Johnson v. Commonwealth

PRESENT: Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and Agee,
JJ., and Stephenson, S.J.

SHERMAINE A. JOHNSON

v. Record No. 031306 OPINION BY JUSTICE BARBARA MILANO KEENAN
January 16, 2004
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
James E. Kulp, Judge Designate

In this appeal of a judgment confirming a death sentence

imposed in a resentencing proceeding in a capital murder case,

we consider a range of issues including the question whether the

trial court erred in refusing to impose a life sentence pursuant

to Atkins v. Virginia, 536 U.S. 304 (2002) (Atkins III). We

also consider the constitutionality of Code § 19.2-264.3, which

provides that a resentencing proceeding on remand be held before

a different jury than the jury that originally tried the

defendant.

I. PROCEEDINGS

In July 1998, the defendant, Shermaine A. Johnson, was

convicted in a jury trial of the capital murder of Hope D. Hall

in the commission of rape, in violation of Code § 18.2-31(5),

and of rape, in violation of Code § 18.2-61. The circuit court

sentenced Johnson in accordance with the jury verdict to death

for capital murder and to life imprisonment for rape. We

affirmed the circuit court's judgment in Johnson v.
Commonwealth, 259 Va. 654, 684, 529 S.E.2d 769, 786-87, cert.

denied, 531 U.S. 981 (2000).

After exhausting his remedies on direct appeal, Johnson

filed a petition for a writ of habeas corpus. Johnson alleged,

among other things, that he was denied effective assistance of

counsel during the penalty phase of his capital murder trial

because his trial counsel failed to request an instruction

informing the jury that Johnson would be ineligible for parole

if sentenced to life imprisonment for capital murder.

Based on the holding in Simmons v. South Carolina, 512 U.S.

154, 156 (1994), that a defendant whose future dangerousness is

at issue is entitled to have the jury informed of his parole

ineligibility during the penalty phase of his trial, we awarded

Johnson a writ of habeas corpus and vacated his death sentence

on the capital murder conviction. We remanded the case to the

circuit court for a new sentencing proceeding on that

conviction.

At the resentencing hearing, a different jury fixed

Johnson's punishment for capital murder at death based on

findings of both "future dangerousness" and "vileness." The

circuit court sentenced Johnson to death on the capital murder

charge in accordance with the jury verdict. Johnson appeals.

II. THE EVIDENCE

2
 In Johnson's original appeal to this Court, we stated in

detail the facts relating to his convictions on the capital

murder and rape charges. Johnson, 259 Va. at 662-66, 529 S.E.2d

at 773-76. We will recite those facts from our previous opinion

that are relevant to the present proceedings:

On July 11, 1994, the nude body of 22-year-old Hope
Denise Hall was found on the bedroom floor of her
apartment in Petersburg. She had been stabbed 15
times, including fatal stab wounds to her back, chest,
and neck.

Hall's body had abrasions on the nose and left
cheek. The body also had a broken, ragged fingernail
that Dr. Deborah Kay, an assistant chief medical
examiner for the Commonwealth, testified was a
"defense-type" injury. Dr. Kay also testified that
death "is not generally immediate" with wounds such as
those suffered by Hall, and that she initially would
have remained conscious after the wounds were
inflicted.

The police found blood on two "steak" knives,
which were lying on a counter in Hall's kitchen.
Blood was also found on a piece of a broken drinking
glass located on the kitchen counter, and there was
additional blood on the kitchen counter and floor.
The police recovered from the kitchen floor an
earring, five strands of hair, and a partial shoe
print containing some blood. The matching earring was
found in Hall's bedroom.

The outside door to Hall's apartment was locked,
and the police found a partial fingerprint and smears
of blood on the inside panel of that door, which was
located near the kitchen. The police recovered two
additional "steak" knives, one on Hall's bed and one
in her bathroom. The telephone wires in her bedroom
had been pulled out of the wall.

A smear of blood and blood splatters were located
on the bedroom wall near the victim's body. The
police found additional blood on the bedroom floor,

3
dresser, sheets, and bedspread. There was no sign of
forced entry into the apartment.

DNA Evidence

Jean M. Hamilton, a forensic scientist employed
by the Virginia Division of Forensic Science,
testified that she performed DNA testing using the
"polymerase chain reaction," or PCR, technique on
evidence recovered from the crime scene and a blood
sample and vaginal swabs collected from Hall's body
during an autopsy. Hamilton concluded that the DNA
from the blood found on the knife on the bed, the
knives in the kitchen, the kitchen countertop, and the
front door all matched the DNA from Hall's blood
sample.

Hamilton determined that the DNA from Hall's
blood did not match the DNA from the blood on the
handle of the knife found in the bathroom. However,
the blood from the broken glass in the kitchen and one
bloodstain on the bedspread contained a mixture of
Hall's DNA and DNA from the same person whose blood
was on the handle of the knife found in the bathroom.

Hamilton testified that DNA from sperm detected
in two semen stains on the sheets and DNA from another
stain on the bedspread came from the same person as
the DNA from the blood on the bathroom knife.
However, the DNA from the sperm detected in the
vaginal swab taken from Hall's body came from more
than one person.

. . . .

Hamilton then performed a more discriminating
type of DNA analysis, known as "restriction fragment
length polymorphism" or RFLP testing, on the DNA from
two semen stains found on the sheet and the bedspread.
After obtaining the DNA profile from those two stains,
Hamilton searched the DNA data bank maintained by the
Division of Forensic Science to determine if the DNA
profile obtained from the crime scene evidence matched
any DNA profile on record in the DNA data bank.
Hamilton did not find a matching DNA profile at the
time of her initial search in March 1996, at which

4
time there were about 5,000 samples in the DNA data
bank.

In August 1996, Hamilton performed a second
search of the DNA data bank after about 2,500 more
samples had been added to the bank. Hamilton's second
search revealed that one DNA profile contained in the
data bank was consistent with the DNA profile that she
had obtained from the crime scene evidence. This
matching DNA profile belonged to the defendant,
Shermaine A. Johnson, who was incarcerated in the
Southampton Correctional Institute.

. . . .

Other Crimes Evidence

Prior to trial, the Commonwealth gave Johnson
notice that it intended to present evidence during the
guilt phase of the trial that Johnson had raped 21-
year-old Lavonda Scott on July 2, 1994, and 15-year-
old Janel Chambliss on August 31, 1994. Over
Johnson's objection, the trial court permitted both
Scott and Chambliss to testify about these crimes,
after finding that there were "numerous" similarities
between the crimes committed against Scott and
Chambliss and the pending charges against Johnson.

The trial court cited the following factors in
its decision to permit the testimony of Scott and
Chambliss. All three victims were young African-
American women. Scott and Chambliss both knew Johnson
and allowed him to enter their homes. There was no
sign of forced entry into Hall's apartment. Johnson
assaulted both Scott and Chambliss after requesting a
glass of water. He then seized knives from their
kitchens. There was a broken drinking glass in Hall's
kitchen, and the knives used to kill Hall came from
her kitchen.

Johnson forced both Scott and Chambliss to remove
all their clothing before raping them. Hall's body
was totally nude and her clothes were found near her
body. Johnson threatened both Scott and Chambliss,
stating that he would kill them if they did not follow
his directions. When Chambliss resisted and struggled
with Johnson, he stabbed her. There was evidence of a

5
 struggle in Hall's apartment and Hall was fatally
stabbed. All three crimes occurred within a [60]-day
period in 1994.

Id. (Footnote omitted).

Before the resentencing proceeding on remand, Johnson filed

various motions in the circuit court. In one motion, Johnson

asked the circuit court to prohibit the Commonwealth from using

"live" testimony to present evidence of his guilt and to require

the Commonwealth to "rely on the transcript as previously made

to introduce this evidence." However, during another argument

before the circuit court, Johnson objected to the Commonwealth's

"use [of] transcripts versus live testimony and how it hinders

the defense in its ability to cross-examine witnesses . . . and

how it could have a prejudicial [e]ffect on the jury." Johnson

also asked the circuit court to allow him to present evidence of

his "innocence" during the resentencing hearing. The circuit

court denied Johnson's requests and granted the Commonwealth's

motion to prohibit Johnson from presenting evidence, cross-

examining witnesses, or making any argument in relation to his

claim of innocence.

Johnson also requested that the circuit court impose a life

sentence on the ground that the jury in his first trial would

have fixed punishment at life imprisonment on the capital murder

charge had the jury been properly instructed concerning his

ineligibility for parole. In support of this motion, Johnson

6
presented affidavits from two jurors who served during Johnson's

first trial. In the affidavits, the jurors stated that had they

"known that Mr. Johnson would receive a sentence of life without

the possibility of parole," they "would have recommended that

sentence instead of the death penalty." The circuit court

denied Johnson's motion.

Johnson also asked the circuit court to impose a life

sentence on the ground that he was 16 years old at the time of

these offenses. The circuit court denied this motion, as well

as Johnson's motion that the capital murder and death penalty

statutes be declared unconstitutional on various grounds.

Johnson further requested that the circuit court impose a

life sentence based on his alleged "mental illness." Johnson

asserted that he had been diagnosed as suffering from

"Dissociative Identity Disorder" (DID), a mental condition which

Johnson described as featuring "the presence of two or more

distinct identities or personality states that recurrently take

control of behavior." Johnson also represented that assessments

of his intellectual functioning showed that he had an I.Q. score

of 75 in 1991, and an I.Q. score of 78 in 1992.

A psychological evaluation, prepared in February 1991 by a

certified school psychologist for the Franklin City Public

Schools, concluded that Johnson was "a young man of limited

intellectual potential whose academic achievement and other

7
school-related skills are commensurate with expectations for the

slow learning student." The report described Johnson's I.Q.

score:

[Johnson's] Full Scale I.Q. places him in the
"borderline" range of cognitive development, with a
95% chance that his true score falls between 69 and
81. He obtained a Verbal Scale score of 81, a
Performance Scale score of 72, and a Full Scale
Intelligence Quotient of 75.

Although the report classified Johnson as a "slow learner," it

stated that Johnson's "learning status does not . . . indicate

eligibility for special education services." The report

concluded that Johnson was "in great need of emotional and

academic support within the school setting."

Johnson argued to the circuit court that his low I.Q.

scores could "qualify him to be considered as mentally retarded"

and thus ineligible to receive the death penalty under the

United States Supreme Court's ruling in Atkins III. Johnson

further asserted that his low intelligence and his DID diagnosis

indicated that he suffered from a "mental impairment sufficient

to make him ineligible for the death penalty." The Commonwealth

argued in response that there was no evidence indicating that

Johnson was mentally retarded.

At the time of Johnson's resentencing proceeding, the

General Assembly had not yet enacted legislation providing

procedures to resolve claims of mental retardation raised by

8
defendants in capital murder cases. In considering Johnson's

claim, the circuit court relied on a definition of mental

retardation found in proposed legislation that at the time had

been approved by the Senate of Virginia but had not been voted

upon by the House of Delegates. The circuit court stated:

[T]he Senate passed the bill, and it has the same
definition for mental retardation as the American
Psychiatric Association. And under that bill . . . it
had a two part definition of mentally retarded: In
order to be considered mentally retarded inmates must
have substantial subaverage, general intellectual
function, existing concurrently with significant
limitations and adaptive functioning, both of which
were before the age of 18. The bill defines
significantly subaverage general intellectual
functioning at an IQ of 70 or below as measured by
scientifically recognized and standardized
intelligence quotient testing.

Significant limitations and adaptive intellectual
functioning means significant limitation in two or
more skill areas such as communication, self-care,
home living, social and interpersonal skills, and
health and safety according to the bill.

The circuit court concluded that it had "not been presented any

evidence as of this point of [mental] retardation under the

definition which the Court adopts." The court denied Johnson's

motion but indicated that he could renew his request upon

presenting further evidence regarding his claim of mental

retardation.

During Johnson's resentencing hearing, the Commonwealth

presented to the jury evidence of Johnson's guilt. The parties

stipulated that Johnson's blood was found on a knife taken from

9
Hall's bathroom and on a broken glass discovered in Hall's

kitchen. The jury also was informed that Johnson's sperm was

found on Hall's bed sheets, bedspread, and in a "vaginal

cervical swab" taken from Hall's body. In addition, the parties

stipulated that Johnson had admitted to the police that he had

been in Hall's apartment on the night of her murder.

The Commonwealth also presented evidence of Johnson's

criminal record and of certain unadjudicated acts. The evidence

showed that in August 1992, when Johnson was 14 years old, he

sexually assaulted Elsie Soto in the State of New Jersey. In

January 1994, he raped Nicole Lisa, also in the State of New

Jersey.

On June 29, 1994, Johnson raped Tiffany Burgess in the

State of New York. A few days later, Johnson raped Lavonda

Scott in the City of Franklin, Virginia. In August 1994, he

raped and abducted Janel Chambliss in the City of Franklin.

Johnson also was convicted of breaking and entering into

Chambliss' home with the intent to rape her.

In conjunction with this evidence of prior convictions, the

Commonwealth presented the transcribed testimony of Tiffany

Burgess given in Johnson's first trial, and read that testimony

into evidence before the jury. Burgess testified that she was

15 years old when Johnson lured her to a friend's apartment

under the pretext of showing her a present he was planning to

10
give to her friend. Burgess stated that once they arrived at

the apartment door, Johnson grabbed her from behind, placed her

in a "choke hold" while wielding a "big knife," and forced her

inside the apartment. Burgess also stated that Johnson ordered

her to remove all her clothing and to perform oral sodomy on him

before he raped her at knifepoint.

Elsie Soto testified that she was 12 years old when Johnson

sexually assaulted her. Soto stated that Johnson, who attended

her school, had arrived at her house one day and asked to talk

with her. Soto stated that after she refused to let Johnson

come into the house, he gained forcible entry through a kitchen

window. Soto testified that Johnson held her down on a bed and

repeatedly hit her in the face while he exposed himself and

fondled her breasts and vagina.

Nicole Lisa testified that she was 13 years old when

Johnson raped her in January 1994. Lisa's testimony revealed

that as she was leaving her apartment for school one morning,

Johnson grabbed her from behind and placed a "steak knife"

against her neck. Johnson "dragged" Lisa to the "back hallway

elevator shaft" of her apartment building, where he ordered her

to remove all her clothing before raping her at knifepoint.

Janel M. Chambliss testified that she was 15 years old and

was babysitting her seven-month-old nephew when Johnson raped

her. Johnson, who was Chambliss' neighbor, arrived at

11
Chambliss' house and requested a glass of water. About that

time, her nephew began to cry. When Chambliss picked up her

nephew, Johnson approached her from behind and placed a "steak

knife" against her throat. Johnson told Chambliss that "he came

to do one thing and one thing only," and that he would kill both

Chambliss and her nephew if she did not follow his instructions.

Chambliss then attempted to thwart Johnson's attack.

During the ensuing struggle, Johnson stabbed Chambliss. Once

Johnson gained physical control over Chambliss, he ordered her

to perform oral sodomy on him. When she refused, Johnson raped

her.

Lavonda S. Scott testified that she was 21 years old when

Johnson raped her. Scott's testimony indicated that Johnson was

a family friend and that she had known him for eight years

before the attack. Johnson, who was 16 years old, did not have

a place to live and had been spending some nights at Scott's

house.

One night, when Scott's children were in the home, Johnson

approached Scott from behind, pulled her hair, and pressed a

"steak knife," which he had obtained from Scott's kitchen, "deep

into [her] throat." Johnson told Scott that if she did not

remove her clothing, he would stab and kill her. Johnson forced

Scott to remove her clothes and to perform oral sodomy on him.

12
Johnson then raped Scott while holding the knife against her

body.

The Commonwealth next presented testimony from several of

Hall's relatives, including her mother and her son, who related

the impact of Hall's death on their lives. At the conclusion of

the Commonwealth's evidence, Johnson moved to strike the

evidence on the ground that the Commonwealth had failed to

present sufficient evidence to establish either "future

dangerousness" or "vileness." The circuit court denied

Johnson's motion.

Johnson presented testimony from Annie Mae Stephens, his

great aunt. Stephens testified that when Johnson was about 12

years old, she went to visit Johnson and his mother, Angela, at

their house. Stephens stated that upon arriving at the house,

she observed Johnson leaving a room. Stephens stated that

Johnson appeared to be "aggravated," "hurt," and "angry."

Stephens further testified that she entered the room that

Johnson had left and discovered Angela in the room, "bleeding

between her legs." Stephens stated that Angela informed her

that she had been raped by her boyfriend. Stephens was unaware

whether Johnson had observed "any act going on" in the room.

Stephens testified that Johnson was close to his mother and

that she was "good to him." Stephens also testified, however,

13
that Angela abused drugs and was abusive toward Johnson when she

disciplined him.

Virginia Dancy, Johnson's grandmother, testified that

Johnson's stepfather was addicted to heroin and was "an abusive

husband" to Angela. Dancy stated that Angela became addicted to

heroin after she married Johnson's stepfather, and that Johnson

had been exposed to their drug use. Dancy also stated that

Angela had died of AIDS, and that Johnson's "problems with the

law" did not begin until after his mother's death.

Dancy further testified that she had found Johnson and

Angela in a "crack house" when Johnson was three years old, and

that Johnson was standing in a large room among "a lot of

people" who were using cocaine. Dancy stated that she took

Johnson to the bathroom and that when he attempted to urinate,

he informed her that his penis hurt. Dancy testified that when

she observed that Johnson's penis was "red and swollen," he told

her that "a lady did it." Dancy stated that when she informed

Angela of Johnson's condition and his comment regarding the

"lady," Angela replied that nobody had "been bothering" Johnson

and that he merely had a bladder infection.

Sheila Wilson, Johnson's cousin and pastor, testified that

she had visited Johnson in prison over the previous "year or

two." Wilson stated that during her last visit with Johnson,

which occurred several weeks before Johnson's resentencing

14
hearing, he related two childhood memories that he had not

mentioned before. Wilson testified that Johnson told her that

he remembered sitting in the backseat of a car, which had been

parked in a public park, while his mother and her boyfriend used

heroin in the front seat. Wilson stated that Johnson also told

her that he remembered discovering his mother lying in a bathtub

with a syringe stuck in her arm.

Johnson also presented the testimony of Delores Dungee-

Anderson, a licensed clinical social worker who qualified as an

expert in the diagnosis of Dissociative Identity Disorder (DID),

formerly known as "multiple personality disorder," and

"borderline personality disorder." After interviewing Johnson

on three occasions before the resentencing hearing and examining

his psychological reports, Dungee-Anderson concluded that

Johnson suffered from DID and a possible borderline personality

disorder.

Dungee-Anderson testified that DID often occurs as the

result of a childhood trauma, such as severe emotional,

physical, or sexual abuse. According to Dungee-Anderson,

children exposed to such trauma often create "fragmented parts"

within their minds as a survival tactic to allow them to escape

mentally from any harm that they may be experiencing. These

"fragmented parts" or "alters" are separate and distinct

personalities that exist within the mind of an individual

15
afflicted with DID. Different "alters" are "triggered" and

emerge when the individual feels threatened or encounters

certain other external stimuli. When an "alter" "takes control

of the person," the other "alters" are often unaware of what is

happening to the individual.

Dungee-Anderson concluded that Johnson had two separate

"alters" that were distinct from Johnson's own personality. She

testified that Johnson had an "alter" named "Shy," and that

Johnson was consciously aware of that "alter," a phenomenon that

she termed "co-consciousness."

According to Dungee-Anderson, Johnson described "Shy" as

being different, stating that "I am very shy. . . . Sometimes I

can't find the right words to talk to people. I don't know what

to say," whereas "Shy is very confident; he can talk to the

ladies. He is very different from me. He knows what to say."

When Dungee-Anderson suggested to Johnson that "Shy" was an

alternative personality, Johnson claimed that he was "not crazy"

and that "Shy is me; he is not different from me; he is me."

Dungee-Anderson stated that during one of her interviews

with Johnson, a different "alter" emerged that was characterized

by "rage." Dungee-Anderson "called out" to this "alter" while

she was leading Johnson through a relaxation technique. She

stated that when the "rage alter" emerged, there was a "surge of

16
energy" and the "rage alter" proclaimed that Johnson's mother,

who had died in 1992, was in the room.

The "rage alter" stated that he was "mad" at his mother

because she lied to him when she told him that "she wouldn't go

anywhere" and then left him "in this world by [himself]." The

"rage alter" mentioned Johnson's stepfather and then repeatedly

stated, "nothing but abuse." The "rage alter" stated that he

had "nothing but hate and contempt" for Johnson's stepfather

because he had abused Johnson's mother.

When Dungee-Anderson asked the "rage alter" what he did

when he experienced such strong feelings, the "rage alter"

replied, "I strike out." After Dungee-Anderson asked him in

what manner did he "strike out," the "rage alter" replied,

"Whatever the situation calls for." When Dungee-Anderson asked

him for specific examples of such behavior, Johnson's own

personality reemerged. Johnson claimed that he did not remember

any of the conversation between Dungee-Anderson and the "rage

alter."

Dungee-Anderson testified that she did not believe that

Johnson was lying about his condition in an attempt to convince

her that he suffered from DID. She noted that Johnson did not

want to continue with the interview when she sought more

information, and that persons who attempt to deceive her about

their condition typically wish to engage in further conversation

17
with her. Dungee-Anderson further stated that Johnson

experienced a "terrible migraine headache" when his personality

"switched" between the "alters," which is a typical

characteristic of those suffering from DID.

Dungee-Anderson also noted that Johnson had claimed to

"hear voices," which is often symptomatic of DID. She stated

that the memory loss Johnson experienced during episodes of

conduct by his personality "alters" is another symptom of DID.

Dungee-Anderson conceded, however, that Johnson could recall

attacking Hall and most of his other victims.

Dungee-Anderson testified that DID is different from mental

retardation and that based on Johnson's test results, he did not

appear to have a "mental retardation problem." She also stated

that Johnson had never been diagnosed as being mentally

retarded.

Dungee-Anderson further testified that individuals

suffering from DID typically have lower I.Q. scores because

various "alters" may learn different information of which the

individual as a whole may be unaware. Dungee-Anderson observed

that "[i]f you are not in school for some information, you can't

repeat it when you do the IQ testing. That is well-known in

testing."

At the conclusion of the evidence, Johnson renewed his

motion to strike the Commonwealth's evidence on the ground that

18
the Commonwealth failed to establish "future dangerousness" or

"vileness." The circuit court denied Johnson's motion.

The jury fixed Johnson's punishment at death, finding that

there was a "probability that he would commit criminal acts of

violence that would constitute a continuing serious threat to

society." The jury also found that Johnson's "conduct in

committing the offense is outrageously or wantonly vile,

horrible or inhuman in that it involved torture[,] depravity of

mind[,] [and] aggravated battery to the victim beyond the

minimum necessary to accomplish the act of murder."

At the sentencing proceeding in the circuit court following

the jury verdict, Johnson introduced in evidence Dungee-

Anderson's "psychological diagnostic assessment" of Johnson,

which included much of the information she had provided to the

jury. The circuit court also considered a pre-sentence

investigation report (PSI), which stated that Johnson had

completed the fifth grade and that he had exhibited "significant

behavior and academic problems in school." However, attached to

an earlier PSI was a "sex offender evaluation report," which

stated that Johnson had completed the eighth grade while

attending school in the State of New York.

Before imposing sentence on Johnson, the circuit court

inquired whether Johnson wanted "to address whether there [was]

any evidence to indicate that the jury imposed the sentence of

19
death under influence of any passion, prejudice or other

arbitrary factor." Johnson replied that he did not wish to make

such an argument.

The circuit court sentenced Johnson to death in accordance

with the jury verdict. In explaining its ruling, the court

stated:

Upon a mature consideration of all of the
evidence, including the defendant's mitigating
evidence, the violent nature of this crime, and the
defendant's past record which includes five rapes
within a seven month period, the Court finds no good
cause to overturn the jury's verdict.

III. ISSUES PREVIOUSLY DECIDED

Johnson raises certain arguments that we resolved against

him in his first appeal to this Court, consistent with our

previous decisions on these issues. We reaffirm our earlier

holdings and reject the following arguments:

A. Virginia's capital murder sentencing statutes fail to

provide meaningful guidance to the jury concerning the meaning

of the terms "future dangerousness" and "vileness." Rejected in

Johnson, 259 Va. at 667, 529 S.E.2d at 776; accord Jackson v.

Commonwealth, 266 Va. 423, 430, 587 S.E.2d 532, 538 (2003);

Wolfe v. Commonwealth, 265 Va. 193, 208, 576 S.E.2d 471, 480,

cert. denied, ___ U.S. ___, 124 S.Ct. 566 (2003); Walker v.

Commonwealth, 258 Va. 54, 61, 515 S.E.2d 565, 569 (1999), cert.

denied, 528 U.S. 1125 (2000); Cherrix v. Commonwealth, 257 Va.

20
292, 299, 513 S.E.2d 642, 647, cert. denied, 528 U.S. 873

(1999).

B. Virginia's statutory scheme fails to properly inform and

instruct the jury concerning its consideration of mitigation

evidence. Rejected in Johnson, 259 Va. at 667, 529 S.E.2d at

776; accord Jackson, 266 Va. at 429, 587 S.E.2d at 538;

Morrisette v. Commonwealth, 264 Va. 386, 398, 569 S.E.2d 47, 55

(2002); Walker, 258 Va. at 61, 515 S.E.2d at 569; Cherrix, 257

Va. at 299, 513 S.E.2d at 647; Goins v. Commonwealth, 251 Va.

442, 452, 470 S.E.2d 114, 122, cert. denied, 519 U.S. 887

(1996).

C. Virginia's capital murder sentencing statutes improperly

allow the Commonwealth to prove "future dangerousness" by the

use of unadjudicated criminal conduct, thereby omitting any

standard of proof for the admission of such evidence. Rejected

in Johnson, 259 Va. at 667, 529 S.E.2d at 776; accord Green v.

Commonwealth, 266 Va. 81, 107, 580 S.E.2d 834, 849 (2003);

Cherrix, 257 Va. at 299, 513 S.E.2d at 647; Jackson v.

Commonwealth, 255 Va. 625, 635, 499 S.E.2d 538, 545 (1998),

cert. denied, 525 U.S. 1067 (1999).

D. Virginia's capital murder sentencing statutes are

unconstitutional because they allow, but do not require, the

court to set aside a death sentence on a showing of good cause

and permit the court to consider hearsay evidence in the pre-

21
sentence report. Rejected in Johnson, 259 Va. at 667-68, 529

S.E.2d at 776; see also Bell v. Commonwealth, 264 Va. 172, 203,

563 S.E.2d 695, 716 (2002), cert. denied, 537 U.S. 1123 (2003);

Lenz v. Commonwealth, 261 Va. 451, 459, 544 S.E.2d 299, 303-04,

cert. denied, 534 U.S. 1003 (2001); Walker, 258 Va. at 61, 515

S.E.2d at 569; Cherrix, 257 Va. at 299, 513 S.E.2d at 647.

E. Johnson also raises an issue that was not presented in

his first appeal but has been decided adversely to his position

in our previous decisions. Johnson asserts that this Court

fails to conduct its proportionality and "passion-prejudice"

review consistent with constitutional requirements. We perceive

no reason to modify our previously-expressed views rejecting

this argument. See Bell, 264 Va. at 203, 563 S.E.2d at 716;

Lenz, 261 Va. at 459, 544 S.E.2d at 304; Satcher v.

Commonwealth, 244 Va. 220, 228, 421 S.E.2d 821, 826 (1992),

cert. denied, 507 U.S. 933 (1993).

IV. CHALLENGES TO RESENTENCING PROCEDURES AND TESTIMONY

Initially, we observe that Johnson argues that the

resentencing proceeding violated his constitutional protection

against double jeopardy. He bases this claim chiefly on the

affidavits executed by two jurors at his first trial stating

that they would not have voted for the death penalty if they had

been properly instructed regarding Johnson's ineligibility for

parole. Johnson also argues that his resentencing violated

22
double jeopardy principles because the prosecution acted in "bad

faith" at his first trial by failing to require that the jury be

instructed correctly regarding the parole eligibility issue. We

do not reach the merits of these arguments, however, because

Johnson did not argue during the resentencing proceedings any

issue regarding double jeopardy or "bad faith" by the

prosecution. See Rule 5:25.

Johnson next argues that the resentencing procedure

provided in Code § 19.2-264.3 violates his constitutional right

of due process by improperly shifting the burden of proof,

thereby requiring him to prove that he should receive a life

sentence instead of the death penalty. Johnson further contends

that the jury at the resentencing proceeding was not able to

"gain the same feel" for the case due to his inability to

challenge the Commonwealth's evidence of guilt and to raise

issues of "residual doubt." Johnson argues, therefore, that the

jury at his resentencing proceeding was more biased in favor of

imposing the death penalty, and that the circuit court should

have imposed a life sentence based on these defects in the

statutory scheme, as well as on the two juror affidavits from

his first trial. We disagree with Johnson's arguments.

Code § 19.2-264.3 provides, in relevant part:

If the sentence of death is subsequently set
aside or found invalid, and the defendant or the
Commonwealth requests a jury for purposes of

23
 resentencing, the court shall impanel a different jury
on the issue of penalty.

The resentencing procedure set forth in this statute did

not violate Johnson's due process rights. During any

resentencing proceeding conducted under the statute, the

Commonwealth bears the burden of proving beyond a reasonable

doubt that the death sentence should be imposed based on

evidence of the defendant's "future dangerousness" or on the

"vileness" of the crime committed, or on proof of both

aggravating factors. Because the issue of a defendant's guilt

has already been decided at the guilt phase of a capital murder

trial, the defendant is not permitted to challenge the

Commonwealth's evidence of guilt during the penalty phase,

whether in the original trial or in a resentencing proceeding.

See Atkins v. Commonwealth, 260 Va. 375, 379-80, 534 S.E.2d 312,

314-15 (2000) (Atkins II), rev'd on other grounds, 536 U.S. 304

(2002); Stockton v. Commonwealth, 241 Va. 192, 210-11, 402

S.E.2d 196, 206-07, cert. denied, 502 U.S. 902 (1991); Frye v.

Commonwealth, 231 Va. 370, 393-94, 345 S.E.2d 267, 283 (1986).

For the same reason, a defendant may not argue during the

penalty phase proceedings that there is a "residual doubt"

concerning his guilt. See Atkins II, 260 Va. at 379-80, 534

S.E.2d at 314-15; Lilly v. Commonwealth, 255 Va. 558, 579, 499

24
S.E.2d 522, 537 (1998), rev'd on other grounds, 527 U.S. 116

(1999); Stockton, 241 Va. at 211, 402 S.E.2d at 207.

All the evidence presented at Johnson's resentencing

proceeding was relevant to the issues of "future dangerousness"

and "vileness." In addition to the evidence presented by the

Commonwealth, the jury heard extensive evidence from witnesses

who testified on Johnson's behalf. Therefore, we find no merit

in Johnson's argument that the resentencing proceeding in this

case was "biased," requiring the circuit court to impose a life

sentence in place of the jury verdict.

We also observe that in Johnson's habeas corpus petition

filed after his original direct appeal, Johnson requested, among

other things, a new sentencing proceeding. Having received the

remedy he sought, Johnson cannot complain now that his request

was granted. See Bell, 264 Va. at 185, 563 S.E.2d at 705; Board

of Supervisors v. Sentry Ins. A Mut. Co., 239 Va. 622, 624 n.*,

391 S.E.2d 273, 274 n.* (1990); Newsom v. Commonwealth, 207 Va.

844, 847, 153 S.E.2d 235, 237 (1967).

Johnson further argues that the circuit court erred in

allowing the Commonwealth to present both live and transcribed

testimony while prohibiting Johnson from challenging the

veracity of that testimony before the jury. This argument,

however, is partially inconsistent with earlier arguments he

made in the circuit court. As stated above, before his

25
resentencing proceeding, Johnson initially asked the circuit

court to prohibit the Commonwealth from presenting its evidence

through "live" witnesses, rather than from transcripts of the

original trial. Later in the proceedings, however, Johnson

changed his position and objected to the Commonwealth's use of

transcripts, claiming that such use would eliminate his ability

to cross-examine the witnesses.

We conclude that Johnson's re-framed argument on appeal has

no merit. With regard to the admission of transcribed testimony

from the first trial, we observe that Tiffany Burgess was the

only witness whose testimony was presented in this manner. We

hold that the admission of such transcribed testimony at a

resentencing proceeding conducted under Code § 19.2-264.3 is a

matter submitted to the circuit court's discretion. See Hills

v. Commonwealth, 262 Va. 807, 811, 553 S.E.2d 722, 724 (2001);

Stockton, 241 Va. at 205-07, 402 S.E.2d at 203-05; Fogg v.

Commonwealth, 215 Va. 164, 168, 207 S.E.2d 847, 850 (1974).

Here, the circuit court did not abuse its discretion in

admitting Burgess' testimony because it was relevant to the

issue of Johnson's "future dangerousness," and Johnson had been

afforded a full opportunity to cross-examine her entire

testimony at the original trial.

We also conclude that the trial court did not abuse its

discretion in allowing the Commonwealth to present "live"

26
witnesses and in restricting Johnson from cross-examining those

witnesses on matters related to Johnson's guilt. The jury at

the resentencing proceeding was required to consider the

circumstances of the murder in determining whether the

Commonwealth had proved the statutory predicates of "future

dangerousness" or "vileness," and in ascertaining the proper

penalty to be imposed for the crime. See Code § 19.2-264.2. In

addition, because Johnson's guilt was not a matter at issue in

the resentencing proceeding, the circuit court properly

restricted Johnson from cross-examining the witnesses regarding

his commission of the murder.

V. CLAIM OF MENTAL RETARDATION

Johnson argues that because he presented extensive evidence

of "mental illness" at the resentencing proceeding, he is

entitled under Code § 8.01-654.2 to have his case remanded to

the circuit court for a jury to consider whether he is mentally

retarded. He contends that he has presented sufficient

evidence, including evidence of his low I.Q. scores and his DID,

which demonstrates that his claim is not frivolous and that he

may suffer from mental retardation "as it is commonly defined."

Thus, he asserts that his case should be remanded to the circuit

court for a determination whether he is mentally retarded under

Code § 19.2-264.3:1.1 and this Court's most recent opinion in

27
Atkins, 266 Va. 73, 581 S.E.2d 514 (2003) (Atkins IV). We

disagree with Johnson's arguments.

After the circuit court entered final judgment in November

2002 imposing the death sentence fixed by the jury in the

resentencing proceeding, the General Assembly enacted Code

§§ 8.01-654.2 and 19.2-264.3:1.1. These statutes provide a

mandatory procedure for the consideration of issues of mental

retardation raised by defendants in capital murder cases. Code

§ 8.01-654.2 provides, in relevant part:

[A]ny person under sentence of death whose sentence
became final in the circuit court before April 29,
2003, and who desires to have a claim of his mental
retardation presented to the Supreme Court, shall do
so by one of the following methods: (i) if the person
has not commenced a direct appeal, he shall present
his claim of mental retardation by assignment of error
and in his brief in that appeal . . . . A person
proceeding under this section shall allege the factual
basis for his claim of mental retardation. The
Supreme Court shall consider a claim raised under this
section and if it determines that the claim is not
frivolous, it shall remand the claim to the circuit
court for a determination of mental retardation;
otherwise the Supreme Court shall dismiss the
petition. The provisions of §§ 19.2-264.3:1.1 and
19.2-264.3:1.2 shall govern a determination of mental
retardation made pursuant to this section.

Code § 19.2-264.3:1.1(A) states, in relevant part:

"Mentally retarded" means a disability, originating
before the age of 18 years, characterized concurrently
by (i) significantly subaverage intellectual
functioning as demonstrated by performance on a
standardized measure of intellectual functioning
administered in conformity with accepted professional
practice, that is at least two standard deviations
below the mean and (ii) significant limitations in

28
 adaptive behavior as expressed in conceptual, social
and practical adaptive skills.

In Atkins IV, we explained that the General Assembly

enacted these statutes after the United States Supreme Court's

decision in Atkins III, which gave the individual states the

task of developing procedures for enforcing constitutional

restrictions on the execution of the death penalty. Atkins IV,

266 Va. at 79, 581 S.E.2d at 517. Because Johnson's sentence of

death became final in the circuit court before April 29, 2003,

we consider pursuant to Code § 8.01-654.2 whether his claim of

mental retardation is frivolous.

In Code § 19.2-264.3:1.1(A), the General Assembly has

articulated a two-fold test that a criminal defendant is

required to meet to establish that he is mentally retarded.

Thus, a criminal defendant who seeks to demonstrate to this

Court that his claim of mental retardation is not frivolous must

be able to point to credible evidence in the record supporting

the requirements set forth in the statutory test.

In the present case, we hold that Johnson's claim of mental

retardation is frivolous. Johnson's own evidence directly

refutes his assertion of mental retardation. As stated above,

his expert witness, Dungee-Anderson, testified that Johnson is

not mentally retarded. The record also shows that Johnson was

administered two standardized tests, commonly known as I.Q.

29
tests, which met the descriptive criteria of Code § 19.2-

264.3:1.1(A)(i). His scores of 75 and 78 on these I.Q. tests

exceed the score of 70 that the General Assembly has chosen as

the threshold score below which one may be classified as being

mentally retarded. See id.; American Psychiatric Association,

Diagnostic and Statistical Manual of Mental Disorders, 39 (4th

ed. 1994) (DSM-IV).

We further observe that Johnson conceded at oral argument

in this appeal that the record contains no evidence showing that

his alleged DID condition is indicative of mental retardation as

defined by the General Assembly in Code § 19.2-264.3:1.1(A).

Therefore, we decline Johnson's request that a jury consider his

allegation of mental retardation because the present record

shows as a matter of law that Johnson is unable to meet the

statutory definition of "mentally retarded."

Johnson argues, nevertheless, that based on the Supreme

Court's decision in Atkins III barring execution of the mentally

retarded, the circuit court erred in refusing to impose a life

sentence at his resentencing on the capital murder conviction.

We find no merit in this assertion. Because we have concluded

that Johnson's claim of mental retardation is frivolous, we

necessarily conclude that the circuit court did not err in

refusing to impose a life sentence based on Johnson's

unsupported allegation.

30
 VI. CHALLENGE TO DEATH PENALTY IMPOSED ON JUVENILE DEFENDANT

Johnson argues that the circuit court should have imposed a

life sentence because he was 16 years old at the time of these

offenses. Johnson acknowledges that the United States Supreme

Court, in Stanford v. Kentucky, 492 U.S. 361, 380 (1989), upheld

the death sentence imposed on a capital murder defendant who was

16 years old at the time of the offense. Nevertheless, Johnson

contends that the United States Supreme Court has indicated by

its Atkins III decision a willingness to depart from some of its

other precedent rejecting Eighth Amendment challenges of "cruel

and unusual punishment." Johnson contends that this Court

should apply a similar analysis as that employed in Atkins III

and conclude that under "evolving standards of decency" and

recent trends in the various states, the execution of juvenile

defendants also constitutes "cruel and unusual punishment" in

violation of the Eighth Amendment. * We disagree with Johnson's

arguments.

We apply the holding of Stanford that the Eighth

Amendment's prohibition against cruel and unusual punishment

does not forbid the imposition of the death sentence on a person

who commits capital murder at 16 or 17 years of age. 492 U.S.

*
We note that in this appeal Johnson does not challenge
under any provision of the Constitution of Virginia the
imposition of the death penalty for 16 and 17-year-old persons
convicted of capital murder.

31
at 380; accord Jackson, 255 Va. at 647, 499 S.E.2d at 552;

Wright v. Commonwealth, 245 Va. 177, 181, 427 S.E.2d 379, 383

(1993), vacated on other grounds, 512 U.S. 1217 (1994). In the

absence of such a constitutional prohibition, we hold that any

further determination whether 16 and 17-year-old persons

convicted of capital murder should be eligible to receive the

death penalty in Virginia is a matter to be decided by the

General Assembly, not by the courts.

In reaching this conclusion, we directly reject Johnson's

argument that we should anticipate that the United States

Supreme Court may reexamine and reverse its holding in Stanford

under an analysis similar to the one that the Court applied in

Atkins III. When a precedent of the Supreme Court has direct

application in a case, we are not at liberty to ignore that

precedent in favor of other Supreme Court decisions employing a

similar analysis in a different factual and legal context. See

Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S.

477, 484 (1989); see also United States v. Hatter, 532 U.S. 557,

567 (2001); Hohn v. United States, 524 U.S. 236, 252 (1998). As

the Supreme Court has stated, courts "should follow the case

which directly controls, leaving to [the Supreme] Court the

prerogative of overruling its own decisions." Rodriguez de

Quijas, 490 U.S. at 484.

32
 We also find no merit in Johnson's argument that he

received the death penalty in part based on crimes he committed

before he reached 16 years of age. Johnson raped and murdered

Hope Hall when he was 16 years old and he was sentenced to death

for the capital murder of Hall, and for no other crime. The

history of his prior criminal conduct was properly placed before

the jury pursuant to Code § 19.2-264.2, because the jury was

required to determine the appropriate punishment for Johnson's

act of capital murder, including the issue whether Johnson

represented a continuing serious threat to society.

VII. SENTENCE REVIEW

Under Code § 17.1-313(C), we review the death sentence

imposed on Johnson to determine whether it (1) was imposed under

the influence of passion, prejudice, or any other arbitrary

factor; or (2) is excessive or disproportionate to the penalty

imposed in similar cases, considering both the crime and the

defendant.

Passion and Prejudice

Johnson does not contend that the jury verdict fixing the

death penalty reflects the influence of passion, prejudice, or

any other arbitrary factor. Nevertheless, we have conducted an

independent review of the record, and we conclude that the jury

verdict does not reflect the influence of any such impermissible

factors.

33
 Excessiveness and Proportionality

Johnson does not contend in this appeal that his sentence

is disproportionate and excessive when compared to the penalties

imposed on other defendants who committed similar offenses.

Notwithstanding this fact, we are directed by Code § 17.1-

313(C)(2) to make an independent determination regarding this

question. In conducting our proportionality review, we must

determine "whether other sentencing bodies in this jurisdiction

generally impose the supreme penalty for comparable or similar

crimes, considering both the crime and the defendant." Jenkins

v. Commonwealth, 244 Va. 445, 461, 423 S.E.2d 360, 371 (1992),

cert. denied, 507 U.S. 1036 (1993); accord Remington v.

Commonwealth, 262 Va. 333, 362, 551 S.E.2d 620, 638 (2001),

cert. denied, 535 U.S. 1062 (2002); Schmitt v. Commonwealth, 262

Va. 127, 152, 547 S.E.2d 186, 203 (2001), cert. denied, 534 U.S.

1094 (2002); Hedrick v. Commonwealth, 257 Va. 328, 342, 513

S.E.2d 634, 642, cert. denied, 528 U.S. 952 (1999).

We compare the record in the present case with the records

of our other capital murder cases, including those cases in

which a life sentence has been imposed. We have reviewed the

records of all capital cases considered by this Court under Code

§ 17.1-313(E). Because the jury in this resentencing proceeding

imposed the death sentence based on both statutory predicates of

future dangerousness and vileness, we give particular

34
consideration to other capital murder convictions in which the

death sentence was based on both predicates.

Johnson's age at the time he raped and murdered Hope Hall

is only one factor that we consider in determining whether

juries generally impose the death penalty for similar crimes.

The record also shows that Johnson committed five rapes within a

period of seven months, and that he stabbed one of these rape

victims.

Johnson inflicted multiple stab wounds on Hope Hall in the

course of murdering her. These numerous stab wounds inflicted

on Hall are indicative of the vileness of the present murder and

represent the culmination of a pattern of escalating violence

over the course of Johnson's commission of the numerous rapes

referenced above.

Juries in this Commonwealth generally, with some

exceptions, have imposed the death sentence for convictions of

capital murder based on findings of vileness and future

dangerousness in which the underlying predicate offenses

involved violent sexual crimes and the defendant had committed

violent crimes on other occasions. See, e.g., Morrisette, 264

Va. 386, 569 S.E.2d 47; Vinson v. Commonwealth, 258 Va. 459, 522

S.E.2d 170 (1999), cert. denied, 530 U.S. 1218 (2000); Hedrick,

257 Va. 328, 513 S.E.2d 634; Cherrix, 257 Va. 292, 513 S.E.2d

642; Payne v. Commonwealth, 257 Va. 216, 509 S.E.2d 293 (1999);

35
Barnabei v. Commonwealth, 252 Va. 161, 477 S.E.2d 270 (1996),

cert. denied, 520 U.S. 1224 (1997); Wilson v. Commonwealth, 249

Va. 95, 452 S.E.2d 669, cert. denied, 516 U.S. 841 (1995);

Williams v. Commonwealth, 248 Va. 528, 450 S.E.2d 365 (1994),

cert. denied, 515 U.S. 1161 (1995); Breard v. Commonwealth, 248

Va. 68, 445 S.E.2d 670, cert. denied, 513 U.S. 971 (1994);

Mueller v. Commonwealth, 244 Va. 386, 422 S.E.2d 380 (1992),

cert. denied, 507 U.S. 1043 (1993); Spencer v. Commonwealth, 238

Va. 295, 384 S.E.2d 785 (1989), cert. denied, 493 U.S. 1093

(1990); Coleman v. Commonwealth, 226 Va. 31, 307 S.E.2d 864

(1983), cert. denied, 465 U.S. 1109 (1984). Based on this

review, we hold that Johnson's death sentence is neither

excessive nor disproportionate to penalties imposed by other

sentencing bodies in this Commonwealth, considering both the

crime and the defendant.

VIII. CONCLUSION

We find no reversible error in the circuit court's

judgment. Having reviewed Johnson's death sentence under the

provisions of Code § 17.1-313, we decline to commute the

sentence of death. Accordingly, we will affirm the circuit

court's judgment.

Affirmed.

36