Atkins v. Commonwealth

Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ. and Carrico, 1 S.J.

DARYL RENARD ATKINS

v. Record No. 000395 OPINION BY JUSTICE CYNTHIA D. KINSER
June 6, 2003
COMMONWEALTH OF VIRGINIA

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

This capital murder case is presently before this

Court on remand from the Supreme Court of the United

States. Atkins v. Virginia, 536 U.S. 304, 321 (2002)

(Atkins III). The Supreme Court reversed this Court’s

judgment in Atkins v. Commonwealth, 260 Va. 375, 534 S.E.2d

312 (2000) (Atkins II), and held that “the Constitution

‘places a substantive restriction on the State’s power to

take the life’ of a mentally retarded offender.” Atkins

III, 536 U.S. at 321 (quoting Ford v. Wainwright, 477 U.S.

399, 405 (1986)).

The defendant, Daryl Renard Atkins, was convicted in

the Circuit Court of York County of the capital murder of

Eric Michael Nesbitt and was sentenced to death. We

affirmed his conviction but remanded the case to the

circuit court for a new penalty proceeding. Atkins v.

1
Chief Justice Carrico presided and participated in
the hearing and decision of this case prior to the
effective date of his retirement on January 31, 2003.
Commonwealth, 257 Va. 160, 180, 510 S.E.2d 445, 457 (1999)

(Atkins I). At re-sentencing, a different jury again fixed

Atkins’ punishment at death, and the circuit court imposed

the death penalty in accordance with the jury verdict.

Atkins II, 260 Va. at 378-79, 534 S.E.2d at 314.

On appeal from the second penalty proceeding, Atkins

argued, among other things, that this Court, as part of our

proportionality review, see Code § 17.1-313(C), should

commute his sentence of death to life imprisonment because

he is mentally retarded. Atkins II, 260 Va. at 386, 534

S.E.2d at 318. We rejected his argument and affirmed the

judgment of the circuit court. 2 Id. at 390, 534 S.E.2d at

321. Based on the record before us and considering “both

the crime and the defendant,” Code § 17.1-313(C), we could

not say that Atkins’ death sentence was “excessive or

disproportionate to sentences generally imposed in this

Commonwealth for capital murders comparable to Atkins’

murder of Nesbitt.” Atkins II, 260 Va. at 390, 534 S.E.2d

at 321. Nor were we willing to commute Atkins’ sentence of

death to life imprisonment because of his IQ score. Id.

2
Atkins II was decided by a divided Court. Atkins II,
260 Va. at 390-96, 534 S.E.2d 321-24 (Hassell, J., joined
by Koontz, J., concurring in part and dissenting in part);
id. at 396-97, 534 S.E.2d at 324-25 (Koontz, J., joined by
Hassell, J., dissenting).

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 Thereafter, Atkins successfully petitioned the Supreme

Court of the United States for a writ of certiorari.

Atkins v. Virginia, 533 U.S. 976 (2001) (order granting

writ of certiorari). The Supreme Court concluded that a

national legislative consensus against the execution of

mentally retarded offenders had developed since its

decision in Penry v. Lynaugh, 492 U.S. 302 (1989). Atkins

III, 536 U.S. at 316. The Court identified two reasons

consistent with that consensus to justify a categorical

exclusion of the mentally retarded from execution. Id. at

318. First, neither of the justifications for recognizing

the death penalty, retribution and deterrence, applies to

mentally retarded offenders. Id. at 318-19. Second, the

diminished capacity of mentally retarded offenders places

them at greater risk of wrongful execution. Id. at 320-21.

Thus, the Supreme Court reversed our judgment in Atkins II

and remanded the case to this Court for “further

proceedings not inconsistent with” its opinion. Atkins

III, 536 U.S. at 321.

Before addressing what further proceedings are

necessary and would be consistent with the Supreme Court’s

decision, we must first determine whether the Supreme Court

decided that Atkins is, in fact, mentally retarded, thus

requiring this Court to commute his sentence of death to

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life imprisonment. We conclude that the Supreme Court did

not make that determination, nor has the question of

Atkins’ mental retardation been answered at any point in

his case.

In Atkins II, after summarizing the testimony of the

two forensic clinical psychologists who testified at the

re-sentencing hearing, we stated that the jury “heard

extensive, but conflicting, testimony from [the

psychologists] regarding Atkins’ mental retardation.” 260

Va. at 388, 534 S.E.2d at 320. Continuing, we held that

“[t]he 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.” Id. The Supreme Court

did not reverse that portion of our holding in Atkins II.

Nor did the Supreme Court state whether the issue of mental

retardation is a question of fact or law.

The Supreme Court did, however, state that, “[t]o the

extent there is serious disagreement about the execution of

mentally retarded offenders, it is in determining which

offenders are in fact retarded.” Atkins III, 536 U.S. at

318-19. Acknowledging that the Commonwealth of Virginia

disputes whether Atkins suffers from mental retardation,

the Court noted that “[n]ot all people who claim to be

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mentally retarded will be so impaired as to fall within the

range of mentally retarded offenders about whom there is a

national consensus.” Id. at 317. But, the Court did not

decide which defendants fit within that range or whether

Atkins does, nor did it define the term “mental

retardation.” Instead, the Court left “ ‘to the States the

task of developing appropriate ways to enforce the

constitutional restriction upon its execution of

sentences.’ ” Id. (quoting Ford, 477 U.S. at 405).

We also note that the jury at the re-sentencing

hearing did not resolve the question of Atkins’ mental

retardation. Pursuant to the provisions of Code § 19.2-

264.4(B)(vi), the jury was required to consider evidence of

mental retardation in mitigation of capital murder, but it

was not required to make a definitive determination whether

Atkins suffers from mental retardation. As we pointed out

in Atkins II, the re-sentencing jury was instructed “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.” 260 Va. at

388, 534 S.E.2d at 320.

Although Atkins acknowledges on brief that the Supreme

Court did not make an explicit finding with regard to

whether he suffers from mental retardation, he,

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nevertheless, argues that the Court implicitly concluded

that he is mentally retarded. Otherwise, according to

Atkins, he would not have had standing to raise the

question whether the Eighth Amendment proscribes execution

of a mentally retarded offender and the Supreme Court’s

decision would be an advisory opinion. We do not agree.

In granting Atkins’ petition for a writ of certiorari,

the Supreme Court decided to revisit the legal issue that

it had previously considered in Penry and, accordingly,

framed the issue as “[w]hether the execution of mentally

retarded individuals convicted of capital crimes violates

the Eighth Amendment[.]” Atkins v. Virginia, 534 U.S. 809

(2001)(amended order granting writ of certiorari). Atkins

had standing to raise that constitutional issue because of

the allegations, evidence, and argument presented in the

circuit court, and on appeal to this Court, that he is

mentally retarded. He demonstrated a “ ‘personal stake in

the outcome[,]’ ” thereby “ ‘assur[ing] that concrete

adverseness which sharpens the presentation of issues’

necessary for the proper resolution of constitutional

questions.” City of Los Angeles v. Lyons, 461 U.S. 95, 101

(1983) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).

The Supreme Court resolved the legal issue by

announcing a new rule of constitutional law and then

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remanded Atkins’ case to this Court for further proceedings

not inconsistent with that new rule. Since the

controverted factual question whether Atkins suffers from

mental retardation has never been resolved, any further

proceeding, consistent with the Supreme Court’s remand,

must be one in which that question is answered and the

Eighth Amendment prohibition against the execution of

mentally retarded offenders is applied to that factual

determination. Such a proceeding will not render the

Supreme Court’s decision in Atkins III advisory but will

implement that decision. 3

The Supreme Court’s remand in this case is

procedurally similar to the remand in Ford v. Wainwright.

There, the Supreme Court held that the Eighth Amendment

prohibits a State from executing an insane prisoner. 477

U.S. at 410. The Court then stated that the prisoner’s

“allegation of insanity in his habeas corpus petition, if

proved, therefore, would bar his execution.” Id. Although

the Court found that the “State’s procedures for

3
Our conclusion is not altered by the Commonwealth’s
argument on brief in the Supreme Court that Atkins is not a
mentally retarded individual and that, therefore, any
decision by that Court would be an advisory opinion. The
Court obviously rejected the Commonwealth’s position but,
in its role as an appellate court, did not resolve the
underlying disputed factual issue regarding Atkins’ mental
retardation.

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determining sanity [were] inadequate to preclude federal

redetermination of the constitutional issue[,]” it,

nevertheless, left to “the State the task of developing

appropriate ways to enforce the constitutional restriction

upon its execution of sentences.” Id. at 416-17. The

Court then remanded the proceeding to a federal district

court for a de novo evidentiary hearing on the question of

the prisoner’s competence to be executed. Id. at 418. The

Supreme Court does not “deny standing simply because the

‘appellant, although prevailing . . . on the federal

constitutional issue, may or may not ultimately win.’ ”

Orr v. Orr, 440 U.S. 268, 273 (1979) (quoting Stanton v.

Stanton, 421 U.S. 7, 18 (1975)).

Turning now to consider what type of proceeding is

necessary and consistent with the Supreme Court’s opinion,

we note that the General Assembly, in response to the

Supreme Court’s giving to the States the task of developing

an appropriate way to enforce its constitutional

restriction on the execution of the death penalty, enacted

emergency legislation that is already effective. See Code

§§ 8.01-654.2, 18.2-10, 19.2-175, 19.2-264.3:1, 19.2-

264.3:1.1, 19.2-264.3:1.2, 19.2-264.3:3, and 19.2-264.4.

In that legislation, the General Assembly, among other

things, defined the term “mentally retarded.”

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

Code § 19.2-264.3:1.1(A). The General Assembly also

provided that a defendant has the burden of proving mental

retardation by a preponderance of the evidence. Code

§ 19.2-264.3:1.1(C).

In light of this legislation, which is applicable to

Atkins’ case, see Code § 8.01-654.2, the Supreme Court’s

mandate requiring further proceedings not inconsistent with

its opinion, and the fact that the question of Atkins’

mental retardation has never been answered, we conclude

that this case must be remanded to the Circuit Court of

York County for a hearing on the sole issue of whether

Atkins is mentally retarded as defined in Code § 19.2-

264.3:1.1(A). In accordance with the provisions of Code

§ 8.01-654.2, which require this Court to consider a claim

of mental retardation presented by a person sentenced to

death before the effective date of the emergency

legislation and to determine whether the claim is

frivolous, and upon reviewing the evidence of mental

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retardation presented at the re-sentencing hearing in

Atkins II, 260 Va. at 386-90, 534 S.E.2d at 319-21, we find

that Atkins’ claim of mental retardation is not frivolous.

Because Atkins first presented his claim to this Court on

direct appeal from the re-sentencing hearing and the case

is now being remanded to the circuit court where the

sentence of death was imposed by a jury, “the circuit court

shall empanel a new jury for the sole purpose of making a

determination of mental retardation.” Code § 8.01-654.2.

The hearing should conform to the requirements of the

General Assembly’s emergency legislation.

Thus, we will remand this case to the circuit court

for further proceedings consistent with this opinion and

with the opinion of the Supreme Court in Atkins III.

Remanded.

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