Atkins, Daryl Renard v. Commonwealth

PRESENT: All the Justices
DARYL RENARD ATKINS
OPINION BY
v. Record Nos. 981477 & 981478 JUSTICE LAWRENCE L. KOONTZ, JR.
February 26, 1999 *
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF YORK COUNTY
N. Prentis Smiley, Jr., Judge
In this appeal, we review the capital murder conviction and
death sentence imposed by a jury on Daryl Renard Atkins.
I.
PROCEEDINGS
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 §§ 18.2-48, -58, and -31(4). Atkins was also
charged with use of a firearm while committing each of these
offenses. Code § 18.2-53.1. 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
*
The January 8, 1999 opinion was withdrawn when a petition
for rehearing was granted February 23, 1999.
1
Prior to trial, Atkins pled guilty to the abduction and
robbery charges and their associated firearm crimes. He does
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 Nesbitt’s 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
not challenge his convictions or sentences for these crimes in
this appeal.
2
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 brother’s 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 §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. 2 The Commonwealth further noted that it
had acquired information that, contrary to her testimony,
2
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.
3
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 Christian’s 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 [Christian’s] truthfulness” at the time she was examined.
Noting its express concern over “the apparent oversight or
flagrant incorrect answer to the Court’s question and to
counsel’s 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.
II.
EVIDENCE
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
4
the afternoon of August 16, 1996, William A. Jones 3 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 buy liquor.
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
3
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.
5
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 passenger’s side of the truck and Jones
went to the driver’s 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 driver’s side and
Atkins entered from the passenger’s side.
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 bank’s 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.
6
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 grandfather’s
house in Yorktown where they could leave Nesbitt and directed
Jones to drive toward Yorktown on Interstate 64. Nesbitt asked
them “just don’t 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 driver’s
side door, Jones rolled down the driver’s side window and
“jumped” out of the truck.
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 Nesbitt’s 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 Nesbitt’s truck.
After leaving Atkins at the emergency room, Jones drove to
a motel in Newport News where he abandoned Nesbitt’s truck.
7
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 never recovered.
Garland S. Clay discovered Nesbitt’s 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 Sheriff’s Office, arrived at
the crime scene at 5:15 a.m.
Lyons discovered six shell casings near Nesbitt’s 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
Nesbitt’s 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 father’s girlfriend,
8
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 Nesbitt’s 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
Nesbitt’s body, a bullet recovered from Nesbitt’s truck, and a
bullet recovered from Atkins’ leg. Bloodstains found on the
passenger seat and interior passenger side door of Nesbitt’s
truck were identified as consistent with either Nesbitt’s or
Atkins’ blood types. None of the tested samples was identified
as likely to have come from another source.
Subsequent to his arrest and prior to his trial, while an
inmate in the York County jail, Atkins shared a cell with
9
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 “wouldn’t find
the weapon . . . they didn’t 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 Nesbitt’s truck, and then gave the
handgun to Atkins so that Jones could drive. Atkins admitted
taking money from Nesbitt’s wallet and forcing Nesbitt to
withdraw money from the automatic teller machine.
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
10
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 § 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
Nesbitt’s mother. After concluding the presentation of this
evidence, the Commonwealth rested, and Atkins made a motion to
strike the Commonwealth’s evidence as to the aggravating factor
of vileness on the ground that no evidence presented in the
11
penalty phase would support such a finding. Code § 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 Nesbitt’s 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. 4 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.”
4
Dr. Nelson explained that “the full scale IQ score is not a
simple mathematical average between 64 and 60. It’s actually
putting all of the items back together, charting out a graph of
the scores and then figuring out where people stand.”
12
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
Commonwealth’s 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 Commonwealth’s second instruction defined “imprisonment
for life” to mean “life without possibility of parole.” The
Commonwealth’s 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
13
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
Commonwealth’s], 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 Commonwealth’s 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 Defense’s, 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
14
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 reasonable doubt.
The Commonwealth’s 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 reasonable doubt.
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 defense’s 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 Commonwealth’s proposed verdict form. Atkins
did not object to the content of the Commonwealth’s verdict form
15
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. Nelson’s 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 jury’s
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 jury’s findings of future
dangerousness and vileness, precluding the possibility of it
16
imposing the mandatory sentence of life imprisonment in the
absence of such factors. The trial court then confirmed the
jury’s verdict and sentenced Atkins to death. This appeal
followed.
III.
DISCUSSION
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. 5
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
5
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.
17
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. 6 We find no reason to
modify our previously expressed views on these issues.
Atkins further assigns error to the trial court’s failure
to grant him additional peremptory strikes during jury
selection. See Code § 19.2-262. We have repeatedly held that
there is no right to additional peremptory challenges in a
6
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 jury’s 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 jury’s discretion).
18
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 court’s denial of his
motion in limine to have a blood sample taken from Jones or in
the alternative limiting the Commonwealth’s 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 O’Dell 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
19
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 Commonwealth’s 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 Commonwealth’s 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
Commonwealth’s contention that Christian had failed to answer
the trial court’s and counsel’s 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 prosecution’s
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 Commonwealth’s articulated race-neutral reason for
20
striking the prospective juror. A trial court’s 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 Commonwealth’s 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 Christian’s truthfulness. The trial court accepted
the Commonwealth’s stated basis for its action, and that
decision is clearly supported by the record.
D. Admission of Atkins’ Statement to Police
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
21
“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
22
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 jury’s 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
23
trial court’s 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 § 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 jury’s determination that, beyond a
reasonable doubt, Atkins was directly responsible for Nesbitt’s
death and that Atkins was the triggerman. Accordingly, the
trial court did not err in refusing to set aside the conviction
for capital murder.
24
F. The Verdict Form 7
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
7
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 court’s failure to give
such an instruction sua sponte and, thus, that the issue was not
properly preserved for appeal. Rule 5:25.
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
§ 19.2-264.4(D).
25
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 § 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 Commonwealth’s
verdict form that was erroneous and, thus, when the trial court
accepted the Commonwealth’s 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
Commonwealth’s form. 8
8
We note further that, while not raising a precise objection
to the Commonwealth’s 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 actually given).
26
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 Defense’s” except that the alternative
findings varied in order. This simply was not accurate. The
Commonwealth’s 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 Commonwealth’s 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
Commonwealth’s proposed verdict form and Atkins’ form, Atkins’
counsel was entitled to rely upon the Commonwealth’s
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 court’s use of the Commonwealth’s 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 court’s
instruction, that it was required first to find that at least
27
one of the aggravating factors was present. The jury was
presented with a confusing situation in which the trial court’s
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 Commonwealth’s 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 Commonwealth’s 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 § 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.
28
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 § 17.1-313. 9
IV.
CONCLUSION
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 remanded.
9
Title 17.1 superseded former Title 17 effective October 1,
1998 and prior to the argument of this appeal. The current
statute, Code § 17.1-313, provides for review by this Court in
the same manner as the now superseded provisions of Code § 17-
110.1, the statute under which the parties briefed the appeal.
29