COMMONWEALTH OF VA
January 8, 1999
Record Nos. 981477 & 981478
DARYL RENARD ATKINS
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF YORK COUNTY
N. Prentis Smiley, Jr., Judge
PRESENT: All the Justices
OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.
In this appeal, we review the capital murder
conviction and death sentence imposed by a jury on Daryl Renard
On November 19, 1996, indictments were returned
against Atkins charging that on August 17, 1996, Atkins abducted,
robbed, and murdered Eric Michael Nesbitt in the commission of
the robbery. Code Sects. 18.2-48, -58, and -31(4). Atkins
was also charged with use of a firearm while committing each of
these offenses. Code Sect. 18.2-53.1.
Atkins filed a pre-trial motion to have the
Virginia capital murder and death penalty statutes declared
unconstitutional. Along with this motion, Atkins filed an
extensive brief containing multiple theories for his assertion
that the substantive criminal law and procedural statutes
governing capital crimes in Virginia are constitutionally
deficient. The trial court, relying on conclusive statements of
this Court supporting the constitutionality of these statutes,
overruled this motion. The trial court also denied Atkins
motion for additional peremptory juror challenges.
In a motion in limine, Atkins sought to limit
the introduction by the Commonwealth of DNA evidence related to
blood samples found in Nesbitts truck which indicated that
Atkins and Nesbitt were the sources of that blood. Atkins
asserted that this evidence was not sufficiently credible because
William A. Jones was also an occupant of the truck and his blood
had not been subjected to the DNA testing. In the alternative,
Atkins sought to have a blood sample obtained from Jones and DNA
tests performed thereon to establish whether Jones was a
potential source for the blood found in the truck. The trial
court received a proffer from the Commonwealth that there was no
evidence that Jones had been wounded and, thus, that Jones was
excluded as a possible source of the blood. On this ground, the
trial court denied the motion.
Jury selection began on February 9, 1998 and
continued the next day. Starr D. Christian, a 19-year-old black
female, was called from the venire and questioned by the trial
court and counsel for the Commonwealth and Atkins. The trial
court asked Christian if she or any member of her immediate
family had "ever been the victim of a violent crime."
Christian responded in the negative. Atkins counsel
subsequently asked Christian if she or any member of her
immediate family had "ever been the victim of a crime, not
just a violent crime, but a crime." Christian responded that
her brothers car had been broken into on one occasion.
Neither party challenged Christian for cause, and the trial court
retained her in the venire for final jury selection. Thereafter,
the Commonwealth used one of its four peremptory strikes to
remove Christian from the jury. Code Sect.19.2-262. Atkins
asserted that Christian had been struck based upon her race in
violation of the ruling in Batson v. Kentucky, 476 U.S.
79, 89 (1986).
Responding to Atkins challenge, the
Commonwealth initially asserted that it struck Christian because
she was young and unmarried and, thus, would be less likely, in
its view, to have empathy for the victim.  The
Commonwealth further noted that it had acquired information that,
contrary to her testimony, Christian had been the victim of a
grand larceny within the past year. The Commonwealth provided
defense counsel with a copy of an offense report that listed
Christian as the victim and complainant in the theft of a ring.
Based upon this incident, the Commonwealth ultimately asserted
Christians lack of truthfulness as its race-neutral reason
for removing her from the jury.
Atkins contended that a peremptory strike
premised on the age of the prospective juror might also
"run afoul of the Batson ruling." Atkins
further contended that the Commonwealth gave "no indication
nor were we told that there was a concern about
[Christians] truthfulness" at the time she was
Noting its express concern over "the
apparent oversight or flagrant incorrect answer to the
Courts question and to counsels question relative to
victims of a crime," the trial court found that the
Commonwealth had stated an adequate race-neutral reason for
striking Christian from the jury. Accordingly, the trial court
overruled Atkins Batson challenge.
A. Guilt Phase
We will review the evidence in the light most
favorable to the Commonwealth. Clagett v. Commonwealth,
252 Va. 79, 84, 472 S.E.2d 263, 265 (1996), cert. denied,
519 U.S. 1122 (1997). On the afternoon of August 16, 1996,
William A. Jones  and Atkins were "drinking and smoking weed"
at the home Atkins shared with his father. During the course of
that afternoon, "[a] couple of [Atkins] friends came
by, in and out." On several occasions during the afternoon
and later that evening, those present pooled their money, and
Atkins and Jones walked to a nearby convenience store to buy beer
or were driven by one of Atkins friends to an ABC store to
That evening between 10:30 and 11:00 p.m., a
friend of Atkins, known to Jones only as "Mark,"
arrived at the home. Mark had brought a handgun with him and gave
it to Atkins after Atkins said "that he wanted to use it, he
would bring it back in the morning." A short time later,
Atkins and Jones again walked to the convenience store to buy
beer. Atkins told Jones that he did not have enough money and was
going to "panhandle and get some change up." Atkins had
the handgun he had borrowed from Mark tucked behind the waistband
of his pants, partially concealed by his belt buckle.
While Jones waited, Atkins approached several
people to ask for money and collected some from one or two.
Nesbitt, who was a stranger to Atkins, arrived at the store in
his truck at approximately 11:30 p.m. After a brief conversation
with Atkins, Nesbitt went into the store. When Nesbitt returned
to his truck and was preparing to leave the parking lot, Atkins
"whistled" at him and Nesbitt stopped his truck.
Atkins went to the passengers side of the
truck and Jones went to the drivers side. Atkins then
pointed the handgun at Nesbitt and ordered Nesbitt to
"[m]ove over, let my friend drive." Jones entered the
truck from the drivers side and Atkins entered from the
As Jones drove the truck away from the
convenience store, Atkins demanded that Nesbitt surrender his
wallet. Atkins removed $60 from the wallet and was returning it
to Nesbitt when he noticed a bankcard inside the wallet. On
Atkins instruction, Jones drove to a branch of Crestar Bank
where Atkins forced Nesbitt to withdraw $200 using the bankcard
from the banks drive-through automatic teller machine. The
security camera in this automatic teller machine recorded the
truck arriving at the bank shortly after midnight on August 17,
1996. The videotape produced by the camera showed that Jones was
driving, Atkins was in the passenger seat, and Nesbitt was
between them. Nesbitt had to lean across Jones in order to
operate the machine. During this entire time, Atkins kept the
handgun pointed at Nesbitt.
Jones then drove to the parking lot of a nearby
school where he and Atkins discussed what they should do with
Nesbitt. Jones urged Atkins to "just tie him up so we can
get away." Atkins told Jones he knew of a place near his
grandfathers house in Yorktown where they could leave
Nesbitt and directed Jones to drive toward Yorktown on Interstate
64. Nesbitt asked them "just dont hurt me" and
made no attempt to escape.
Upon arriving in a secluded area of York County
off the Lee Hall exit of Interstate 64, Atkins exited the truck
and ordered Nesbitt to do the same. "Nesbitt stepped out of
the vehicle and probably took two steps" when Atkins began
shooting him. Jones attempted to exit the truck because he feared
that some of the shots were "coming in the truck."
Unable to open the drivers side door, Jones rolled down the
drivers side window and "jumped" out of the
Jones began to struggle with Atkins for the
handgun and Atkins was shot in the leg during that struggle.
After Jones obtained the handgun, he drove Atkins to the
emergency room of a local hospital, leaving Nesbitts dead
body at the scene of the shooting. Outside the emergency room,
Jones asked Atkins for some of the money that had been taken from
Nesbitt and then drove away alone in Nesbitts truck.
After leaving Atkins at the emergency room,
Jones drove to a motel in Newport News where he abandoned
Nesbitts truck. Jones spent the next several days moving
from motel to motel. He cut his hair in an attempt to disguise
his appearance. Jones subsequently returned to the first motel,
where police, who previously had discovered the abandoned truck
at the motel and were maintaining a surveillance of the area,
arrested him. The handgun was not found in the truck and was
Garland S. Clay discovered Nesbitts body
at the crime scene sometime after 3:45 a.m. on August 17, 1996
and contacted police. Investigator Frederick T. Lyons, a member
of the major crimes section of the York County Sheriffs
Office, arrived at the crime scene at 5:15 a.m.
Lyons discovered six shell casings near
Nesbitts body. After determining that Nesbitt had an
account at Crestar Bank, Lyons learned that two withdrawals from
the account had been made at Crestar automatic teller machines
the previous night, one for $60 and one for $200. Lyons obtained
still photographs and the videotapes from the automatic teller
machines security cameras and distributed copies to local
police and media.
After the media broadcast the photographs,
several callers to a "crime line phone number"
identified Jones as the driver of Nesbitts truck. One
caller told police that "a person that Mr. Jones runs with
was a Daryl Atkins." Based upon these identifications, Lyons
obtained an arrest warrant for Jones. After interviewing
Jones father and the fathers girlfriend, Lyons
"learned that Mr. Atkins was with William Jones," and
obtained Atkins address. Finding Atkins at home, Lyons was
able to identify Atkins from the security camera photographs and
placed him under arrest.
Dr. Leah L. E. Bush, an Assistant Chief Medical
Examiner for the Commonwealth, performed an autopsy on
Nesbitts body. This autopsy revealed that Nesbitt had
sustained eight separate gunshot wounds to the thorax, chest,
abdomen, arms and legs. Several of the bullets exited and
reentered the body. Three of the gunshot wounds were lethal.
However, Nesbitt could have lived for several minutes before
"the bleeding was to the point where his blood pressure
would not support consciousness and life." Three bullets
were recovered during the autopsy.
Additional forensic evidence showed that the
six shell casings recovered from the crime scene had all been
fired from the same weapon, as were the three bullets recovered
from Nesbitts body, a bullet recovered from Nesbitts
truck, and a bullet recovered from Atkins leg. Bloodstains
found on the passenger seat and interior passenger side door of
Nesbitts truck were identified as consistent with either
Nesbitts or Atkins blood types. None of the tested
samples was identified as likely to have come from another
Subsequent to his arrest and prior to his
trial, while an inmate in the York County jail, Atkins shared a
cell with Stephen R. Burton. According to Burton, Atkins told him
"[t]hat he had put a boy out of a truck in York County, that
he had shot at a boy to scare him." Atkins told Burton that
he was not worried about being convicted because the police
"wouldnt find the weapon . . . they didnt have
the weapon, the only thing they had on him was a picture holding
a gun to a boy" at the automatic teller machine. Atkins also
told Burton that he had shot himself in the leg, but that he
could not remember it because he was "too messed up" on
drugs and alcohol to realize it.
Atkins testified on his own behalf and was the
only defense witness on the issue of guilt. Atkins account
of the robbery and murder was in direct conflict with that of
Jones. According to Atkins, he and Jones had gone to the
convenience store with the intent to rob someone, and it was
Jones who was armed and who initiated the contact with Nesbitt.
Atkins maintained that Jones forced his way into Nesbitts
truck, and then gave the handgun to Atkins so that Jones could
drive. Atkins admitted taking money from Nesbitts wallet
and forcing Nesbitt to withdraw money from the automatic teller
Atkins further maintained that Jones said
"he know [(sic)] a place and he never told me"
where they could take Nesbitt and "tie him up." After
leaving the interstate, according to Atkins, Jones stopped the
truck, took the handgun back from Atkins, placed it in a holster
on his belt, and directed Atkins and Nesbitt to change places so
that Nesbitt was sitting by the passenger door. Jones then drove
"a little more" and then exited the truck and ordered
Nesbitt to get out of the truck as well. With regard to the
critical issue of who was the "triggerman" in the
murder of Nesbitt, Atkins maintained that Jones shot Nesbitt
several times and that one of the shots struck Atkins in the leg.
The jury was instructed and heard closing
arguments from counsel. After its deliberations, the jury
returned verdicts convicting Atkins of capital murder and the
associated firearm crime.
B. Penalty Phase
The Commonwealth sought the imposition of the
death penalty based on the aggravating factors of future
dangerousness and vileness. Code Sect. 19.2-264.2. During
the penalty phase, to prove future dangerousness, the
Commonwealth presented evidence of Atkins prior felony
convictions, which included robbing and maiming, the testimony of
several victims of prior robberies and assaults committed by
Atkins, and victim impact testimony from Nesbitts mother.
After concluding the presentation of this evidence, the
Commonwealth rested, and Atkins made a motion to strike the
Commonwealths evidence as to the aggravating factor of
vileness on the ground that no evidence presented in the penalty
phase would support such a finding. Code
Sect. 19.2-264.4(C). Over Atkins objection, the trial
court permitted the Commonwealth to reopen its case in order to
have the exhibits introduced during the guilt phase included in
the evidence to be considered in the penalty phase. Those
exhibits included pictures of Nesbitts body, the autopsy
report, and other items.
Atkins presented the testimony of Dr. Evan
Stuart Nelson, a forensic psychologist. Dr. Nelson testified that
Atkins full scale IQ is 59 with a verbal IQ of 64 and a
performance IQ of 60.  Based on these scores, Dr. Nelson stated that Atkins
"falls in the range of being mildly mentally retarded."
Dr. Nelson concluded that, based on Atkins prior behavior
while incarcerated, there was a "very high likelihood"
that Atkins would not be "violent within the prison" if
given a life sentence.
On cross-examination, Dr. Nelson conceded that
he "did not find a reason to raise a concern to the Court or
counsel about [Atkins] competency" to stand trial. In
addition, Dr. Nelson concluded from the data available to him
that "there were no indications that [Atkins] could not
appreciate the nature of his behaviors and control himself."
After all the evidence relating to the penalty
phase had been received, the trial court and counsel considered
jury instructions and the verdict form. The trial court granted
the Commonwealths first instruction which properly detailed
the necessity of the jury finding that either one or both of the
statutory aggravating factors of future dangerousness and
vileness were proven beyond a reasonable doubt before it could
impose the death penalty. It further provided that the jury could
nonetheless impose a sentence of imprisonment for life or a
sentence of imprisonment for life and a fine if "the death
penalty is not justified." Finally, this instruction
properly directed the jury that if the Commonwealth failed to
prove beyond a reasonable doubt at least one of the aggravating
factors of future dangerousness or vileness, then it was required
to impose a sentence of imprisonment for life or a sentence of
imprisonment for life and a fine.
The Commonwealths second instruction
defined "imprisonment for life" to mean "life
without possibility of parole." The Commonwealths
third instruction detailed the possible sentences for the firearm
crime. The trial court granted both of these instructions.
The Commonwealth proffered an instruction on
mitigating circumstances. Atkins counsel expressly stated
that he did not want the trial court to give this instruction,
and the Commonwealth withdrew it. Atkins did not proffer an
alternative instruction on mitigating circumstances and raised no
objection to the absence of an express instruction on mitigation.
During the discussion of the instructions,
several references were made to the proposed jury verdict forms.
At that time, the Commonwealth advised the trial court that it
was in the process of redrafting its proposed verdict form
because "there was a revision that [Atkins counsel] wanted [the Commonwealth] to make" in that verdict form.
Atkins counsel responded, "[U]nless [the Commonwealth
has] done a major redraft, I prefer mine which gives the jury
every option. [The Commonwealths], from what I saw, was . .
. limited to death." The trial court then stated,
"Well, they obviously have the option of life."
A short time later, the Commonwealths
redrafted verdict form was given to the trial court and
Atkins counsel. Referring to this form, the Commonwealth
stated, "Ours are the same as the Defenses, Judge.
They are both Model Instructions."
Atkins proposed verdict form contained
seven alternative findings. The first six of these, in order,
permitted the jury to impose either a sentence of death or one of
imprisonment for life and a fine if it found that both
aggravating factors were proven, if it found future dangerousness
alone was proven, or if it found vileness alone was proven. The
seventh finding on Atkins form permitted the jury to impose
only a sentence of life imprisonment and a fine if neither
aggravating factor was found to have been proven beyond a
The Commonwealths proposed verdict form
contained six alternative findings corresponding, although in a
different order, with the first six alternative findings on
Atkins proposed form. It did not provide a finding
permitting the jury to impose only a life sentence and fine if
neither aggravating factor was found to have been proven beyond a
After the instructions were agreed upon, the
trial court reviewed the two sets of proposed verdict forms and
stated, "Either is okay with the Court. I think they both
say the same thing, identically the same thing."
Atkins counsel responded, "Pretty close the same
thing." The Commonwealth then stated that the findings in
its form were merely listed in a different order from that of the
defenses form. The Commonwealth asserted that the order of
its form, giving options for death and life imprisonment verdicts
based on the individual aggravating factors and then the option
for a verdict premised on both factors being present was more
appropriate. The trial court accepted the Commonwealths
proposed verdict form. Atkins did not object to the content of
the Commonwealths verdict form at the time it was adopted
by the trial court or when it was subsequently read to the jury.
In closing argument, Atkins counsel made
brief references to Atkins low intelligence, and urged the
jury to impose a sentence of life without possibility of parole
rather than a death sentence. Counsel argued that a life sentence
would be appropriate, based on Dr. Nelsons opinion that
Atkins would be able to exercise some level of self-control
within the structured environment of prison.
The jury found that Atkins both represented a
future danger to society and that the murder of Nesbitt had been
outrageously or wantonly vile. Based upon its finding of these
aggravating factors, the jury returned a verdict imposing a
sentence of death on Atkins for the murder of Nesbitt.
C. Sentencing Hearing
At sentencing, Atkins counsel objected
for the first time to the failure of the verdict form to include
a finding permitting the jury to impose only a life sentence and
fine if it found that neither aggravating factor was proven
beyond a reasonable doubt. Counsel made a motion to set aside the
jurys verdict imposing the death penalty. The trial court
ruled that the objection was not timely, and further noted that
the evidence was adequate to support the jurys findings of
future dangerousness and vileness, precluding the possibility of
it imposing the mandatory sentence of life imprisonment in the
absence of such factors. The trial court then confirmed the
jurys verdict and sentenced Atkins to death. This appeal
We begin by noting that Atkins has modified the
order and phrasing of his assignments of error in his opening
brief from those originally designated by him under Rule 5:22(b).
In our discussion, we shall refer only to the 19 original
assignments of error as listed by Atkins in the Rule 5:22(b)
designation.  Sheppard v. Commonwealth, 250 Va. 379, 385-86,
464 S.E.2d 131, 135 (1995), cert. denied, 517 U.S. 1110
(1996). Atkins has not briefed or argued assignments of error 9,
13, and 20 and, thus, we will not consider them. Id. at
386, 464 S.E.2d at 135.
A. Issues Previously Decided
In assignments of error 3, 4, 5, 6, 7, and 8,
Atkins raises various challenges to the constitutionality of the
Virginia capital murder statute and the statutory scheme under
which capital murder trials are conducted and death sentences are
reviewed on appeal. In addition, in assignment of error 12,
Atkins asserts the general proposition that "the Virginia
Death Penalty Statutes Violate the Virginia and United States
Constitutions." On brief, Atkins does not make a
particularized argument relevant to assignment of error 12, but
simply identifies it as being subsumed within the argument of his
other constitutional challenges. The arguments raised in these
assignments of error, which in several instances are overlapping,
have been thoroughly addressed and rejected in numerous prior
capital murder cases.  We find no reason to modify our previously expressed
views on these issues.
Atkins further assigns error to the trial
courts failure to grant him additional peremptory strikes
during jury selection. See Code Sect. 19.2-262. We
have repeatedly held that there is no right to additional
peremptory challenges in a capital murder trial. See, e.g.,
Strickler v. Commonwealth, 241 Va. 482, 489, 404 S.E.2d
227, 232, cert. denied, 502 U.S. 944 (1991).
B. Request for Blood Sample
Atkins assigns error to the trial courts
denial of his motion in limine to have a blood sample taken from
Jones or in the alternative limiting the Commonwealths
presentation of the results of DNA testing of the blood found at
the scene of the murder. Atkins contends that in doing so, the
trial court interfered with his "right to call evidence in
his favor." We disagree.
In arguing his motion, Atkins conceded that
there was no evidence to suggest that Jones was a potential
source of any of the blood evidence recovered from the crime
scene. The evidence at trial showed that each of the blood
samples could almost certainly be linked to either Nesbitt or
Atkins. Therefore, Atkins request that a sample of
Jones blood be taken for DNA comparison to the blood found
at the crime scene was not founded on any reasonable claim that
it was necessary to his defense. See ODell v.
Commonwealth, 234 Va. 672, 686, 364 S.E.2d 491, 499, cert.
denied, 488 U.S. 871 (1988). Moreover, Atkins cannot
demonstrate that the failure to make that evidence available to
him was materially prejudicial to the presentation of his theory
of the case. See Satcher v. Commonwealth, 244 Va.
220, 244-45, 421 S.E.2d 821, 836 (1992), cert. denied, 507
U.S. 933 (1993).
C. Batson Challenge
Atkins contends that the trial court erred in
overruling his Batson challenge to the Commonwealths
peremptory strike of Christian. While making only a cursory
argument on this issue on brief, during oral argument of this
appeal Atkins counsel asserted that the Commonwealths
proffer of the offense report was insufficient to establish that
Christian had actually been the victim of a crime and, thus, that
it would not support the Commonwealths contention that
Christian had failed to answer the trial courts and
counsels questions truthfully.
In Batson, the United States Supreme
Court held that purposeful discrimination based on race in
selecting jurors violates the Equal Protection Clause. Batson,
476 U.S. at 89. If an accused makes a prima facie showing
of the prosecutions use of peremptory strikes on the basis
of race, the burden shifts to the prosecution to articulate
race-neutral reasons for such strikes. Chichester v.
Commonwealth, 248 Va. 311, 323, 448 S.E.2d 638, 646 (1994), cert.
denied, 513 U.S. 1166 (1995). On appeal, we will assume,
without deciding, that Atkins made a prima facie showing
of a discriminatory strike. Thus, we consider whether the trial
court abused its discretion in accepting the Commonwealths
articulated race-neutral reason for striking the prospective
juror. A trial courts determination whether the reason
given is race-neutral is entitled to great deference, Spencer
v. Commonwealth, 238 Va. 295, 310, 384 S.E.2d 785, 795
(1989), cert. denied, 493 U.S. 1093 (1990), and will not
be reversed on appeal unless it is "clearly erroneous."
Hernandez v. New York, 500 U.S. 352, 369 (1991).
There is no merit to Atkins contention on
this issue. The trial court was not required to determine whether
the criminal complaint filed by Christian would ultimately prove
sufficient to establish that she had actually been the victim of
a crime. Nor was the Commonwealth required to show that Christian
could have been struck for cause. Rather, the Commonwealths
burden was to show that it had a sufficient race-neutral reason
for using one of its peremptory strikes in removing Christian
from the jury. At the time the Commonwealth exercised this
peremptory strike, it had a sufficient subjective basis for
questioning Christians truthfulness. The trial court
accepted the Commonwealths stated basis for its action, and
that decision is clearly supported by the record.
D. Admission of Atkins Statement to
On August 21, 1996, Atkins voluntarily gave a
statement to Investigator Lyons in which Atkins admitted his
participation in the abduction, robbery, and murder of Nesbitt.
In that statement, however, Atkins denied that he had been the
"triggerman" and asserted that Jones alone had shot
Nesbitt. At trial, during cross-examination of Lyons,
Atkins counsel attempted to elicit testimony from Lyons
that Atkins statement contained this denial and assertion.
The Commonwealth objected on the ground that, while the statement
inculpated Atkins as a participant in these crimes, Atkins
denial that he was the "triggerman" was self-serving
and inadmissible hearsay. The trial court ultimately sustained
that objection and cautioned the jury to disregard any reference
to this statement.
Subsequently during his testimony, Atkins was
permitted to reference the content of this statement in great
detail. Significantly, Atkins testified that in his prior
statement he "told them that William Jones pulled the
trigger." Consistent with that assertion, Atkins further
testified that he did not "shoot a gun" on the night of
the murder and that Jones had shot Nesbitt.
On brief, Atkins asserts only that "Mr.
Atkins statement to the [police] should have been admitted
as an exception to the hearsay rule under the statement against
penal interest exception." This assertion simply ignores the
fact that the statement was ultimately admitted in conjunction
with Atkins testimony, and that the jury clearly had the
benefit of Atkins prior consistent assertion to bolster his
trial testimony that he was not the triggerman. Thus, no
prejudice resulted to Atkins. Moreover, there is no merit to
Atkins assertion that his prior statement should have been
admitted during Lyons testimony.
At the time of Lyons testimony, Atkins
had not testified and the limited circumstances in which a prior
consistent statement is admissible were not applicable. See
Manetta v. Commonwealth, 231 Va. 123, 128 n.3, 340 S.E.2d
828, 831, n.3 (1986). Atkins prior consistent statement on
the triggerman issue provided no basis to impeach the testimony
of Lyons because Lyons was not the declarant or otherwise bound
by the statement. Nor could the statement have been admitted as
being against penal interest, since Atkins, the declarant, was
not "unavailable" to testify at trial, which is a
prerequisite to invoke that exception to the hearsay rule. Ellison
v. Commonwealth, 219 Va. 404, 408, 247 S.E.2d 685, 688 (1978)
E. Sufficiency of the Evidence
Atkins contends that the trial court erred in
failing to set aside the jurys verdict convicting him of
capital murder because the evidence failed to establish beyond a
reasonable doubt that he was the triggerman in the killing of
Nesbitt. On brief, Atkins candidly states that "[t]his case
comes down to the testimony of Mr. William A. Jones and Stephen
R. Burton against the testimony of Mr. Atkins." During oral
argument of this appeal, Atkins counsel conceded that, to
find error in the trial courts action, this Court would be
required to reweigh the evidence and make determinations as to
the credibility of the witnesses and their testimony.
"[T]he credibility of witnesses and the
weight to be accorded their testimony are questions for the fact
finder." Saunders v. Commonwealth, 242 Va. 107, 113,
406 S.E.2d 39, 42, cert. denied, 502 U.S. 944 (1991).
Where the jury has seen and heard the witnesses and assessed
their credibility and the weight of their testimony, its
determination of the facts will not be overturned on appeal
unless it is plainly wrong or without evidence to support it.
Code Sect. 8.01-680.
Thus, while Atkins may selectively craft an
interpretation of the evidence to fit his claims of innocence,
and attack the credibility and motivation of Jones and Burton,
the trial court, and this Court on appeal, may not substitute its
own judgment for that of the jury where a reasonable
interpretation of the evidence supports the verdict. Here, the
evidence when viewed in its entirety supports the jurys
determination that, beyond a reasonable doubt, Atkins was
directly responsible for Nesbitts death and that Atkins was
the triggerman. Accordingly, the trial court did not err in
refusing to set aside the conviction for capital murder.
F. The Verdict Form 
Atkins asserts that the jury was not properly
"instructed" during the penalty phase because the
verdict form failed to provide the jury with the option of
sentencing Atkins to life imprisonment upon a finding that
neither of the aggravating factors of future dangerousness or
vileness was proven beyond a reasonable doubt. We agree.
It is a well established rule that under normal
circumstances a trial court is under no obligation to amend or
correct an instruction that contains a misstatement of law.
However, "when the principle of law is materially vital to
[the] defendant in a criminal case, it is reversible error for
the trial court to refuse a defective instruction instead of
correcting it and giving it in the proper form." Whaley
v. Commonwealth, 214 Va. 353, 355-56, 200 S.E.2d 556, 558
(1973); accord Bryant v. Commonwealth, 216 Va. 390,
392-93, 219 S.E.2d 669, 671-72 (1975). Clearly, it is materially
vital to the defendant in a criminal case that the jury have a
proper verdict form. Moreover, Atkins submitted a proper verdict
form, as required by Code Sect. 19.2-264.4(D) and, thus,
there can be no question that the trial court, while having the
discretion to elect between the two forms proffered to it, had
the duty to give the jury a proper verdict form. It was the
Commonwealths verdict form that was erroneous and, thus,
when the trial court accepted the Commonwealths assertion
that the order of sentencing options in its form was preferable,
it was the Commonwealth, and not Atkins, that placed the trial
court in the position of erring when it failed to correct the
omission in the Commonwealths form.
In the present case, the Commonwealth
represented to both the trial court and Atkins counsel that
its proposed verdict form was "the same as the
Defenses" except that the alternative findings varied
in order. This simply was not accurate. The Commonwealths
form contained no alternative finding permitting the jury to
impose only a life sentence if neither future dangerousness nor
vileness had been proven beyond a reasonable doubt. Thus, each of
the Commonwealths alternative verdicts required the jury to
find at least one of the aggravating factors to have been present
before imposing a sentence of either death or life imprisonment.
Although neither the trial court nor Atkins counsel noted
the discrepancy between the Commonwealths proposed verdict
form and Atkins form, Atkins counsel was entitled to
rely upon the Commonwealths representation that there was
no discrepancy between the forms and it had merely varied the
order of the findings from that in Atkins form.
The trial courts use of the
Commonwealths form resulted in the jury receiving a verdict
form which was incomplete and which did not comport with the
correct statement of law given to the jury by the trial court in
its first instruction. We need go no further in our analysis to
determine whether the jury in fact was left with the impression,
contrary to the trial courts instruction, that it was
required first to find that at least one of the aggravating
factors was present. The jury was presented with a confusing
situation in which the trial courts instructions and the
form the jury was given to use in discharging its obligations
were in conflict.
For these reasons, we will set aside the
sentence of death imposed by the jury and remand the case to the
trial court for a new penalty proceeding.
G. Reopening of Commonwealths Case in
the Penalty Phase
Asserting that the Commonwealth failed to
introduce any evidence of vileness prior to resting its case
during the penalty phase, Atkins contends that the trial court
erred in failing to strike the Commonwealths evidence as to
that aggravating factor and instead permitting the Commonwealth
to reopen its case in order to reintroduce the exhibits used in
the guilt phase to establish the vileness of the crime. Because
of the ultimate disposition we make in this appeal, this issue is
moot. We note, however, that because Code
Sect. 19.2-264.4(B) requires that the sentencing jury
consider "the circumstances surrounding the offense" in
determining punishment, the Commonwealth will be permitted to
reintroduce such evidence on remand as is relevant to prove the
existence of either aggravating factor.
H. Statutory Review of Death Penalty
Because we have determined that there was
reversible error in the penalty phase of Atkins trial which
will necessitate a remand to the trial court, we need not
consider at this time "[w]hether the sentence of death 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 Sect. 17.1-313.
Nonetheless, we will briefly address the issue of Atkins
mental retardation, which was the principal basis for
Atkins argument that his sentence was disproportionate,
since this issue is likely to have relevance on remand.
Atkins contends that the sentence of death is
inappropriate in his case because he is "an individual with
an IQ of 59" who would be parole-ineligible if his sentence
were commuted to life imprisonment. He asserts that an individual
who was "mildly mentally retarded," while not legally
insane, should not be held fully accountable for his actions. In
essence, Atkins asserts that his mental retardation is a
mitigating factor that should have militated against the
imposition of the death penalty.
Although Atkins counsel expressly stated
that he did not want the trial court to give the
Commonwealths proffered instruction on mitigation, and
proffered no instruction of his own on that issue, the trial
court should have instructed the jury to consider all the
mitigating evidence including Atkins mental retardation. See
Penry v. Lynaugh, 492 U.S. 302, 328 (1989)(failure to
instruct jury that it "could consider and give effect to the
mitigating evidence of [defendants] mental
retardation" deprived jury of "a vehicle for expressing
its reasoned moral response to that evidence in
rendering its sentencing decision"); see also Code
Sect. 19.2-264.4(B)(vi). Upon remand, the trial court shall
so instruct the jury.
Atkins further contends that the imposition of
the death penalty on a mentally retarded person constitutes a
violation of the prohibition against cruel and unusual punishment
of the Eighth Amendment. Because it is not certain that the death
penalty will be imposed on Atkins on remand, we decline to
address this issue at this time. But see Penry, 492
U.S. at 340 (holding that there is no per se rule
prohibiting the execution of mentally retarded persons).
For the reasons stated, we find no reversible
error in the guilt phase of Atkins trial, and, accordingly,
we will affirm Atkins conviction for capital murder.
Because there was error in the penalty phase of the trial with
respect to the imposition of the death penalty, we will reverse
the sentence of death and remand the case to the trial court for
a new penalty proceeding on the capital murder conviction.
Affirmed in part, reversed in part, and
 Prior to trial, Atkins pled guilty to
the abduction and robbery charges and their associated firearm
crimes. He does not challenge his convictions or sentences for
these crimes in this appeal.
 The Commonwealth also contended that
Christian might lack empathy for the victim because she was not a
parent, but subsequently conceded that Christian had not been
questioned as to whether she had children or not. In addition,
the Commonwealth conceded that it had discovered an offense
report concerning an altercation between Christian and a relative
that indicated that Christian possibly was a parent.
 Prior to Atkins trial, Jones
entered into a plea agreement with the Commonwealth dated
September 5, 1997, in which Jones agreed to testify against
Atkins in exchange for a reduction in the charges against him
arising out of the murder of Nesbitt.
 Dr. Nelson explained that "the
full scale IQ score is not a simple mathematical average between
64 and 60. Its actually putting all of the items back
together, charting out a graph of the scores and then figuring
out where people stand."
 In the Rule 5:22(b) designation, the
assignments of error are numbered from 1 to 20, but there is no
assignment of error numbered 18.
 See, e.g., Barnabei
v. Commonwealth, 252 Va. 161, 178-79, 477 S.E.2d 270, 280
(1996), cert. denied, 520 U.S. 1224 (1997) (aggravating
factors of future dangerousness and vileness are not
unconstitutionally vague); Joseph v. Commonwealth, 249 Va.
78, 82, 452 S.E.2d 862, 865, cert. denied, 516 U.S. 997
(1995)(death penalty does not constitute cruel and unusual
punishment; appellate review process does not deprive defendant
of statutory rights and due process of law); Breard v.
Commonwealth, 248 Va. 68, 74, 445 S.E.2d 670, 675, cert.
denied, 513 U.S. 971 (1994)(method of instructing jury on
mitigation does not impermissibly interfere with jurys
consideration of evidence offered in mitigation); Stewart v.
Commonwealth, 245 Va. 222, 229, 427 S.E.2d 394, 400, cert.
denied, 510 U.S. 848 (1993)(proof of future dangerousness by
prior criminal convictions does not violate double jeopardy); Smith
v. Commonwealth, 219 Va. 455, 476-77, 248 S.E.2d 135, 148
(1978), cert. denied, 441 U.S. 967
(1979)("vileness" and "dangerousness"
predicates for imposition of the death penalty do not
impermissibly fail to guide the jurys discretion).
 This issue was raised in assignment of
error 19, which asserts errors in the instruction of the jury in
both the guilt phase with respect to accomplice testimony, and in
the penalty phase on the issue discussed herein. During oral
argument of this appeal, Atkins counsel conceded that he
had not proffered an instruction on accomplice testimony at the
conclusion of the guilt phase or objected to the trial
courts failure to give such an instruction sua sponte
and, thus, that the issue was not properly preserved for appeal.
In addition, the Commonwealth asserts on brief
that assignment of error 19 is inadequate to encompass a
challenge to the verdict form because a verdict form is not an
"instruction" to the jury, but is merely a tool to aid
the jury in rendering its verdict. However, during discussion of
this issue at trial, the trial court, the Commonwealth, and
Atkins counsel used the terms "verdict form,"
"finding form," and "finding instructions"
interchangeably. Moreover, in this context, the term
"instruction" is sufficiently broad to cover any
statement of the law given by the trial court to the jury, which
would necessarily include the written verdict form required by
Code Sect. 19.2-264.4(D).
 We note further that, while not
raising a precise objection to the Commonwealths proposed
verdict form at the time it was selected by the trial court,
Atkins counsel consistently stated his preference for the
form he had submitted to the trial court. Cf. Pilot
Life Insurance Co. v. Karcher, 217 Va. 497, 498, 229 S.E.2d
884, 885 (1976)(where a party proffers an alternative instruction
that is a correct statement of the law, this, without more, will
be adequate to preserve for appeal a challenge to the instruction
 Title 17.1 superseded former Title 17
effective October 1, 1998 and prior to the argument of this
appeal. The current statute, Code Sect. 17.1-313, provides
for review by this Court in the same manner as the now superseded
provisions of Code Sect. 17-110.1, the statute under which
the parties briefed the appeal.