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September 15, 2000

Record No. 000395





N. Prentis Smiley, Jr., Judge

Present: All the Justices


Daryl Renard Atkins was convicted in the
Circuit Court of York County of the 1996 capital murder of Eric
Michael Nesbitt and sentenced to death. On appeal, we affirmed
his conviction, Atkins v. Commonwealth, 257 Va. 160, 180,
510 S.E.2d 445, 457 (1999), but remanded the case to the circuit
court for a new penalty proceeding due to an improper jury
sentencing verdict form, id. at 177-79, 510 S.E.2d at
[1] At resentencing, a different jury
found that there is a probability that Atkins would commit acts
of violence in the future that would constitute a continuing
serious threat to society, and that his conduct in committing the
capital murder was "outrageously or wantonly vile, horrible
or inhuman in that it involved torture, depravity of mind, or
aggravated battery to the victim beyond the minimum necessary to
accomplish the act of murder." The jury fixed Atkins’
punishment at death. At a separate sentencing hearing, the
circuit court imposed the death penalty in accordance with the
jury verdict. Atkins now appeals that sentence.

Atkins assigns eight errors on appeal. After
considering those issues and conducting our mandated review
pursuant to Code ? 17.1-313(C), we find no error in the
judgment of the circuit court and will affirm the imposition of
the death penalty.


In three related assignments of error, Atkins
raises the question whether the circuit court improperly
inhibited the jury’s consideration of mitigating evidence.
First, he asserts that Virginia’s bifurcated jury system, as
applied when a case is remanded for a new sentencing hearing
before a different jury, unconstitutionally limits a
defendant’s ability to present relevant evidence from the
guilt phase of the previous trial. Second, Atkins claims that the
circuit court erred in limiting his examination of Frederick T.
Lyons, an investigator with the York County sheriff’s
office, thereby denying Atkins the opportunity to present a
complete defense, including mitigating evidence, at his new
sentencing hearing. Finally, Atkins argues that the circuit court
erred in refusing to instruct the jury about mitigating factors.
We find no merit to these claims.

Initially, to the extent that Atkins contends
that Virginia’s bifurcated jury system is constitutionally
defective because he could not, at his resentencing, present
evidence and argue "residual doubt" with regard to his
guilt in the commission of the crime, that contention has been
previously addressed and rejected by this Court.
See Stockton v. Commonwealth,
241 Va. 192, 210-11, 402 S.E.2d 196, 206-07, cert. denied,
502 U.S. 902 (1991) (defendant not allowed to introduce evidence
and argue "residual doubt" at new sentencing hearing); Frye
v. Commonwealth
, 231 Va. 370, 393, 345 S.E.2d 267, 283 (1986)
(defendant cannot contest correctness of guilty verdict at
sentencing phase); see also Franklin v. Lynaugh,
487 U.S. 164, 173 (1988) (defendant is not entitled to jury
instruction on "residual doubt"). We find no reason to
depart from our precedent.

However, Atkins contends that the evidence he
sought to introduce through the testimony of Lyons was not
offered for the purpose of creating "residual doubt"
about his guilt. Specifically, during direct examination,
Atkins’ counsel asked Lyons, "[A]fter you advised
[Atkins] of [his Miranda] rights, did [Atkins] confess to you his
involvement in the murder of Eric Nesbitt?" According to
Atkins, the information that he sought to elicit by that question
was the fact that he had admitted his participation in the murder
of Nesbitt. Atkins argues that such information was relevant to
the issues of Atkins’ remorse and his cooperation with law
enforcement authorities, both of which are proper subjects of
mitigating evidence.

The Commonwealth objected to the question,
contending that it called for a hearsay statement. The
Commonwealth also noted that, while Atkins confessed to Lyons his
involvement in the abduction, robbery, and murder of Nesbitt,
Atkins denied that he was guilty of capital murder. In the
confession to Lyons, Atkins maintained that his accomplice alone
was the "triggerman." Thus, according to the
Commonwealth, for Lyons to appropriately answer the propounded
question, he would have to tell the jury that Atkins denied that
he pulled the trigger, which would have been contrary to the
circuit court’s prior ruling that evidence regarding
Atkins’ guilt would not be admitted at the resentencing

The circuit court sustained the
Commonwealth’s objection on the basis that the testimony
being elicited from Lyons was hearsay.
[5] We agree.

In Atkins’ initial appeal to this Court,
we considered this same evidence and held that no exception to
the hearsay rule applied which would allow Lyons to testify about
the content of Atkins’ statement to him. Atkins, 257
Va. at 176, 510 S.E.2d at 455. The proffer of this evidence at
the resentencing hearing does not change the hearsay analysis.
According to Code ? 19.2-264.4(B), mitigating evidence
relevant to sentencing is "subject to the rules of evidence
governing admissibility." See Cherrix v.
, 257 Va. 292, 309, 513 S.E.2d 642, 653, cert.
denied, ___ U.S. ___, 120 S.Ct. 177 (1999) (subject to
rules of evidence governing admissibility, trial court has
discretion under Code ? 19.2-264.4(B) to determine what
evidence may be adduced in mitigation of offense); Coppola v.
, 220 Va. 243, 253, 257 S.E.2d 797, 804 (1979), cert.
denied, 444 U.S. 1103 (1980) (same); but see
O’Dell v. Commonwealth, 234 Va. 672, 701-02, 364
S.E.2d 491, 508, cert. denied, 488 U.S. 871 (1988)
(holding that hearsay evidence contained in postsentence report
is admissible based on language of Code ?? 19.2-264.5 and

In any event, we believe that the information
that Atkins sought to elicit from Lyons improperly would have
interjected at the new sentencing hearing a question about
Atkins’ guilt. In that statement to Lyons, Atkins denied
that he was the "triggerman" and accused his accomplice
of shooting Nesbitt. Atkins, 257 Va. at 175, 510 S.E.2d at
455. As we previously stated, a defendant is not allowed to argue
or present evidence of "residual doubt" at a new
sentencing hearing. Stockton, 241 Va. at 211, 402 S.E.2d
at 207.

Finally, Atkins contends that the circuit court
erred by denying certain proposed instructions on the mitigation
factors contained in Code ? 19.2-264.4.
[6] Specifically, Atkins requested
the court to instruct the jury that it may consider, in
mitigation, Atkins’ age at the time of the offense, his
mental retardation, and any other evidence that would tend to
favor a sentence of life imprisonment. However, the record before
us shows that Atkins withdrew the requested instruction.
Regardless, this Court has consistently held that defendants
being sentenced for capital murder are not entitled to jury
instructions that list the specific types of mitigating factors a
jury may consider. George v. Commonwealth, 242 Va. 264,
283, 411 S.E.2d 12, 23 (1991), cert. denied, 503
U.S. 973 (1992); Eaton v. Commonwealth, 240 Va. 236, 257,
397 S.E.2d 385, 398 (1990), cert. denied, 502 U.S.
824 (1991); Gray v. Commonwealth, 233 Va. 313, 351, 356
S.E.2d 157, 178, cert. denied, 484 U.S. 873 (1987).
We will not depart from our prior decisions today.


Atkins raises two issues with regard to the
composition and selection of the jury. He first contends that the
circuit court erred in denying his motion to strike the entire
venire because it did not accurately represent the demographic
make-up of the population of York County. Second, he challenges
the Commonwealth’s use of one of its peremptory strikes.

With regard to the first issue, Atkins argued
at trial that the venire, which contained only three Black
members, did not represent a fair cross-section of the community.
According to Atkins’ counsel, York County’s population
is 30 percent Black. In denying Atkins’ motion, the circuit
court noted that the venire had been randomly selected.

Systematic exclusion of a "distinctive
group in the community" must be shown in order to establish
that a defendant’s constitutional right to a fair jury
selection system has been violated. Chichester v. Commonwealth,
248 Va. 311, 324, 448 S.E.2d 638, 647 (1994), cert. denied,
513 U.S. 1166 (1995). Atkins does not contend that there was such
exclusion, nor does the record in this case suggest any
systematic exclusion of Black members of the community from the
venire. Thus, we find no merit in Atkins’ claim.

On the second issue, Atkins contends that the
Commonwealth’s exercise of a peremptory strike to remove the
only remaining Black juror violated the rule established in Batson
v. Kentucky
, 476 U.S. 79 (1986), holding that peremptory
strikes based solely upon a juror’s race violate the Equal
Protection Clause. In deciding whether a peremptory strike is
racially motivated in violation of Batson, a trial court
"must consider the basis of the challenge[], the reasons
proffered for the strike[], and any argument presented that such
reasons, even if race-neutral, are pretextual, to determine
whether the challenger has met [the] burden of proving purposeful
discrimination in the selection of a jury panel." Chandler
v. Commonwealth
, 249 Va. 270, 277, 455 S.E.2d 219, 223, cert.
denied, 516 U.S. 889 (1995). We will reverse a trial
court’s findings that there was no purposeful discrimination
in the striking of a juror and that the reasons proffered by the
Commonwealth were racially neutral only where such findings are
clearly erroneous. Id.

The juror in question testified that he took
medication for a thyroid condition and that the medication caused
him to feel "bombed out" and "drowsy" at
times. Because of the juror’s medical condition, the
Commonwealth expressed concern about the juror’s ability to
pay close attention to the evidence. The circuit court determined
that the Commonwealth had proffered a sufficiently race-neutral
reason to strike the juror, and we conclude that this finding was
not clearly erroneous. See Stockton, 241 Va. at
209, 402 S.E.2d at 205-206 (concern about juror’s
attentiveness was race-neutral reason for striking juror).


Next, Atkins asserts that the circuit court
should have granted his motion to strike the Commonwealth’s
evidence at the new sentencing hearing because that evidence was
insufficient to prove either the future dangerousness or the
vileness aggravating factor. Atkins makes no argument on this
assignment of error beyond this mere assertion. Upon reviewing
the record, we find evidence sufficient to prove beyond a
reasonable doubt both Atkins’ future dangerousness and the
vileness of his crime.

To establish the future dangerousness predicate
for imposition of the death penalty, the factfinder may consider
a defendant’s past criminal record, a defendant’s prior
history, the circumstances surrounding the commission of the
offense under consideration, and the heinousness of the crime. Edmonds
v. Commonwealth
, 229 Va. 303, 312, 329 S.E.2d 807, 813, cert.
denied, 474 U.S. 975 (1985). In the present case, the
Commonwealth presented evidence showing that Atkins had at least
18 prior felony convictions for such crimes as attempted robbery,
robbery, abduction, breaking and entering with the intent to
commit larceny, grand larceny, maiming, and use of a firearm. In
addition, the jury not only heard the details of several
robberies that Atkins committed, including one in which Atkins
hit a victim over the head with a bottle, but also learned about
an incident during which he shot a woman in the stomach without
provocation. Thus, we conclude that there was sufficient evidence
to support the jury’s finding of Atkins’ future

With respect to the vileness predicate, Code
?? 19.2-264.2 and –264.4(C) define vileness as
conduct that "was outrageously or wantonly vile, horrible or
inhuman" involving "torture, depravity of mind or an
aggravated battery to the victim." Proof of either torture,
depravity of mind, or an aggravated battery is sufficient to
support a finding of vileness. Bunch v. Commonwealth, 225
Va. 423, 442, 304 S.E.2d 271, 282, cert. denied,
464 U.S. 977 (1983).

Based on testimony from the assistant chief
medical examiner who autopsied Nesbitt’s body, the jury
learned that Atkins shot Nesbitt eight times. Three of the
gunshots caused mortal wounds. One of those gunshots penetrated
the left chest cavity and perforated both lungs and the heart;
the second one, to the left lateral back, perforated the right
lung and aorta; and the third fatal shot perforated the arm,
re-entered the abdomen, and perforated the iliac artery. However,
none of the fatal shots was immediately lethal; they would not
have caused immediate unconsciousness or paralysis; and Nesbitt
may have survived several minutes before dying from internal
bleeding. Nesbitt also sustained several scrapes or abrasions,
including a large linear abrasion on his right forehead.

This Court has defined the term
"aggravated battery" used in Code ?? 19.2-264.2
and –264.4(C) to mean "‘a battery which,
qualitatively and quantitatively, is more culpable than the
minimum necessary to accomplish an act of murder.’" Goins
v. Commonwealth
, 251 Va. 442, 468, 470 S.E.2d 114, 131, cert.
denied, 519 U.S. 887 (1996) (quoting Smith v.
, 219 Va. 455, 478, 248 S.E.2d 135, 149 (1978), cert.
denied, 441 U.S. 967 (1979)). Thus, we find sufficient
evidence to support the jury’s finding that Atkins’
murder of Nesbitt was "outrageously or wantonly vile."
Code ?? 19.2-264.2 and –264.4(C).


Whenever a sentence of death is imposed, this
Court is required to determine whether that sentence "was
imposed under the influence of passion, prejudice or any other
arbitrary factor; and [w]hether the sentence of death is
excessive or disproportionate to the penalty imposed in similar
cases, considering both the crime and the defendant." Code
? 17.1-313(C). With regard to these two questions, both
assigned as errors by Atkins, we initially note that Atkins has
presented no argument that his sentence of death was influenced
by passion, prejudice or any other arbitrary factor, nor has our
review of the record revealed any such improper influence.

With respect to the proportionality question,
Atkins does not argue that his death sentence is disproportionate
to the penalties imposed for crimes similar to the one he
perpetrated, namely premeditated murder with a firearm in the
commission of a robbery, where the death penalty was imposed on
the basis of both the future dangerousness and vileness
predicates. Nor, given our previous cases, could he do so
convincingly because juries in this Commonwealth regularly impose
the death penalty for capital murders comparable to the one at
issue in this case.
[7] See Graham v.
, 250 Va. 79, 80, 81 and n.*, 83, 89, 459 S.E.2d
97, 97 and n.*, 98-99, 102, cert. denied, 516 U.S.
997 (1995) (death sentence imposed for murder in commission of
robbery based on both vileness and future dangerousness
predicates; defendant had 14 prior convictions; victim shot while
lying in parking lot); Strickler v. Commonwealth, 241 Va.
482, 487-88, 496-98, 404 S.E.2d 227, 231, 236-37, cert. denied,
502 U.S. 944 (1991) (death sentence imposed upon findings of
vileness and future dangerousness where defendant with eight
felony convictions took victim to deserted field and killed her;
death was not instantaneous); Gray, 233 Va. at 341,
352-54, 356 S.E.2d at 172-73, 179-80 (defendant with at least 13
prior felony convictions sentenced to die based on future
dangerousness and vileness after forcing victim into his car,
taking victim’s wallet and robbing victim’s store, and
then driving to secluded area where defendant shot victim six
times after assuring victim that he would not be harmed); Edmonds,
229 Va. at 304, 307, 312-14, 329 S.E.2d at 809-10, 813-15 (during
robbery, victim sustained multiple wounds including stab wound to
neck; defendant had 3 felony and 13 misdemeanor convictions;
death sentence imposed based on findings of vileness and future
dangerousness); Briley v. Commonwealth, 221 Va. 563,
566-68, 578, 580-81, 273 S.E.2d 57, 58-60, 66-68 (1980)
(defendant convicted of capital murder in commission of robbery
and sentenced to death based on findings of vileness and future
dangerousness; victim forced to lie on floor during rape of
victim’s mother and murder of both parents prior to
victim’s death by gunshot; defendant had numerous criminal
convictions including armed robbery and attempted murder).

Focusing on the statutory directive that this
Court’s proportionality review take into account not only
the crime but also the defendant, see Code
? 17.1-313(C), Atkins, however, does assert that he is
mentally retarded and thus cannot be sentenced to death. He bases
his argument upon his purported full scale IQ of 59 and contends
that the death penalty has not been imposed on any defendant in
this Commonwealth with an IQ score as low as his. In response,
the Commonwealth points out that the evidence was in conflict
regarding the question whether Atkins is mentally retarded.
Quoting from Penry v. Lynaugh, 492 U.S. 302 (1989), the
Commonwealth also contends that execution of a defendant who is
mentally retarded does not contravene the practices that were
condemned when the Bill of Rights was adopted or the evolving
standards of decency.

Atkins’ full scale IQ score was based on a
test known as the Wechsler Adult Intelligence Scale-III
(WAIS-III), which was administered to him by a forensic clinical
psychologist, Dr. Evan Stuart Nelson.
[8] According to Dr. Nelson, Atkins’ full scale IQ of
59 means that Atkins is mildly mentally retarded. See
American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders, Fourth Edition (DSM-IV) 40 (1994).
However, Dr. Nelson also acknowledged that Atkins might have
scored two or three points higher if he had not been mildly
depressed when Dr. Nelson administered the test.

Dr. Nelson further explained that a diagnosis
of mental retardation is not simply a question of an IQ score.
Mental retardation also involves the inability to function
independently as compared to the norm for persons of the same
age. Consequently, a diagnosis of mental retardation is based on
an individual’s IQ scores along with that person’s
ability to function in the world. Finally, despite his opinion
that Atkins is mildly mentally retarded, Dr. Nelson admitted that
Atkins’ capacity to appreciate the criminal nature of his
conduct was impaired, but not destroyed; that Atkins understood
that it was wrong to shoot Nesbitt; and that Atkins meets the
general criteria for the diagnosis of an antisocial personality

In addition to Dr. Nelson’s testimony, the
jury heard testimony from Dr. Stanton E. Samenow, a forensic
clinical psychologist called as a witness by the Commonwealth.
Based on two interviews with Atkins, Dr. Samenow "sharply
disagree[d]" with Dr. Nelson’s conclusion that Atkins
is mildly mentally retarded. Instead, Dr. Samenow testified that
Atkins is of at least average intelligence. Dr. Samenow based his
conclusion on Atkins’ vocabulary, knowledge of current
events, and other factors from the Wechsler Memory Scale,
Wechsler Adult Intelligence Scale and Thematic Apperception Test.
For example, Atkins knew that John F. Kennedy was the president
in 1961. He also correctly identified the last two presidents, as
well as Virginia’s current governor. Dr. Samenow further
explained that Atkins used "sophisticated words" such
as "orchestra," "decimal," and
"parable;" that Atkins could recall information Dr.
Samenow asked him to remember; and that Atkins could put together
a story involving cause and effect.

Dr. Samenow also reviewed Atkins’ academic
records and noted that, while Atkins had passed the Literacy
Passport Test, his academic performance had been terrible and
that his school records were "punctuated with
statements" by teachers about Atkins’ lack of
motivation and concentration, his poor study habits, and his
ability to do better in school. Finally, Dr. Samenow, like Dr.
Nelson, opined that Atkins was able to appreciate the criminality
of his conduct and to conform his behavior to the requirements of
the law, and that Atkins satisfies most of the criteria for the
diagnosis of an antisocial personality disorder.

The Supreme Court of the United States has
ruled that imposition of the death penalty on a mentally retarded
defendant with the approximate reasoning capacity of a
seven-year-old child does not violate the Eighth Amendment
prohibition against cruel and unusual punishment solely because
of the defendant’s mental retardation. Penry, 492
U.S. at 336, 340. In that case, the Court recognized that the
abilities and experiences of mentally retarded individuals vary.
Thus, the Court was unwilling to conclude that all mentally
retarded people, "by virtue of their mental retardation
alone, and apart from any individualized consideration of their
personal responsibility[,] inevitably lack the cognitive,
volitional, and moral capacity to act with the degree of
culpability associated with the death penalty." Id.
at 338. The Court also refused to rely on the concept of
"mental age," noting that it is problematic in several
respects and that courts have generally been reluctant to use it
as a basis for excusing a defendant from criminal responsibility.
Id. at 339. However, the Court did state that a
"sentencing body must be allowed to consider mental
retardation as a mitigating circumstance in making the
individualized determination whether death is the appropriate
punishment in a particular case." Id. at 337-38.

In Virginia, the mental retardation of a
defendant is one of the factors that may be considered in
mitigation of capital murder. Code ? 19.2-264.4(B).
Accordingly, the jury in the present case heard extensive, but
conflicting, testimony from Dr. Nelson and Dr. Samenow regarding
Atkins’ mental retardation. As in any case, it was the
responsibility of the jury to assess the credibility of the
witnesses and to determine the weight to be afforded to specific
evidence. Yarbrough v. Commonwealth, 258 Va. 347, 364, 519
S.E.2d 602, 610 (1999). The jury was instructed in the present
case to consider any evidence in mitigation of the offense, and
the jury obviously found that Atkins’ IQ score did not
mitigate his culpability for the murder of Nesbitt. See Yeatts
v. Commonwealth
, 242 Va. 121, 145, 410 S.E.2d 254, 268
(1991), cert. denied, 503 U.S. 946 (1992)(jury found
defendant’s mild mental retardation, based on full scale IQ
of 70, did not mitigate capital murder offense, and this Court
perceived no reason on appeal to disturb that finding). The
question of Atkins’ mental retardation is a factual one, and
as such, it is the function of the factfinder, not this Court, to
determine the weight that should be accorded to expert testimony
on that issue. Saunders v. Commonwealth, 242 Va. 107, 115,
406 S.E.2d 39, 43, cert. denied, 502 U.S. 944

In conducting the mandated proportionality
review and examining the records accumulated pursuant to Code
? 17.1-313(E), we do not find a capital murder case in
which testimony indicated that a defendant had a full scale IQ as
low as 59.
[9] Because Atkins asserts that he
cannot be sentenced to death due to his alleged mental
retardation, we must consider, as part of our proportionality
review, the same evidence heard by the jury regarding
Atkins’ mental capacity. In examining that evidence, we find
it significant that both Dr. Nelson and Dr. Samenow agreed
that a diagnosis of mental retardation involves more than merely
determining a person’s IQ score; it also requires
consideration of an individual’s adaptive functioning.

With regard to the issue of adaptive
functioning, Dr. Nelson testified that, in determining an
individual’s ability to function independently, it was
necessary to talk with family members, and to review school and
employment records. He further stated that he had followed
through on that inquiry by reviewing Atkins’ academic
records and talking to Atkins’ parents. As a result of the
inquiry, Dr. Nelson reported that Atkins had received poor
grades, failed many tests and classes, and was placed in remedial
academic courses on a number of occasions. He also stated that
Atkins’ parents described a number of deficits, but Dr.
Nelson never elaborated on the nature of those deficits. In other
words, Dr. Nelson never identified an area of significant
limitation in Atkins’ adaptive functioning other than what
he termed Atkins’ "academic failure."

In contrast, Dr. Samenow provided the following
explanation when asked whether Atkins has any impairment in his
adaptive functioning:

Well, Mr. Atkins never lived independently. In
other words, he was not a self-supporting member of society.
However, he told me he was able to wash his clothes, wash and dry
his clothes, he used his parents’ washing machine and dryer.
He told me — when I asked him if he was able to cook, he
gave me his recipe for cooking chicken.

This Defendant, . . . as I understand
it, lived a life in which he didn’t work, and I don’t
mean just didn’t hold a job, that he didn’t do, but
then again there are a lot of 18-year-olds who maybe haven’t
worked because they’ve been in school. But he didn’t work in
school either.

So the point is he chose a certain — to
live a certain way of life, and there was no lack of ability to
adapt and to take care of basic needs, certainly.

Thus, considering "both the crime and the
defendant," Code ? 17.1-313(C), and the record before
us, we cannot say that Atkins’ sentence of death is
excessive or disproportionate to sentences generally imposed in
this Commonwealth for capital murders comparable to Atkins’
murder of Nesbitt. We are not willing to commute Atkins’
sentence of death to life imprisonment merely because of his IQ
score. Dr. Nelson and Dr. Samenow agreed that an IQ score is not
the sole definitive measure of mental retardation. Both experts
also testified that Atkins was able to appreciate the criminality
of his conduct and understood that it was wrong to shoot

Accordingly, we perceive no reason to commute
Atkins’ sentence of death and will affirm the judgment of
the circuit court.


joins, concurring in part and dissenting in part.


Code ? 17.1-313, which requires that this
Court review a sentence of death, states in relevant part that we
must consider "[w]hether the sentence of death is excessive
or disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant." I dissent
because I believe that the imposition of the sentence of death
upon a mentally retarded defendant with an IQ of 59 is excessive
and disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant.


Dr. Evan S. Nelson qualified as an expert
witness on the subjects of clinical and forensic psychology. He
testified on behalf of the defendant, Daryl Renard Atkins. Dr.
Nelson reviewed the defendant’s school records, psychological
test data, and certain information related to the defendant’s
capital murder conviction and his prior convictions. Dr. Nelson
also interviewed members of the defendant’s family.

Dr. Nelson administered the Wechsler Adult
Score, also referred to as the WAIS-III intelligence test, to the
defendant. This test was designed to measure the defendant’s IQ.
Dr. Nelson stated:

"There are a number of IQ tests on the
market. Some of them are for special niches of population. But
the WAIS is one of the two that is recognized throughout the
United States as a standard for assessing intelligence.

"It’s the one that’s most frequently
cited, for example, in state laws for identifying who qualifies
for a learning disability or a mental retardation, the one that’s
most often cited in Federal disability laws for making
determinations involving an IQ or neurologic deficits."

According to Dr. Nelson, there are 13 major
subsections of the test that he administered to the defendant.
Dr. Nelson administered all 13 of the major subsections to the
defendant and determined that the defendant had a full-scale IQ
of 59. Dr. Nelson observed:

"Mental retardation is about two things.
Number one, it’s about an IQ of around 70 or below, and there
[is] some space there, 70 or plus or minus five points is the
official criteria. . . .

"Secondly, adaptive behavior. Being
mentally retarded isn’t just a low score on this test. It’s about
lacking certain abilities to function independently compared to
what you’d expect for other persons your age. That’s a really
important criteri[on]. Because there are some people who can
score really well or really poorly on this test but who either do
or don’t function well in society. So you have to go out and find
out by talking with family members and school records and
employment records, if they have any, about how they function in
the world at large. You need the two of them together to be able
to say someone is mentally retarded."

Dr. Nelson, who is a specialist in the
assessment of mental illnesses, opined that the defendant was
mentally retarded based upon his IQ score of 59 and his
limited capacity for adaptive behavior. Dr. Nelson pointed out
that in addition to the defendant’s low IQ score of 59, the
defendant’s public school academic records "are crystal
clear that he has been an academic failure since the very
beginning." Dr. Nelson testified that the "lack of
variation" in the defendant’s performance on the IQ test
indicates that the test was properly administered and that the
defendant was not "faking" when he took the test.

Even though the defendant was not classified as
mentally retarded when he was a student in the Hampton Public
Schools Division, his academic performance was very poor. He
scored below the 20th percentile in almost every standardized
test he took. He failed the second and tenth grades. He was
socially advanced from the fourth grade to the fifth grade.

When the defendant was an eighth-grade student,
he received failing grades in all his classes, and he scored in
the 15th percentile of standardized achievement tests. When he
was a tenth-grade student, he scored in the 6th percentile. The
defendant, when a student in high school, was placed in
lower-level classes for slow learners and classes with intensive
instruction for remedial deficits. His grade point average in
high school was 1.26 out of a possible 4.0. The defendant did not
graduate from high school.

Dr. Stanton E. Samenow qualified as an expert
witness in the subjects of clinical psychology and forensic
psychology. He testified on behalf of the Commonwealth. Dr.
Samenow interviewed the defendant twice. Dr. Samenow did not
administer an IQ test to the defendant. Rather, he asked the
defendant some questions.

Dr. Samenow testified that the defendant was
able to relate to him certain recent events and historical facts.
For example, the defendant knew the name of the Governor of
Virginia and knew that former President John F. Kennedy’s son had
died in an airplane accident. The defendant was also able to
associate certain words and to tell a story utilizing certain
pictures. Dr. Samenow did not give the defendant a complete
intelligence test, but essentially picked and chose certain
questions from various tests to query the defendant.

For example, during cross-examination, Dr.
Samenow testified:

"As I indicated . . . I gave
portions of the Wechsler Memory Scale, the selected items of the
Wechsler Adult Intelligence Scale, namely, from similarities,
vocabulary and comprehension, and I also gave the Thematic
Apperception Test, which in itself is not an intelligence test
but it certainly does give some indication of a person’s use of
syntax, language, vocabulary, and these were portions. I want to
underscore, and I said this yesterday, portions of those

Dr. Samenow also gave the following testimony:

"Q: In your interviews with the Defendant,
did you ascertain any evidence suggestive of mental retardation?

"A: I found absolutely no evidence other
than the IQ score that I knew of, because I reviewed a number of
materials. No evidence did I find other than that indicating that
the Defendant was in the least bit mentally retarded.

"Q: Do you have an expert opinion as to
the Defendant’s intellect?

"A: He is of average intelligence, at

"Q: Explain the basis of how you came to
this conclusion.

"A: Largely though several indices. One is
the vocabulary and syntax that he used in talking with me. And I
have many examples."

Significantly, Dr. Samenow testified that Dr.
Nelson’s calculations of the scores on the tests administered to
the defendant to ascertain the defendant’s IQ were correct. Dr.
Samenow did not conduct a full evaluation of the defendant, nor
did he use questions from the most recent test when he examined
the defendant.


"Mental retardation refers to substantial
limitations in present functioning. It is characterized by
significantly subaverage intellectual functioning, existing
concurrently with related limitations in two or more of the
following applicable adaptive skill areas: Communication,
self-care, home living, social skills, community use,
self-direction, health and safety, functional academics, leisure,
and work. Mental retardation manifests itself before age

Carroll J. Jones, An Introduction to the
Nature and Needs of Students with Mild Disabilities: Mild Mental
Retardation, Behavior Disorders, and Learning Disabilities
39 (1996).

Persons with an IQ level in the range of 50
through 55 to 70 are classified as having mild mental
retardation. The following table of diagnostic criteria for
mental retardation appears in Kaplan & Sadock’s
Comprehensive Textbook of Psychiatry
2598, Benjamin J. Sadock
& Virginia A. Sadock eds., (7th ed. 2000):

"Mental Retardation IQ range
Mental age (years)

Mild 50-69 9 to under 12

Moderate 35-49 6 to under 9

Severe 20-34 3 to under 6

Profound Below 20 Less than 3"

According to Doctors Kaplan & Sadock:

"Mild mental retardation (I.Q., 55 to 70)
characterizes the largest group of persons with mental
retardation, possibly as many as 85 percent of the total. These
individuals appear similar to nonretarded individuals and often
blend into the general population in the years before and after
formal schooling. Many achieve academic skills at the sixth grade
level or higher, and some graduate from high school. As adults,
many of these individuals hold jobs, marry, and raise families
— yet at times they may appear slow or need extra help
negotiating life’s problems and tasks."

Id. The evidence of record shows that
the defendant’s full-scale IQ score of 59 falls within the range
considered mild mental retardation. Less than one percent of the
American population at large has a score of 59 or below.

I would commute the defendant’s sentence of
death to life imprisonment without the possibility of parole
because I believe that the sentence of death is "excessive
. . . to the penalty imposed in similar cases,
considering both the crime and the defendant." Upon my
independent review of the entire record in this case, see Vinson
v. Commonwealth, 258 Va. 459, 472, 522 S.E.2d 170, 179
(1999), cert. denied, ___ U.S. ___, 120 S.Ct. 2226
(2000), it is clear that this defendant is mentally retarded.
This defendant, who has an IQ of 59 and a limited capacity for
adaptive behavior, has the cognitive ability or mental age of a
child between 9 and 12 years of age. This Court has never
approved of the imposition of the death penalty upon a defendant
who is mentally retarded and has an IQ as low as 59.

I simply place no credence whatsoever in Dr.
Samenow’s opinion that the defendant possesses at least average
intelligence. I would hold that Dr. Samenow’s opinion that the
defendant possesses average intelligence is incredulous as a
matter of law. Indeed, I am perplexed that Dr. Samenow, who did
not administer a complete IQ test to the defendant and admittedly
asked the defendant questions based upon bits and pieces of
outdated tests to supposedly evaluate the defendant, would opine
that this defendant possesses at least average intelligence.

Dr. Samenow admitted that he does not contest
the manner in which Dr. Nelson computed the defendant’s IQ
scores. Additionally, Dr. Samenow admitted that some of the
questions he administered to the defendant were based upon a test
developed in 1939. Dr. Samenow described this test as "[a]n
old standard," yet, he used this obsolete test even though
he acknowledged that the Ethical Principles of Psychologists
and Code of Conduct
, Ethical Standards 2.07 (1992) of the
American Psychological Association, prohibits the use of obsolete
tests and outdated test results and specifically states that
"psychologists do not base such decisions or recommendations
on tests and measures that are obsolete and not useful for the
current purpose."

Moreover, according to the testimony and
medical literature, an assessment of mental retardation is
predicated upon the subject’s IQ score and the subject’s
adaptive behavior. Dr. Samenow, however, could not validly opine
about the defendant’s adaptive behavior because he had not
interviewed anyone who had observed the defendant prior to his
incarceration. Additionally, Dr. Samenow’s methodology is flawed
because when he improperly administered portions of certain
tests, he failed to comply with the relevant instructions for
those tests.

Also, I place no credence in Dr. Samenow’s
opinion that the defendant possesses an average intelligence
because of the defendant’s vocabulary and his ability to relate
certain historical facts to Dr. Samenow. It is common knowledge
that many children as young as eight years old are capable of
relating the same historical facts that the defendant described
and possess a vocabulary similar to the defendant’s vocabulary.

I recognize that the United States Supreme
Court has held that the imposition of the death penalty upon
mentally retarded criminal defendants does not violate the Eighth
Amendment to the United States Constitution. See Penry
v. Lynaugh, 492 U.S. 302, 340 (1989). However, the issue
in this appeal is not whether the imposition of capital
punishment upon a mentally retarded criminal defendant violates
the federal Constitution. Rather, the issue in this appeal is
whether under Code ? 17.1-313 the imposition of the
sentence of death is excessive or disproportionate to the penalty
imposed in similar crimes, considering both the crime and the
defendant. I would answer that question in the affirmative. I
believe that the imposition of the sentence of death upon a
criminal defendant who has the mental age of a child between the
ages of 9 and 12 is excessive, considering both the crime and the


I recognize that this defendant has a history
of violent criminal behavior. I also recognize that this
defendant is clearly a significant danger to society. Therefore,
I would commute this defendant’s sentence to life imprisonment
without the possibility of parole.


joins, dissenting.


I agree with the view expressed in detail in
Justice Hassell’s dissent in this case. For the reasons
expressed therein and for the following reasons, I would also
commute Daryl Renard Atkins’ death sentence to imprisonment
for life without the possibility of parole. Code
?? 17.1-313 and 53.1-165.1.

Justice Hassell correctly observes that
"[t]his Court has never approved the imposition of the death
penalty upon a defendant who is mentally retarded and has an IQ
as low as 59." In footnote 9, the majority refers to Mackall
v. Commonwealth
, 236 Va. 240, 372 S.E.2d 759 (1988), to note
that this Court has upheld, however, a sentence of death for a
defendant with an IQ of 64 who was convicted of capital murder
committed during a robbery. In another part of its opinion, the
majority further correctly notes that "Dr. Nelson also
acknowledged that Atkins might have scored two or three points
higher if he had not been mildly depressed when Dr. Nelson
administered the [IQ] test." In doing so, apparently the
majority suggests that there is no significant distinction
between Atkins’ full scale IQ and that of Mackall. In my
view, our statutory mandate under Code ? 17.1-313 to
determine "[w]hether the sentence of death is excessive or
disproportionate to the penalty imposed in similar cases"
does not, and should not, lend itself to mathematical
calculations and comparisons of specific degrees of mental
retardation of defendants sentenced to death. Unlike the
circumstances existing when Mackall was decided, however,
the legislature, with the enactment of Code ? 53.1-165.1,
has effectively provided that a death sentence commuted to a life
sentence shall be a life sentence without the possibility of
parole. That change in the law is a valid consideration in the
determination of whether a particular death sentence is

Moreover, it is indefensible to conclude that
individuals who are mentally retarded are not to some degree less
culpable for their criminal acts. By definition, such individuals
have substantial limitations not shared by the general
population. A moral and civilized society diminishes itself if
its system of justice does not afford recognition and
consideration of those limitations in a meaningful way. Such must
certainly be the case when our system of justice demands, as it
does, that even the mentally retarded be held responsible for
criminal acts for which the legislature has determined to be
properly subject to a death sentence or a sentence of life
without the possibility of parole. The choice is clear and
limited. In my view, the execution of a mentally retarded
individual rather than the imposition of a sentence of life
without the possibility of parole is excessive. I would not
permit such a result in Atkins’ case even though his crime
was vile and his guilt undeniable. For these reasons, I
respectfully dissent.


[1] Atkins was also convicted of
abduction, robbery, and use of a firearm while committing those
offenses. In his first appeal, he did not challenge these
convictions. Atkins, 257 Va. at 163 n.1, 510 S.E.2d at 447

[2] We recited the evidence in the
record in our prior decision, Atkins, 257 Va. at 165-69,
510 S.E.2d at 449-51. We need not repeat that evidence here,
except to the extent necessary as part of our analysis of
Atkins’ assignments of error in this appeal.

[3] In addition, the
Commonwealth filed a motion in limine to prohibit Atkins from
presenting evidence or argument with regard to any factual issue
concerning his guilt. The circuit court granted the motion, and
ordered Atkins and his counsel "to refrain from any attempt,
during the resentencing proceeding, to inquire into, comment upon
or argue any factual issue relative to [Atkins’] guilt." Atkins has not assigned error to the circuit
court’s order granting the motion in limine. See Rule

[4] That precedent does not mean that
a defendant can never present evidence from the guilt phase of a
trial at a subsequent resentencing hearing. Depending on the
facts of each case, certain guilt-phase evidence may also be
relevant to issues at resentencing, especially if the vileness
predicate is at issue. Even when such evidence is relevant, a
defendant still cannot argue or present evidence concerning
"residual doubt." Stockton, 241 Va. at 210-11,
402 S.E.2d at 206-07.

[5] Atkins’ counsel proffered to
the court that Lyons would also testify that Atkins admitted his
involvement in certain crimes committed in the City of Hampton.
The orders showing Atkins’ convictions for those crimes had
already been introduced into evidence and, as noted by the
Commonwealth, reflected whether Atkins had pled guilty to those
crimes. The circuit court sustained the Commonwealth’s
objection to this additional evidence also on the basis that it
was hearsay.

After the court sustained the
Commonwealth’s objections, Atkins’ counsel did not ask
Lyons any additional questions and advised the court that Lyons
was no longer needed as a witness.

[6] Instead, the circuit court
instructed the jury that it should consider any evidence
presented in mitigation of the offense that tended to make life
imprisonment without the possibility of parole a more appropriate
punishment than death.

[7] Pursuant to Code ? 17.1-313(E), we have
accumulated the records of all capital murder cases reviewed by
this Court. Those records include not only cases in which the
death penalty was imposed, but also those in which a life
sentence was imposed and the defendant appealed to this Court. Orbe
v. Commonwealth
, 258 Va. 390, 404, 519 S.E.2d 808, 816
(1999), cert. denied, ___ U.S. ___, 120 S.Ct. 1970
(2000) (citing Whitley v. Commonwealth, 223 Va. 66, 82,
286 S.E.2d 162, 171, cert. denied, 459 U.S. 882

[8] On the same test, Atkins also had a verbal IQ score of
64 and a performance IQ score of 60.

[9] In Mackall v. Commonwealth,
236 Va. 240, 256, 372 S.E.2d 759, 769 (1988), cert. denied,
492 U.S. 925 (1989), we upheld a sentence of death for a
defendant with an IQ of 64 who was convicted of capital murder
committed during a robbery. See also Correll v.
, 232 Va. 454, 467, 352 S.E.2d 352, 359
(1987)(death penalty upheld for defendant who scored 68 on IQ

In Freeman v. Commonwealth, No. 830920
(Va. Jan. 25, 1984), this Court examined the capital murder
conviction of a defendant with a full scale IQ of 61. We denied
that defendant’s petition for appeal, in which the only
assigned error was the failure of the trial court to allow him to
withdraw his guilty plea. That defendant argued on brief that his
"limited intelligence" and "fear" caused him
to plead guilty.

[10] According to the DSM-IV,
"[t]he essential feature of Mental Retardation is
significantly subaverage general intellectual functioning . . .
that is accompanied by significant limitations in adaptive
functioning in at least two of the following skill areas:
communication, self-care, home living, social/interpersonal
skills, use of community resources, self-direction, functional
academic skills, work, leisure, health, and safety . . . ."
DSM-IV at 39.

[11] The dissent acknowledges that a diagnosis of mental
retardation requires not only a finding of subaverage
intellectual functioning but also limitations in two or more
adaptive skill areas. However, the dissent is likewise unable to
point to any finding by Dr. Nelson regarding deficits in
Atkins’ adaptive functioning other than his poor academic