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September 15, 2000

Record No. 992894

Thomas Wayne Akers


Commonwealth of Virginia


William N. Alexander, II, Judge

Present: All the Justices


Thomas Wayne Akers received a death sentence
upon a plea of guilty to a charge of capital murder during the
commission of a robbery, Code ? 18.2-31(4), in the death of
Wesley B. Smith.
[1] Although Akers has waived his appeal of right, Code
? 17.1-313 mandates that we review the death sentence. We
must consider and determine whether the sentence of death was
imposed "under the influence of passion, prejudice or any
other arbitrary factor," Code ? 17.1-313(C)(1), and
whether that sentence is "excessive or disproportionate to
the penalty imposed in similar cases, considering both the crime
and the defendant." Code ? 17.1-313(C)(2).


On the morning of December 19, 1998, responding
to a citizen report that a body was located there, Franklin
County Sheriff’s Department Investigator F.M. Jamison went
to a field at the intersection of State Route 40 and Sawmill Road
in Franklin County. Jamison discovered three pools of blood on
the shoulder of the road and "a clear drag mark which was
saturated with blood that went down the hill toward a
creek." Following the trail of blood, Jamison discovered
Smith’s body, which was covered with blood and bore the
unmistakable signs of a savage beating including "[s]everal
wounds to the back of his head, deep cuts, hair knocked off his
head, a lot of blood on his shirt and his coat, and a large pool
of blood under his face". Searching further, Jamison found
an aluminum baseball bat "lying in the creek partially
submerged" twelve to fifteen feet from Smith’s body.
Subsequent laboratory testing established that Smith’s blood
was on the bat.

Forensic examination of Smith’s body
revealed that he had been struck a minimum of three times in the
head "and probably a great deal more than three" times.
As a result, Smith suffered several fractures to his skull
causing a subdural hematoma. The blows were not instantly fatal,
and it would have taken "minutes to hours, at least,"
before Smith died. In addition to the lethal wounds inflicted to
his head, Smith suffered numerous defensive wounds to his hands
and arms. He also had been struck several times on his back, and
his neck was bruised in a manner consistent with an attempted
strangulation by ligature. The ligature marks were consistent
with the size and shape of a belt subsequently discovered in
Smith’s car.

Franklin County Sheriff’s Department
Investigator H.T. Woods interviewed Smith’s mother, his
sister, and George Slusser, a family friend. Based on these
interviews, Woods determined that on the evening of December 18,
1998, Slusser had visited Smith at his apartment in Roanoke. At
approximately 8:00 p.m., Akers and Timothy Martin, Akers’
cousin, arrived at Smith’s apartment. Martin and Smith had
been acquainted for some time and Martin had recently introduced
Smith to Akers. Akers and Martin told Smith that they had set him
up for a "blind date." The four men left the apartment
and drove in Smith’s car a short distance away to drop
Slusser off at the home of his girlfriend. Akers, Martin, and
Smith were seen together later that evening at a Roanoke

After it was discovered that Smith had been
murdered, that Smith’s apartment had been ransacked, and
that several items of value were missing from the apartment,
arrest warrants were issued for Akers and Martin for the murder
and robbery of Smith, along with a bulletin for law enforcement
officers to be on the lookout for Smith’s car, which had
vanity plates reading "WESMODE." On December 22, 1998,
an officer with the St. Regis Mohawk Tribal Police in northern
New York observed Smith’s car in an area of the Mohawk
reservation near the Canadian border known for smuggling activity
and illegal alien entry. Upon learning that the vehicle and its
occupants were wanted in Virginia, tribal police stopped the car
and took Akers and Martin into custody. Akers subsequently
attempted to flee from a room at the police station and when he
was subdued he told the tribal police officers, "It’s a
good day to die."

When he was arrested, Akers was in possession
of Smith’s wallet. A search of Smith’s car revealed
numerous items from Smith’s apartment, the belt used as a
ligature, and a pair of black boots covered with Smith’s
blood. The boots were subsequently identified as belonging to

Thereafter, Akers talked openly with other
prisoners about Smith’s murder. Akers stated that he,
Martin, and Smith had stopped at the field to urinate. Akers took
the belt and placed it around Smith’s neck, using it to drag
Smith away from the car. Akers then held Smith down on the ground
and choked him with the belt. Akers and Martin then took turns
beating Smith with the baseball bat, which they had found in
Smith’s car. Smith resisted and begged the two men to stop.
Akers and Martin then dragged Smith to the creek where they beat
him again and abandoned him, throwing the baseball bat into the

Akers subsequently admitted to the killing in
letters sent to the Commonwealth’s Attorney. In one letter,
Akers admitted that "[i]t was my full intent to kill and rob
Wesley Smith after I got acquainted with him," and that he
had taken approximately two hundred dollars from Smith’s
wallet. In another letter, Akers admitted beating Smith to death
before returning to Smith’s apartment to have "a decent
meal and change into [Smith’s] clothes and [take] a
pleasurable trip to New York." Akers further stated that he
left his boots "all blood covered for the
Commonwealth." Akers later told the probation officer
preparing his presentence report that he planned to kill Smith
because Martin had told him that Smith "was going to get 20
other people to assault Martin."

Prior to the entry of his guilty plea, Akers
was evaluated by Evan S. Nelson, Ph.D., a licensed clinical
psychologist, and was found competent to enter that plea. At a
hearing held on September 28, 1999, the trial court heard
evidence in accord with the above-recited facts, and thereafter
accepted Akers’ guilty plea and ordered that a presentence
report be prepared.

Akers had directed his attorneys not to present
any evidence on his behalf during the guilty plea hearing or at
his sentencing hearing. Following the guilty plea hearing, the
trial court instructed Akers’ counsel to obtain a further
opinion from Dr. Nelson concerning Akers’ competence to
waive his right to present evidence in mitigation at sentencing.
In a letter to Akers’ counsel subsequently received into
evidence by the trial court at the sentencing hearing, Dr. Nelson
opined that "Akers possessed the capacity to rationally
understand, appreciate, and consider the consequences of his plea
of guilty." Dr. Nelson further opined that while "[i]t
makes all parties uncomfortable to see a defendant choose to
place himself in the [worst] legal position possible" by
waiving his right to present evidence in mitigation, there was
"no viable reason to question [Akers’] competency to do

Following the preparation of the presentence
report, the trial court held a sentencing hearing on November 5,
1999. At that hearing, the Commonwealth, relying on the evidence
from the guilty plea hearing, contended that the killing of Smith
was vile in that it involved an aggravated battery, torture of
the victim, and resulted from depravity of mind. Code
? 19.2-264.2. The Commonwealth also contended that Akers
represented a continuing threat to society. Id. In support
of this latter contention, the Commonwealth presented evidence of
Akers’ extensive criminal history including four convictions
for robbery and seven convictions for larceny. Akers had also
been convicted of assaulting correctional officers while in
prison and had numerous notations of infractions in his prison
record including disciplinary actions for thirty-two assaults.
The Commonwealth offered additional evidence showing that while
in jail awaiting trial in this case, Akers repeatedly assaulted
jail officers and destroyed and defaced jail property.

Akers told the trial court that he wanted to
receive a death sentence. Akers reiterated to the trial court
statements that he had made orally and in letters to the trial
court, the police, his counsel, and the Commonwealth’s
Attorney at various times since his arrest that he would
"plot and scheme behind bars and escape and come back to
Franklin County" to commit additional murders if he were
given a life sentence. When asked if he had anything to say prior
to sentencing, Akers said, "I have no sympathy or remorse
for what I did, and I plan to commit another capital murder in
the future." In imposing the death sentence, the trial court
found that the aggravating factors of vileness in the commission
of the murder and of future dangerousness to society were both

Pursuant to Code ? 17.1-313(C), we are
required to consider "any errors in the trial enumerated by
appeal" in any case where a sentence of death is imposed.
Accordingly, the trial court is required to forward the trial
record of such case to this Court where an appeal of right will
be heard. Code ? 17.1-313(A).

After the trial court record was received,
Akers notified this Court of "his intent not to participate
in [the] appeal" permitted pursuant to Code
? 17.1-313. We returned the record to the trial court with
instructions that a hearing be held to determine whether
Akers’ waiver of appeal was voluntarily and intelligently
made. On March 16, 2000, the trial court conducted that hearing
and determined that Akers voluntarily and intelligently waived
his right to participate in the appeal. On April 4, 2000, the
trial court entered an order reflecting its findings and returned
the record to this Court in order that we might conduct the
mandated review of the death sentence.


Akers instructed his attorneys to file no brief
in support of commuting his death sentence. The review process
mandated by Code ? 17.1-313(C) cannot be waived. Rather,
the purpose of the review process is to assure the fair and
proper application of the death penalty statutes in this
Commonwealth and to instill public confidence in the
administration of justice. Accordingly, by order of this Court
dated April 21, 2000, we instructed Akers’ attorneys to file
a brief limited to the issues to be considered under the
statutorily mandated review of Akers’ death sentence.

Counsels’ duty to assist the Court in this
process as officers of the Court does not conflict with their
concomitant duty to represent the defendant in the manner he
desires. Undeniably, these concomitant duties may place counsel
in an ethically difficult and, as Akers’ counsel noted
during oral argument of this appeal, professionally
"frustrating" position. The record in this case,
however, demonstrates that counsel may, without violating the
express directives of the defendant concerning his desired manner
of representation, fulfill the obligations owed to the trial
court and this Court on appeal. In this manner, both the
interests of the defendant, as he determines them, and the
interests of justice are served.

Pursuant to Code ? 17.1-313(C)(1), we now
consider whether the death sentence in this case was imposed
"under the influence of passion, prejudice or any other
arbitrary factor." The brutality of the crime amply
demonstrates the vileness and depravity of mind involved in the
murder of Smith. Similarly, Akers’ stated lack of remorse
and his insistence that he would commit further acts of violence
if allowed any modicum of freedom demonstrates Akers’ future
dangerousness to society. In light of these facts and upon
careful review of the whole record, we find no evidence that the
trial court’s sentencing decision was influenced by passion,
prejudice, or any arbitrary factor, but was, in fact, wholly
grounded in a reasonable evaluation of the evidence.

Pursuant to Code ? 17.1-313(C)(2), we
next focus our consideration on whether the sentence of death in
this case is "excessive or disproportionate to the penalty
imposed in similar cases, considering both the crime and the
defendant." In accordance with Code ? 17.1-313(E), we
have accumulated the records of all capital murder cases reviewed
by this Court. The records include not only those capital murder
cases in which the death penalty was imposed, but also those
cases in which the trial court or jury imposed a life sentence
and the defendant petitioned this Court for an appeal. Whitley
v. Commonwealth
, 223 Va. 66, 81-82, 286 S.E.2d 162, 171, cert.
, 459 U.S. 882 (1982).

"The purpose of our comparative review is
to reach a reasoned judgment regarding what cases justify the
imposition of the death penalty. We cannot insure complete
symmetry among all death penalty cases, but our review does
enable us to identify and invalidate a death sentence that is
‘excessive or disproportionate to the penalty imposed in similar
cases.’ " Orbe v. Commonwealth, 258 Va. 390, 405, 519
S.E.2d 808, 817 (1999), cert. denied, ___ U.S. ___,
120 S.Ct. 1970 (2000). In complying with the statutory directive
to compare this case with similar cases, we have specifically
focused on cases analogous to the facts in this record where the
predicate offense was robbery and the death sentence was imposed
upon a finding by the trial court that both aggravating factors
were present. See, e.g., Stout v. Commonwealth,
237 Va. 126, 376 S.E.2d 288, cert. denied, 492 U.S. 925
(1989); Poyner v. Commonwealth, 229 Va. 401, 329 S.E.2d
815, cert. denied, 474 U.S. 865 (1985); Edmonds v.
, 229 Va. 303, 329 S.E.2d 807, cert. denied,
474 U.S. 975 (1985). In each instance, the evidence of the
vileness of the crime and the defendant’s future
dangerousness to society is equaled or exceeded by the evidence
presented by the Commonwealth on these issues in this case.

Akers presents no argument that the sentence of
death in his case is disproportionate, and based on our review of
this case and similar cases we conclude that the sentence of
death is neither excessive nor disproportionate to sentences
generally imposed in this Commonwealth for capital murders
comparable to Akers’ murder of Smith.


Accordingly, we perceive no reason to commute
the death sentence in this case and will affirm the judgment of
the trial court.



[1] Akers also pleaded guilty to
having robbed Smith, Code ? 18.2-58, and was sentenced to
life imprisonment for that offense. Akers has not appealed that

[2] At the sentencing hearing,
Akers’ attorneys proffered to the trial court evidence in
mitigation that they would have presented had Akers allowed them
to do so. The proffer consisted principally of evidence
concerning Akers’ "horrible" childhood, prior
psychiatric treatment, and testimony of his mother and

[3] While our consideration of
the trial court’s judgment is thus limited by Akers’
waiver, we note that the evidence adduced by the Commonwealth
establishes Akers’ guilt beyond any reasonable doubt and
that the record adequately supports the trial court’s
determinations that Akers’ guilty plea, his subsequent
refusal to participate in his sentencing, and his waiver of his
appeal of right were voluntary, informed decisions on his part.