, 476 U.S. 79 (1986),
holding that peremptory strikes based solely upon a juror’s
race violate the Equal Protection Clause. In deciding
whether a peremptory strike is racially motivated in
violation of Batson, a trial court “must consider the basis
of the challenge[], the reasons proffered for the strike[],
and any argument presented that such reasons, even if race-
neutral, are pretextual, to determine whether the
challenger has met [the] burden of proving purposeful
discrimination in the selection of a jury panel.” Chandler
v. Commonwealth, 249 Va. 270, 277, 455 S.E.2d 219, 223,
cert. denied, 516 U.S. 889 (1995). We will reverse a trial
court’s findings that there was no purposeful
discrimination in the striking of a juror and that the
9
reasons proffered by the Commonwealth were racially neutral
only where such findings are clearly erroneous. Id.
The juror in question testified that he took
medication for a thyroid condition and that the medication
caused him to feel “bombed out” and “drowsy” at times.
Because of the juror’s medical condition, the Commonwealth
expressed concern about the juror’s ability to pay close
attention to the evidence. The circuit court determined
that the Commonwealth had proffered a sufficiently race-
neutral reason to strike the juror, and we conclude that
this finding was not clearly erroneous. See Stockton, 241
Va. at 209, 402 S.E.2d at 205-206 (concern about juror’s
attentiveness was race-neutral reason for striking juror).
III. MOTION TO STRIKE COMMONWEALTH’S EVIDENCE
Next, Atkins asserts that the circuit court should
have granted his motion to strike the Commonwealth’s
evidence at the new sentencing hearing because that
evidence was insufficient to prove either the future
dangerousness or the vileness aggravating factor. Atkins
makes no argument on this assignment of error beyond this
mere assertion. Upon reviewing the record, we find
evidence sufficient to prove beyond a reasonable doubt both
Atkins’ future dangerousness and the vileness of his crime.
10
To establish the future dangerousness predicate for
imposition of the death penalty, the factfinder may
consider a defendant’s past criminal record, a defendant’s
prior history, the circumstances surrounding the commission
of the offense under consideration, and the heinousness of
the crime. Edmonds v. Commonwealth, 229 Va. 303, 312, 329
S.E.2d 807, 813, cert. denied, 474 U.S. 975 (1985). In the
present case, the Commonwealth presented evidence showing
that Atkins had at least 18 prior felony convictions for
such crimes as attempted robbery, robbery, abduction,
breaking and entering with the intent to commit larceny,
grand larceny, maiming, and use of a firearm. In addition,
the jury not only heard the details of several robberies
that Atkins committed, including one in which Atkins hit a
victim over the head with a bottle, but also learned about
an incident during which he shot a woman in the stomach
without provocation. Thus, we conclude that there was
sufficient evidence to support the jury’s finding of
Atkins’ future dangerousness.
With respect to the vileness predicate, Code §§ 19.2-
264.2 and –264.4(C) define vileness as conduct that “was
outrageously or wantonly vile, horrible or inhuman”
involving “torture, depravity of mind or an aggravated
battery to the victim.” Proof of either torture, depravity
11
of mind, or an aggravated battery is sufficient to support
a finding of vileness. Bunch v. Commonwealth, 225 Va. 423,
442, 304 S.E.2d 271, 282, cert. denied, 464 U.S. 977
(1983).
Based on testimony from the assistant chief medical
examiner who autopsied Nesbitt’s body, the jury learned
that Atkins shot Nesbitt eight times. Three of the
gunshots caused mortal wounds. One of those gunshots
penetrated the left chest cavity and perforated both lungs
and the heart; the second one, to the left lateral back,
perforated the right lung and aorta; and the third fatal
shot perforated the arm, re-entered the abdomen, and
perforated the iliac artery. However, none of the fatal
shots was immediately lethal; they would not have caused
immediate unconsciousness or paralysis; and Nesbitt may
have survived several minutes before dying from internal
bleeding. Nesbitt also sustained several scrapes or
abrasions, including a large linear abrasion on his right
forehead.
This Court has defined the term “aggravated battery”
used in Code §§ 19.2-264.2 and –264.4(C) to mean “‘a
battery which, qualitatively and quantitatively, is more
culpable than the minimum necessary to accomplish an act of
murder.’” Goins v. Commonwealth, 251 Va. 442, 468, 470
12
S.E.2d 114, 131, cert. denied, 519 U.S. 887 (1996) (quoting
Smith v. Commonwealth, 219 Va. 455, 478, 248 S.E.2d 135,
149 (1978), cert. denied, 441 U.S. 967 (1979)). Thus, we
find sufficient evidence to support the jury’s finding that
Atkins’ murder of Nesbitt was “outrageously or wantonly
vile.” Code §§ 19.2-264.2 and –264.4(C).
IV. PREJUDICE AND PROPORTIONALITY REVIEW
Whenever a sentence of death is imposed, this Court is
required to determine whether that sentence “was imposed
under the influence of passion, prejudice or any other
arbitrary factor; and [w]hether the sentence of death is
excessive or disproportionate to the penalty imposed in
similar cases, considering both the crime and the
defendant.” Code § 17.1-313(C). With regard to these two
questions, both assigned as errors by Atkins, we initially
note that Atkins has presented no argument that his
sentence of death was influenced by passion, prejudice or
any other arbitrary factor, nor has our review of the
record revealed any such improper influence.
With respect to the proportionality question, Atkins
does not argue that his death sentence is disproportionate
to the penalties imposed for crimes similar to the one he
perpetrated, namely premeditated murder with a firearm in
the commission of a robbery, where the death penalty was
13
imposed on the basis of both the future dangerousness and
vileness predicates. Nor, given our previous cases, could
he do so convincingly because juries in this Commonwealth
regularly impose the death penalty for capital murders
comparable to the one at issue in this case. 7 See Graham v.
Commonwealth, 250 Va. 79, 80, 81 and n.*, 83, 89, 459
S.E.2d 97, 97 and n.*, 98-99, 102, cert. denied, 516 U.S.
997 (1995) (death sentence imposed for murder in commission
of robbery based on both vileness and future dangerousness
predicates; defendant had 14 prior convictions; victim shot
while lying in parking lot); Strickler v. Commonwealth, 241
Va. 482, 487-88, 496-98, 404 S.E.2d 227, 231, 236-37, cert.
denied, 502 U.S. 944 (1991) (death sentence imposed upon
findings of vileness and future dangerousness where
defendant with eight felony convictions took victim to
deserted field and killed her; death was not
instantaneous); Gray, 233 Va. at 341, 352-54, 356 S.E.2d at
172-73, 179-80 (defendant with at least 13 prior felony
7
Pursuant to Code § 17.1-313(E), we have accumulated
the records of all capital murder cases reviewed by this
Court. Those records include not only cases in which the
death penalty was imposed, but also those in which a life
sentence was imposed and the defendant appealed to this
Court. Orbe v. Commonwealth, 258 Va. 390, 404, 519 S.E.2d
808, 816 (1999), cert. denied, ___ U.S. ___, 120 S.Ct. 1970
(2000) (citing Whitley v. Commonwealth, 223 Va. 66, 82, 286
S.E.2d 162, 171, cert. denied, 459 U.S. 882 (1982)).
14
convictions sentenced to die based on future dangerousness
and vileness after forcing victim into his car, taking
victim’s wallet and robbing victim’s store, and then
driving to secluded area where defendant shot victim six
times after assuring victim that he would not be harmed);
Edmonds, 229 Va. at 304, 307, 312-14, 329 S.E.2d at 809-10,
813-15 (during robbery, victim sustained multiple wounds
including stab wound to neck; defendant had 3 felony and 13
misdemeanor convictions; death sentence imposed based on
findings of vileness and future dangerousness); Briley v.
Commonwealth, 221 Va. 563, 566-68, 578, 580-81, 273 S.E.2d
57, 58-60, 66-68 (1980) (defendant convicted of capital
murder in commission of robbery and sentenced to death
based on findings of vileness and future dangerousness;
victim forced to lie on floor during rape of victim’s
mother and murder of both parents prior to victim’s death
by gunshot; defendant had numerous criminal convictions
including armed robbery and attempted murder).
Focusing on the statutory directive that this Court’s
proportionality review take into account not only the crime
but also the defendant, see Code § 17.1-313(C), Atkins,
however, does assert that he is mentally retarded and thus
cannot be sentenced to death. He bases his argument upon
his purported full scale IQ of 59 and contends that the
15
death penalty has not been imposed on any defendant in this
Commonwealth with an IQ score as low as his. In response,
the Commonwealth points out that the evidence was in
conflict regarding the question whether Atkins is mentally
retarded. Quoting from Penry v. Lynaugh, 492 U.S. 302
(1989), the Commonwealth also contends that execution of a
defendant who is mentally retarded does not contravene the
practices that were condemned when the Bill of Rights was
adopted or the evolving standards of decency.
Atkins’ full scale IQ score was based on a test known
as the Wechsler Adult Intelligence Scale-III (WAIS-III),
which was administered to him by a forensic clinical
psychologist, Dr. Evan Stuart Nelson. 8 According to Dr.
Nelson, Atkins’ full scale IQ of 59 means that Atkins is
mildly mentally retarded. See American Psychiatric
Association, Diagnostic and Statistical Manual of Mental
Disorders, Fourth Edition (DSM-IV) 40 (1994). However, Dr.
Nelson also acknowledged that Atkins might have scored two
or three points higher if he had not been mildly depressed
when Dr. Nelson administered the test.
Dr. Nelson further explained that a diagnosis of
mental retardation is not simply a question of an IQ score.
8
On the same test, Atkins also had a verbal IQ score
of 64 and a performance IQ score of 60.
16
Mental retardation also involves the inability to function
independently as compared to the norm for persons of the
same age. Consequently, a diagnosis of mental retardation
is based on an individual’s IQ scores along with that
person’s ability to function in the world. Finally,
despite his opinion that Atkins is mildly mentally
retarded, Dr. Nelson admitted that Atkins’ capacity to
appreciate the criminal nature of his conduct was impaired,
but not destroyed; that Atkins understood that it was wrong
to shoot Nesbitt; and that Atkins meets the general
criteria for the diagnosis of an antisocial personality
disorder.
In addition to Dr. Nelson’s testimony, the jury heard
testimony from Dr. Stanton E. Samenow, a forensic clinical
psychologist called as a witness by the Commonwealth.
Based on two interviews with Atkins, Dr. Samenow “sharply
disagree[d]” with Dr. Nelson’s conclusion that Atkins is
mildly mentally retarded. Instead, Dr. Samenow testified
that Atkins is of at least average intelligence. Dr.
Samenow based his conclusion on Atkins’ vocabulary,
knowledge of current events, and other factors from the
Wechsler Memory Scale, Wechsler Adult Intelligence Scale
and Thematic Apperception Test. For example, Atkins knew
that John F. Kennedy was the president in 1961. He also
17
correctly identified the last two presidents, as well as
Virginia’s current governor. Dr. Samenow further explained
that Atkins used “sophisticated words” such as “orchestra,”
“decimal,” and “parable;” that Atkins could recall
information Dr. Samenow asked him to remember; and that
Atkins could put together a story involving cause and
effect.
Dr. Samenow also reviewed Atkins’ academic records and
noted that, while Atkins had passed the Literacy Passport
Test, his academic performance had been terrible and that
his school records were “punctuated with statements” by
teachers about Atkins’ lack of motivation and
concentration, his poor study habits, and his ability to do
better in school. Finally, Dr. Samenow, like Dr. Nelson,
opined that Atkins was able to appreciate the criminality
of his conduct and to conform his behavior to the
requirements of the law, and that Atkins satisfies most of
the criteria for the diagnosis of an antisocial personality
disorder.
The Supreme Court of the United States has ruled that
imposition of the death penalty on a mentally retarded
defendant with the approximate reasoning capacity of a
seven-year-old child does not violate the Eighth Amendment
prohibition against cruel and unusual punishment solely
18
because of the defendant’s mental retardation. Penry, 492
U.S. at 336, 340. In that case, the Court recognized that
the abilities and experiences of mentally retarded
individuals vary. Thus, the Court was unwilling to
conclude that all mentally retarded people, “by virtue of
their mental retardation alone, and apart from any
individualized consideration of their personal
responsibility[,] inevitably lack the cognitive,
volitional, and moral capacity to act with the degree of
culpability associated with the death penalty.” Id. at
338. The Court also refused to rely on the concept of
“mental age,” noting that it is problematic in several
respects and that courts have generally been reluctant to
use it as a basis for excusing a defendant from criminal
responsibility. Id. at 339. However, the Court did state
that a “sentencing body must be allowed to consider mental
retardation as a mitigating circumstance in making the
individualized determination whether death is the
appropriate punishment in a particular case.” Id. at 337-
38.
In Virginia, the mental retardation of a defendant is
one of the factors that may be considered in mitigation of
capital murder. Code § 19.2-264.4(B). Accordingly, the
jury in the present case heard extensive, but conflicting,
19
testimony from Dr. Nelson and Dr. Samenow regarding Atkins’
mental retardation. As in any case, it was the
responsibility of the jury to assess the credibility of the
witnesses and to determine the weight to be afforded to
specific evidence. Yarbrough v. Commonwealth, 258 Va. 347,
364, 519 S.E.2d 602, 610 (1999). The jury was instructed
in the present case to consider any evidence in mitigation
of the offense, and the jury obviously found that Atkins’
IQ score did not mitigate his culpability for the murder of
Nesbitt. See Yeatts v. Commonwealth, 242 Va. 121, 145, 410
S.E.2d 254, 268 (1991), cert. denied, 503 U.S. 946
(1992)(jury found defendant’s mild mental retardation,
based on full scale IQ of 70, did not mitigate capital
murder offense, and this Court perceived no reason on
appeal to disturb that finding). The question of Atkins’
mental retardation is a factual one, and as such, it is the
function of the factfinder, not this Court, to determine
the weight that should be accorded to expert testimony on
that issue. Saunders v. Commonwealth, 242 Va. 107, 115,
406 S.E.2d 39, 43, cert. denied, 502 U.S. 944 (1991).
In conducting the mandated proportionality review and
examining the records accumulated pursuant to Code § 17.1-
313(E), we do not find a capital murder case in which
testimony indicated that a defendant had a full scale IQ as
20
low as 59. 9 Because Atkins asserts that he cannot be
sentenced to death due to his alleged mental retardation,
we must consider, as part of our proportionality review,
the same evidence heard by the jury regarding Atkins’
mental capacity. In examining that evidence, we find it
significant that both Dr. Nelson and Dr. Samenow agreed
that a diagnosis of mental retardation involves more than
merely determining a person’s IQ score; it also requires
consideration of an individual’s adaptive functioning. 10
With regard to the issue of adaptive functioning, Dr.
Nelson testified that, in determining an individual’s
9
In Mackall v. Commonwealth, 236 Va. 240, 256, 372
S.E.2d 759, 769 (1988), cert. denied, 492 U.S. 925 (1989),
we upheld a sentence of death for a defendant with an IQ of
64 who was convicted of capital murder committed during a
robbery. See also Correll v. Commonwealth, 232 Va. 454,
467, 352 S.E.2d 352, 359 (1987)(death penalty upheld for
defendant who scored 68 on IQ test).
In Freeman v. Commonwealth, No. 830920 (Va. Jan. 25,
1984), this Court examined the capital murder conviction of
a defendant with a full scale IQ of 61. We denied that
defendant’s petition for appeal, in which the only assigned
error was the failure of the trial court to allow him to
withdraw his guilty plea. That defendant argued on brief
that his “limited intelligence” and “fear” caused him to
plead guilty.
10
According to the DSM-IV, “[t]he essential feature of
Mental Retardation is significantly subaverage general
intellectual functioning . . . that is accompanied by
significant limitations in adaptive functioning in at least
two of the following skill areas: communication, self-care,
home living, social/interpersonal skills, use of community
resources, self-direction, functional academic skills,
work, leisure, health, and safety . . . .” DSM-IV at 39.
21
ability to function independently, it was necessary to talk
with family members, and to review school and employment
records. He further stated that he had followed through on
that inquiry by reviewing Atkins’ academic records and
talking to Atkins’ parents. As a result of the inquiry,
Dr. Nelson reported that Atkins had received poor grades,
failed many tests and classes, and was placed in remedial
academic courses on a number of occasions. He also stated
that Atkins’ parents described a number of deficits, but
Dr. Nelson never elaborated on the nature of those
deficits. In other words, Dr. Nelson never identified an
area of significant limitation in Atkins’ adaptive
functioning other than what he termed Atkins’ “academic
failure.” 11
In contrast, Dr. Samenow provided the following
explanation when asked whether Atkins has any impairment in
his adaptive functioning:
Well, Mr. Atkins never lived independently. In
other words, he was not a self-supporting member of
society. However, he told me he was able to wash his
clothes, wash and dry his clothes, he used his
___________________
11
The dissent acknowledges that a diagnosis of mental
retardation requires not only a finding of subaverage
intellectual functioning but also limitations in two or
more adaptive skill areas. However, the dissent is
likewise unable to point to any finding by Dr. Nelson
regarding deficits in Atkins’ adaptive functioning other
than his poor academic performance.
22
parents’ washing machine and dryer. He told me — when
I asked him if he was able to cook, he gave me his
recipe for cooking chicken.
This Defendant, . . . as I understand it, lived a
life in which he didn’t work, and I don’t mean just
didn’t hold a job, that he didn’t do, but then again
there are a lot of 18-year-olds who maybe haven’t
worked because they’ve been in school. But he didn't
work in school either.
So the point is he chose a certain — to live a
certain way of life, and there was no lack of ability
to adapt and to take care of basic needs, certainly.
Thus, considering “both the crime and the defendant,” Code
§ 17.1-313(C), and the record before us, we cannot say that
Atkins’ sentence of death is excessive or disproportionate
to sentences generally imposed in this Commonwealth for
capital murders comparable to Atkins’ murder of Nesbitt.
We are not willing to commute Atkins’ sentence of death to
life imprisonment merely because of his IQ score. Dr.
Nelson and Dr. Samenow agreed that an IQ score is not the
sole definitive measure of mental retardation. Both
experts also testified that Atkins was able to appreciate
the criminality of his conduct and understood that it was
wrong to shoot Nesbitt.
Accordingly, we perceive no reason to commute Atkins’
sentence of death and will affirm the judgment of the
circuit court.
Affirmed.
23
JUSTICE HASSELL, with whom JUSTICE KOONTZ joins, concurring
in part and dissenting in part.
I.
Code § 17.1-313, which requires that this Court review
a sentence of death, states in relevant part that we must
consider "[w]hether the sentence of death is excessive or
disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant." I dissent
because I believe that the imposition of the sentence of
death upon a mentally retarded defendant with an IQ of 59
is excessive and disproportionate to the penalty imposed in
similar cases, considering both the crime and the
defendant.
II.
Dr. Evan S. Nelson qualified as an expert witness on
the subjects of clinical and forensic psychology. He
testified on behalf of the defendant, Daryl Renard Atkins.
Dr. Nelson reviewed the defendant's school records,
psychological test data, and certain information related to
the defendant's capital murder conviction and his prior
convictions. Dr. Nelson also interviewed members of the
defendant's family.
Dr. Nelson administered the Wechsler Adult Score, also
referred to as the WAIS-III intelligence test, to the
24
defendant. This test was designed to measure the
defendant's IQ. Dr. Nelson stated:
"There are a number of IQ tests on the market.
Some of them are for special niches of
population. But the WAIS is one of the two that
is recognized throughout the United States as a
standard for assessing intelligence.
"It's the one that's most frequently cited,
for example, in state laws for identifying who
qualifies for a learning disability or a mental
retardation, the one that's most often cited in
Federal disability laws for making determinations
involving an IQ or neurologic deficits."
According to Dr. Nelson, there are 13 major
subsections of the test that he administered to the
defendant. Dr. Nelson administered all 13 of the major
subsections to the defendant and determined that the
defendant had a full-scale IQ of 59. Dr. Nelson observed:
"Mental retardation is about two things. Number
one, it's about an IQ of around 70 or below, and
there [is] some space there, 70 or plus or minus
five points is the official criteria. . . .
"Secondly, adaptive behavior. Being
mentally retarded isn't just a low score on this
test. It's about lacking certain abilities to
function independently compared to what you'd
expect for other persons your age. That's a
really important criteri[on]. Because there are
some people who can score really well or really
poorly on this test but who either do or don't
function well in society. So you have to go out
and find out by talking with family members and
school records and employment records, if they
have any, about how they function in the world at
large. You need the two of them together to be
able to say someone is mentally retarded."
25
Dr. Nelson, who is a specialist in the assessment of
mental illnesses, opined that the defendant was mentally
retarded based upon his IQ score of 59 and his limited
capacity for adaptive behavior. Dr. Nelson pointed out
that in addition to the defendant's low IQ score of 59, the
defendant's public school academic records "are crystal
clear that he has been an academic failure since the very
beginning." Dr. Nelson testified that the "lack of
variation" in the defendant's performance on the IQ test
indicates that the test was properly administered and that
the defendant was not "faking" when he took the test.
Even though the defendant was not classified as
mentally retarded when he was a student in the Hampton
Public Schools Division, his academic performance was very
poor. He scored below the 20th percentile in almost every
standardized test he took. He failed the second and tenth
grades. He was socially advanced from the fourth grade to
the fifth grade.
When the defendant was an eighth-grade student, he
received failing grades in all his classes, and he scored
in the 15th percentile of standardized achievement tests.
When he was a tenth-grade student, he scored in the 6th
percentile. The defendant, when a student in high school,
was placed in lower-level classes for slow learners and
26
classes with intensive instruction for remedial deficits.
His grade point average in high school was 1.26 out of a
possible 4.0. The defendant did not graduate from high
school.
Dr. Stanton E. Samenow qualified as an expert witness
in the subjects of clinical psychology and forensic
psychology. He testified on behalf of the Commonwealth.
Dr. Samenow interviewed the defendant twice. Dr. Samenow
did not administer an IQ test to the defendant. Rather, he
asked the defendant some questions.
Dr. Samenow testified that the defendant was able to
relate to him certain recent events and historical facts.
For example, the defendant knew the name of the Governor of
Virginia and knew that former President John F. Kennedy's
son had died in an airplane accident. The defendant was
also able to associate certain words and to tell a story
utilizing certain pictures. Dr. Samenow did not give the
defendant a complete intelligence test, but essentially
picked and chose certain questions from various tests to
query the defendant.
For example, during cross-examination, Dr. Samenow
testified:
"As I indicated . . . I gave portions of the
Wechsler Memory Scale, the selected items of the
Wechsler Adult Intelligence Scale, namely, from
27
similarities, vocabulary and comprehension, and I
also gave the Thematic Apperception Test, which
in itself is not an intelligence test but it
certainly does give some indication of a person's
use of syntax, language, vocabulary, and these
were portions. I want to underscore, and I said
this yesterday, portions of those tests."
Dr. Samenow also gave the following testimony:
"Q: In your interviews with the Defendant,
did you ascertain any evidence suggestive of
mental retardation?
"A: I found absolutely no evidence other
than the IQ score that I knew of, because I
reviewed a number of materials. No evidence did
I find other than that indicating that the
Defendant was in the least bit mentally retarded.
"Q: Do you have an expert opinion as to the
Defendant's intellect?
"A: He is of average intelligence, at
least.
"Q: Explain the basis of how you came to
this conclusion.
"A: Largely though several indices. One is
the vocabulary and syntax that he used in talking
with me. And I have many examples."
Significantly, Dr. Samenow testified that Dr. Nelson's
calculations of the scores on the tests administered to the
defendant to ascertain the defendant's IQ were correct.
Dr. Samenow did not conduct a full evaluation of the
defendant, nor did he use questions from the most recent
test when he examined the defendant.
III.
"Mental retardation refers to substantial
limitations in present functioning. It is
characterized by significantly subaverage
intellectual functioning, existing concurrently
with related limitations in two or more of the
28
following applicable adaptive skill areas:
Communication, self-care, home living, social
skills, community use, self-direction, health and
safety, functional academics, leisure, and work.
Mental retardation manifests itself before age
18."
Carroll J. Jones, An Introduction to the Nature and Needs
of Students with Mild Disabilities: Mild Mental
Retardation, Behavior Disorders, and Learning Disabilities,
39 (1996).
Persons with an IQ level in the range of 50 through 55
to 70 are classified as having mild mental retardation.
The following table of diagnostic criteria for mental
retardation appears in Kaplan & Sadock's Comprehensive
Textbook of Psychiatry 2598, Benjamin J. Sadock & Virginia
A. Sadock eds., (7th ed. 2000):
"Mental Retardation IQ range Mental age
(years)
Mild 50-69 9 to under 12
Moderate 35-49 6 to under 9
Severe 20-34 3 to under 6
Profound Below 20 Less than 3"
According to Doctors Kaplan & Sadock:
"Mild mental retardation (I.Q., 55 to 70)
characterizes the largest group of persons with
mental retardation, possibly as many as 85
percent of the total. These individuals appear
similar to nonretarded individuals and often
blend into the general population in the years
before and after formal schooling. Many achieve
academic skills at the sixth grade level or
higher, and some graduate from high school. As
adults, many of these individuals hold jobs,
29
marry, and raise families — yet at times they may
appear slow or need extra help negotiating life's
problems and tasks."
Id. The evidence of record shows that the defendant's
full-scale IQ score of 59 falls within the range considered
mild mental retardation. Less than one percent of the
American population at large has a score of 59 or below.
I would commute the defendant's sentence of death to
life imprisonment without the possibility of parole because
I believe that the sentence of death is "excessive . . . to
the penalty imposed in similar cases, considering both the
crime and the defendant." Upon my independent review of
the entire record in this case, see Vinson v. Commonwealth,
258 Va. 459, 472, 522 S.E.2d 170, 179 (1999), cert. denied,
___ U.S. ___, 120 S.Ct. 2226 (2000), it is clear that this
defendant is mentally retarded. This defendant, who has an
IQ of 59 and a limited capacity for adaptive behavior, has
the cognitive ability or mental age of a child between 9
and 12 years of age. This Court has never approved of the
imposition of the death penalty upon a defendant who is
mentally retarded and has an IQ as low as 59.
I simply place no credence whatsoever in Dr. Samenow's
opinion that the defendant possesses at least average
intelligence. I would hold that Dr. Samenow's opinion that
the defendant possesses average intelligence is incredulous
30
as a matter of law. Indeed, I am perplexed that Dr.
Samenow, who did not administer a complete IQ test to the
defendant and admittedly asked the defendant questions
based upon bits and pieces of outdated tests to supposedly
evaluate the defendant, would opine that this defendant
possesses at least average intelligence.
Dr. Samenow admitted that he does not contest the
manner in which Dr. Nelson computed the defendant's IQ
scores. Additionally, Dr. Samenow admitted that some of
the questions he administered to the defendant were based
upon a test developed in 1939. Dr. Samenow described this
test as "[a]n old standard," yet, he used this obsolete
test even though he acknowledged that the Ethical
Principles of Psychologists and Code of Conduct, Ethical
Standards 2.07 (1992) of the American Psychological
Association, prohibits the use of obsolete tests and
outdated test results and specifically states that
"psychologists do not base such decisions or
recommendations on tests and measures that are obsolete and
not useful for the current purpose."
Moreover, according to the testimony and medical
literature, an assessment of mental retardation is
predicated upon the subject's IQ score and the subject's
adaptive behavior. Dr. Samenow, however, could not validly
31
opine about the defendant's adaptive behavior because he
had not interviewed anyone who had observed the defendant
prior to his incarceration. Additionally, Dr. Samenow's
methodology is flawed because when he improperly
administered portions of certain tests, he failed to comply
with the relevant instructions for those tests.
Also, I place no credence in Dr. Samenow's opinion
that the defendant possesses an average intelligence
because of the defendant's vocabulary and his ability to
relate certain historical facts to Dr. Samenow. It is
common knowledge that many children as young as eight years
old are capable of relating the same historical facts that
the defendant described and possess a vocabulary similar to
the defendant's vocabulary.
I recognize that the United States Supreme Court has
held that the imposition of the death penalty upon mentally
retarded criminal defendants does not violate the Eighth
Amendment to the United States Constitution. See Penry v.
Lynaugh, 492 U.S. 302, 340 (1989). However, the issue in
this appeal is not whether the imposition of capital
punishment upon a mentally retarded criminal defendant
violates the federal Constitution. Rather, the issue in
this appeal is whether under Code § 17.1-313 the imposition
of the sentence of death is excessive or disproportionate
32
to the penalty imposed in similar crimes, considering both
the crime and the defendant. I would answer that question
in the affirmative. I believe that the imposition of the
sentence of death upon a criminal defendant who has the
mental age of a child between the ages of 9 and 12 is
excessive, considering both the crime and the defendant.
IV.
I recognize that this defendant has a history of
violent criminal behavior. I also recognize that this
defendant is clearly a significant danger to society.
Therefore, I would commute this defendant's sentence to
life imprisonment without the possibility of parole.
JUSTICE KOONTZ, with whom JUSTICE HASSELL joins,
dissenting.
I agree with the view expressed in detail in Justice
Hassell’s dissent in this case. For the reasons expressed
therein and for the following reasons, I would also commute
Daryl Renard Atkins’ death sentence to imprisonment for
life without the possibility of parole. Code §§ 17.1-313
and 53.1-165.1.
Justice Hassell correctly observes that “[t]his Court
has never approved the imposition of the death penalty upon
a defendant who is mentally retarded and has an IQ as low
33
as 59.” In footnote 9, the majority refers to Mackall v.
Commonwealth, 236 Va. 240, 372 S.E.2d 759 (1988), to note
that this Court has upheld, however, a sentence of death
for a defendant with an IQ of 64 who was convicted of
capital murder committed during a robbery. In another part
of its opinion, the majority further correctly notes that
“Dr. Nelson also acknowledged that Atkins might have scored
two or three points higher if he had not been mildly
depressed when Dr. Nelson administered the [IQ] test.” In
doing so, apparently the majority suggests that there is no
significant distinction between Atkins’ full scale IQ and
that of Mackall. In my view, our statutory mandate under
Code § 17.1-313 to determine “[w]hether the sentence of
death is excessive or disproportionate to the penalty
imposed in similar cases” does not, and should not, lend
itself to mathematical calculations and comparisons of
specific degrees of mental retardation of defendants
sentenced to death. Unlike the circumstances existing when
Mackall was decided, however, the legislature, with the
enactment of Code § 53.1-165.1, has effectively provided
that a death sentence commuted to a life sentence shall be
a life sentence without the possibility of parole. That
change in the law is a valid consideration in the
34
determination of whether a particular death sentence is
excessive.
Moreover, it is indefensible to conclude that
individuals who are mentally retarded are not to some
degree less culpable for their criminal acts. By
definition, such individuals have substantial limitations
not shared by the general population. A moral and
civilized society diminishes itself if its system of
justice does not afford recognition and consideration of
those limitations in a meaningful way. Such must certainly
be the case when our system of justice demands, as it does,
that even the mentally retarded be held responsible for
criminal acts for which the legislature has determined to
be properly subject to a death sentence or a sentence of
life without the possibility of parole. The choice is
clear and limited. In my view, the execution of a mentally
retarded individual rather than the imposition of a
sentence of life without the possibility of parole is
excessive. I would not permit such a result in Atkins’
case even though his crime was vile and his guilt
undeniable. For these reasons, I respectfully dissent.
35