510 S.E.2d 445 (Va. 1999), 981477, Atkins v. Commonwealth

Docket Nº:981477, 981478.
Citation:510 S.E.2d 445, 257 Va. 160
Opinion Judge:[7] The opinion of the court was delivered by: Justice Lawrence L. Koontz, Jr.
Party Name:Daryl Renard ATKINS v. COMMONWEALTH of Virginia.
Case Date:January 08, 1999
Court:Supreme Court of Virginia

Page 445

510 S.E.2d 445 (Va. 1999)

257 Va. 160

Daryl Renard ATKINS



Nos. 981477, 981478.

Supreme Court of Virginia.

January 8, 1999.

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[Copyrighted Material Omitted]

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[257 Va. 163] Bryan L. Saunders, Newport News; George M. Rogers, III, Washington, DC, for appellant.

Pamela A. Rumpz, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: All the Justices.

KOONTZ, Justice.

In this appeal, we review the capital murder conviction and death sentence imposed by a jury on Daryl Renard Atkins.



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

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Atkins filed a pre-trial motion to have the Virginia capital murder and death penalty statutes declared unconstitutional. Along with this motion, Atkins filed an extensive brief containing multiple theories for his assertion that the substantive criminal law and procedural statutes governing capital crimes in Virginia are constitutionally deficient. The trial court, relying on conclusive statements of this Court supporting the constitutionality of these statutes, overruled this motion. The trial court also denied Atkins' motion for additional peremptory juror challenges.

In a motion in limine, Atkins sought to limit the introduction by the Commonwealth of DNA evidence related to blood samples found [257 Va. 164] 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 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, 106 S.Ct. 1712, 90 L.Ed.2d 69 (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, 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 [257 Va. 165] 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.

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  1. 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, 117 S.Ct. 972, 136 L.Ed.2d 856 (1997). On 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.

    [257 Va. 166] While Jones waited, Atkins approached several people to ask for money and collected some from one or two. Nesbitt, who was a stranger to Atkins, arrived at the store in his truck at approximately 11:30 p.m. After a brief conversation with Atkins, Nesbitt went into the store. When Nesbitt returned to his truck and was preparing to leave the parking lot, Atkins "whistled" at him and Nesbitt stopped his truck.

    Atkins went to the 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.

    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

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    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 [257 Va. 167] 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. 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...

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