Atkins v. Commonwealth

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