534 S.E.2d 312 (Va. 2000), 000395, Atkins v. Commonwealth

Docket Nº:Record No. 000395.
Citation:534 S.E.2d 312, 260 Va. 375
Opinion Judge:[6] The opinion of the court was delivered by: Justice Cynthia D. Kinser
Party Name:Daryl Renard ATKINS v. COMMONWEALTH of Virginia.
Case Date:September 15, 2000
Court:Supreme Court of Virginia

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534 S.E.2d 312 (Va. 2000)

260 Va. 375

Daryl Renard ATKINS



Record No. 000395.

Supreme Court of Virginia

September 15, 2000

Page 313

[Copyrighted Material Omitted]

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[260 Va. 378] 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.

KINSER, Justice.

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 456-57. 1 At resentencing, a different jury found that there is a probability that Atkins would commit acts of violence in the future [260 Va. 379] 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. 2


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. 3 See [260 Va. 380] Stockton v. Commonwealth, 241 Va. 192, 210-11, 402 S.E.2d 196, 206-07, cert. denied, 502 U.S. 902, 112 S.Ct. 280, 116 L.Ed.2d 231 (1991) (defendant not allowed to introduce evidence and argue "residual doubt" at new

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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, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988) (defendant is not entitled to jury instruction on "residual doubt"). We find no reason to depart from our precedent. 4

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 hearing.

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

[260 Va. 381] 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. Commonwealth, 257 Va. 292, 309, 513 S.E.2d 642, 653, cert. denied, 528 U.S. 873, 120 S.Ct. 177, 145 L.Ed.2d 149 (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. Commonwealth, 220 Va. 243, 253, 257 S.E.2d 797, 804 (1979), cert. denied, 444 U.S. 1103, 100 S.Ct. 1069, 62 L.Ed.2d 788 (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, 109 S.Ct. 186, 102 L.Ed.2d 154 (1988) (holding that hearsay evidence contained in postsentence report is admissible based on language of Code §§ 19.2-264.5 and -299).

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,

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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 [260 Va. 382] 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, 112 S.Ct. 1591, 118 L.Ed.2d 308 (1992); Eaton v. Commonwealth, 240 Va. 236, 257, 397 S.E.2d 385, 398 (1990), cert. denied, 502 U.S. 824, 112 S.Ct. 88, 116 L.Ed.2d 60 (1991); Gray v. Commonwealth, 233 Va. 313, 351, 356 S.E.2d 157, 178, cert. denied, 484 U.S. 873, 108 S.Ct. 207, 98 L.Ed.2d 158 (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, 115 S.Ct. 1134, 130 L.Ed.2d 1095 (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, 106 S.Ct. 1712, 90 L.Ed.2d 69 (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...

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