Atkins v. Com., Record No. 052348.
| Citation | 631 S.E.2d 93 |
| Decision Date | 08 June 2006 |
| Docket Number | Record No. 052348. |
| Parties | Daryl Renard ATKINS, v. COMMONWEALTH of Virginia. |
| Court | Supreme Court of Virginia |
Mark E. Olive (Joseph A. Migliozzi, Jr., Capital Defender, on briefs), for appellant.
Katherine P. Baldwin, Senior Asst. Atty. Gen. (Robert F. McDonnell, Atty. Gen., Jerry P. Slonaker, Senior Asst. Atty. Gen., on brief), for appellee.
Present: All the Justices.
OPINION BY Justice CYNTHIA D. KINSER.
On prior occasions, we have addressed various issues regarding Daryl Renard Atkins' conviction for capital murder and the imposition of the death penalty. Today, we review a jury verdict finding that Atkins is not mentally retarded and the circuit court's reinstatement of Atkins' death sentence in light of that verdict. Although Atkins raises numerous assignments of error, we conclude that the circuit court erred in two respects: (1) by admitting testimony from one of the Commonwealth's expert witnesses; and (2) by informing the venire that another jury had already sentenced Atkins to death. Thus, we will reverse the circuit court's judgment and remand this case for a new proceeding to determine whether Atkins is mentally retarded.
In February 1998, a jury convicted Atkins of the November 1996 capital murder of Eric Michael Nesbitt during the commission of robbery.1 See Code § 18.2-31(4). During the penalty phase of the bifurcated trial, the jury fixed Atkins' sentence at death. Upon review by this Court pursuant to Code § 17.1-313, we affirmed his conviction for capital murder, but vacated the imposition of the death sentence, and remanded the case to the Circuit Court of York County for a new sentencing hearing. Atkins v. Commonwealth, 257 Va. 160, 180, 510 S.E.2d 445, 457 (1999) (Atkins I).
At the re-sentencing, a different jury again fixed Atkins' punishment at death on the capital murder conviction. The Circuit Court of York County imposed the death penalty in accordance with the jury verdict. In the subsequent review by this Court, we upheld "the imposition of the death penalty." Atkins v. Commonwealth, 260 Va. 375, 379, 534 S.E.2d 312, 314 (2000) (Atkins II).
The United States Supreme Court then granted Atkins a writ of certiorari on the sole issue "[w]hether the execution of mentally retarded individuals convicted of capital crimes violates the Eighth Amendment?" Atkins v. Virginia, 534 U.S. 809, 809, 122 S.Ct. 29, 151 L.Ed.2d 8 (2001). Establishing a categorical rule that execution of mentally retarded individuals is excessive punishment, and therefore violates the Eighth Amendment, the United States Supreme Court reversed our judgment and remanded the case to this Court for further proceedings. Atkins v. Virginia, 536 U.S. 304, 320-21, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (Atkins III).
In response to the United State Supreme Court's ruling in Atkins III, the General Assembly enacted emergency legislation defining the term "[m]entally retarded" and establishing procedures for determining whether a defendant convicted of capital murder is mentally retarded. Code §§ 8.01-654.2, 19.2-264.3:1.1, -264.3:1.2, -264.3:3. Part of that legislation specifically addressed the procedure to be followed in cases when defendants, such as Atkins, had been sentenced to death prior to the decision of the United States Supreme Court in Atkins III and the enactment of the emergency mental retardation legislation. Code § 8.01-654.2. Following the enactment of the legislation, and pursuant to the mandate of the United States Supreme Court in Atkins III, this Court remanded Atkins' case to the Circuit Court of York County for the "`sole purpose of making a determination of mental retardation.'" Atkins v. Commonwealth, 266 Va. 73, 79, 581 S.E.2d 514, 517 (2003) (quoting Code § 8.01-654.2) (Atkins IV).
Upon remand, a third jury found that Atkins did not prove by a preponderance of the evidence that he is mentally retarded under Code § 19.2-264.3:1.1(A).2 Based on that verdict, the Circuit Court of York County reinstated Atkins' death sentence. We awarded Atkins an appeal from the circuit court's judgment pursuant to Rules 5:17 and/or 5:22.
Atkins assigns 38 errors to the judgment of the circuit court. Although he did not brief some of the assignments of error, see Muhammad v. Commonwealth, 269 Va. 451, 478, 619 S.E.2d 16, 31 (2005), cert. denied, ___ U.S. ___, 126 S.Ct. 2035, ___ L.Ed.2d ___ (2006) (), and others are waived for various reasons, we will specifically consider only three assignments of error:
No. 3—the circuit court erred "by informing [the] jurors that, after a prior valid juror determination of sentence was made, the Supreme Court of the United States intervened by ruling that the execution of persons with mental retardation is cruel and unusual punishment, and that their decision regarding mental retardation would determine whether the prior valid juror determination of sentence would actually be imposed;"
No. 13—the circuit court erred "by sustaining the Commonwealth's objection to the qualifications and expert testimony of Dr. Richard Kelley;" and
No. 15—the circuit court erred "by overruling [Atkins'] objection to the expert qualification and subsequent testimony of Dr. Stanton E. Samenow as a Commonwealth witness."
We will first address No. 15, then No. 3, and conclude with No. 13.
A. Dr. Samenow
On the motion of the Commonwealth, pursuant to Code § 19.2-264.3:1.2(F)(1), the circuit court appointed Stanton E. Samenow, Ph.D., a clinical psychologist, to evaluate Atkins "concerning the existence or absence of [Atkins'] mental retardation." The qualifications of an expert appointed at the request of the Commonwealth are governed by subsection A of Code § 19.2-264.3:1.2. That subsection requires that
[t]he mental health expert appointed pursuant to this section shall be (a) a psychiatrist, a clinical psychologist or an individual with a doctorate degree in clinical psychology, (b) skilled in the administration, scoring and interpretation of intelligence tests and measures of adaptive behavior and (c) qualified by experience and specialized training, approved by the Commissioner of Mental Health, Mental Retardation and Substance Abuse Services, to perform forensic evaluations.
At Atkins' mental retardation hearing, the Commonwealth moved to admit Dr. Samenow as an expert in "clinical psychology with a specialty in forensic psychology." On voir dire, Atkins asked Dr. Samenow the following questions regarding his qualifications and the timing of an intellectual functioning test he administered to Atkins:
Q. Can you tell me [Dr. Samenow], do you know what a standardized measure for assessing adaptive behavior is, what that phrase means?
A. Adaptive behavior?
Q. A standardized measure.
A. Yes, it would be giving a test, if such a test were appropriate, to try to assess the person's functioning in life, conceptually, practically, socially.
Q. Could you name a few?
A. The ABS,[3] the test that has been given, I do not give it.
Q. Okay, any others that you know of?
A. No.
Q. And have you ever given it?
A. No, I have not.
Q. You've never used one, you say?
A. I have not used the test of adaptive functioning.
Q. Any test of adaptive functioning?
A. That is correct.
Q. Okay. And you administered in 2004 an IQ test; is that correct?
A. Yes.
Q. What's the name of that test?
A. The Weschler Adult Intelligence Scale.
Q. And you know that two days before you administered it, it had already been administered?
A. Oh, I absolutely do.[4]
Q. Is it accepted professional practice to administer that test two days after someone else has administered it?
A. One knows one's going to get a practice effect and ordinarily one would not.
Q. Let's stay with the question, please. Is it accepted professional practice to administer the WAIS two days after someone else has?
A. Generally not.
After this exchange, Atkins moved to disallow Dr. Samenow's testimony on the grounds that Dr. Samenow had not conducted the evaluation of Atkins in accordance with the provisions of Code § 19.2-264.3:1.1(B)(1) and (2) because he had not assessed Atkins' intellectual functioning in accordance with accepted professional practice and had not administered any standardized measure for assessing adaptive behavior. In response to a question from the Commonwealth during additional voir dire, Dr. Samenow explained why he did not give a standardized measure of adaptive behavior to Atkins,
During further cross-examination, Atkins asked Dr. Samenow how many assessments for mental retardation he had performed during his career. Dr. Samenow responded that Atkins was the "[f]irst and last." Atkins continued with these questions:
Q. So you have no experience whatsoever administering assessments that are standard—I'm sorry, standardized measures generally accepted in the field for adaptive behavior, you've never done one?
A. No, I'm constantly assessing adaptive behavior, but I have not given these tests of adaptive behavior.
. . . .
Q. All right. So having never administered one of these tests, you have no clinical experience or judgment with respect to when, where or how it ought to be administered?
The circuit court then asked Dr. Samenow whether he "really [felt] comfortable" rendering an opinion regarding Atkins' mental retardation. Dr. Samenow answered, "[A]bsolutely I do, because I have spent a career assessing the functioning of individuals."
After the voir dire of Dr. Samenow concluded, Atkins...
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