In re Com.

Decision Date04 June 2009
Docket NumberRecord No. 080283.,Record No. 080282.
PartiesIn re COMMONWEALTH of Virginia.
CourtVirginia Supreme Court

Melissa H. Hoy, Assistant Commonwealth's Attorney (Mark A. Krueger, Deputy Commonwealth's Attorney, on brief), for the petitioner.

John A. Gibney, Jr., (Thompson McMullan, on brief), Richmond, for the respondent.

Present: All the Justices.


In this proceeding, which invokes this Court's original jurisdiction, we consider whether a writ of mandamus or a writ of prohibition lies to compel a circuit court, that had entered a final judgment in a capital murder proceeding, to vacate that judgment and conduct a hearing to determine whether a criminal defendant was mentally retarded when he robbed and murdered the victim.


The underlying capital murder litigation that is the subject of this proceeding has a very long history that we will briefly summarize. In 1998, Daryl Renard Atkins was convicted in a jury trial of the capital murder of Eric Michael Nesbitt. Atkins was sentenced to death. This Court affirmed Atkins' conviction for capital murder but vacated the sentence of death because error occurred during the penalty proceeding of the capital murder trial. Atkins v. Commonwealth, 257 Va. 160, 180, 510 S.E.2d 445, 457 (1999).

Upon remand, at the conclusion of a new penalty proceeding, a different jury fixed Atkins' punishment at death. The circuit court imposed the death penalty in accordance with the jury verdict and this Court affirmed the conviction. Atkins v. Commonwealth, 260 Va. 375, 390, 534 S.E.2d 312, 321 (2000) (Hassell & Koontz, JJ., dissenting).

The Supreme Court held in Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) that the Eighth Amendment to the United States Constitution prohibits the execution of persons who are mentally retarded. The Supreme Court vacated Atkins' judgment of death and this Court remanded the case to the circuit court and directed that the circuit court conduct a jury trial on Atkins' claim that he is mentally retarded and, therefore, not subject to the death penalty.

Upon remand, a jury found that Atkins is not mentally retarded and the circuit court reinstated Atkins' sentence of death. On appeal, however, this Court reversed that judgment because error occurred during the proceeding to determine whether Atkins was mentally retarded. Atkins v. Commonwealth, 272 Va. 144, 161, 631 S.E.2d 93, 102 (2006).

This Court reversed and annulled the final judgment and remanded the case to the circuit court for a new proceeding to determine whether Atkins is mentally retarded. During this remand, Atkins filed a motion in the circuit court requesting the imposition of a life sentence pursuant to Code § 19.2-264.5 or a new trial. Atkins asserted that the Commonwealth's Attorney withheld exculpatory evidence and suborned perjury during Atkins' 1998 capital murder trial. Atkins also asserted that the Commonwealth's Attorney, who allegedly withheld evidence and suborned perjury, should be disqualified from representing the Commonwealth during the proceeding to determine whether Atkins is mentally retarded. The Commonwealth opposed Atkins' motions and argued that the circuit court lacked jurisdiction to alter the sentence of death without a finding by a jury that Atkins is mentally retarded. The circuit court entered orders staying the proceeding and Atkins sought an interlocutory appeal to this Court and a writ of mandamus. This Court denied the interlocutory appeal, dismissed the writ of mandamus, and the proceedings resumed in the circuit court.

The circuit court conducted an evidentiary hearing on Atkins' motions to disqualify the Commonwealth's Attorney and to vacate the sentence of death. The motions claimed exculpatory evidence violations occurred under the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). During the hearing, Atkins produced the following evidence. A critical issue in Atkins' original capital murder trial was whether Atkins or his accomplice, William Jones, murdered the victim, because only the triggerman may receive the death penalty under the facts and circumstances of this case. On August 6, 1997, the Commonwealth's Attorney and certain law enforcement personnel met with Jones and his attorney to prepare Jones for Atkins' capital murder trial. This session was recorded with an audiotape recorder. At some point during the three-hour trial preparation session, the Commonwealth's Attorney turned the audiotape recorder off for sixteen minutes because the Commonwealth's Attorney thought Jones' testimony was not "`going to do [the Commonwealth's case] any good.'"

During the sixteen-minute interval that was not recorded, the Commonwealth's Attorney, law enforcement officers, and Jones "acted out" the events related to the murder of Nesbitt. Jones' initial version of the facts changed after the rehearsed and coached unrecorded reenactment of the murder.

The circuit court found that the Commonwealth's Attorney had "coached" Jones after the Commonwealth's Attorney realized that Jones' initial version of the facts regarding the capital murder would be "problematic" to the Commonwealth. The circuit court found that Jones "changed his story. He modified his story."

The circuit court stated in its final judgment order that:

"[T]he Office of the Commonwealth Attorney for York County and the City of Poquoson improperly suppressed exculpatory evidence from the August 6, 1997 interview of William Jones, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that the suppressed information probably would have affected the outcome of Daryl Atkins' trial had it been revealed to Atkins' counsel in 1998."

At the conclusion of the two-day evidentiary hearing, the circuit court set aside Atkins' sentence of death and imposed a sentence of life imprisonment without the possibility of parole "based on the newly discovered evidence of a Brady violation."2



The Commonwealth asserts that mandamus is an appropriate remedy that the Commonwealth may utilize to compel Judge Shaw to vacate the circuit court's judgment, dated January 24, 2008, that set aside Atkins' sentence of death and sentenced him to life in the penitentiary without the possibility of parole. We disagree with the Commonwealth.

The writ of mandamus is an extraordinary remedy and for that reason this Court has carefully scrutinized and imposed limitations upon the use of this writ. This Court has consistently stated the following pertinent principles:

"A writ of mandamus is an extraordinary remedial process, which is not awarded as a matter of right but in the exercise of a sound judicial discretion. Due to the drastic character of the writ, the law has placed safeguards around it. Consideration should be had for the urgency which prompts an exercise of the discretion, the interests of the public and third persons, the results which would follow upon a refusal of the writ, as well as the promotion of substantial justice. In doubtful cases the writ will be denied, but [when] the right involved and the duty sought to be enforced are clear and certain and [when] there is no other available specific and adequate remedy the writ will issue."

Gannon v. State Corp. Commission, 243 Va. 480, 482, 416 S.E.2d 446, 447 (1992) (quoting Richmond-Greyhound Lines v. Davis, 200 Va. 147, 151-52, 104 S.E.2d 813, 816 (1958)); accord Umstattd v. Centex Homes, 274 Va. 541, 545-46, 650 S.E.2d 527, 530 (2007); Hertz v. Times-World Corporation, 259 Va. 599, 607-08, 528 S.E.2d 458, 462-63 (2000); Williams v. Matthews, 248 Va. 277, 281, 448 S.E.2d 625, 627 (1994); Railroad Company v. Fugate, 206 Va. 159, 162, 142 S.E.2d 546, 548-49 (1965). We stated, over 130 years ago, that:

"In relation to courts and judicial officers, [mandamus] cannot be made to perform the functions of a writ of error or appeal, or other legal proceeding to review or correct errors, or to anticipate and forestall judicial action. It may be appropriately used and is often used to compel courts to act [when] they refuse to act and ought to act, but not to direct and control the judicial discretion to be exercised in the performance of the act to be done; to compel courts to hear and decide where they have jurisdiction, but not to pre-determine the decision to be made; to require them to proceed to judgment, but not to fix and prescribe the judgment to be rendered."

Page v. Clopton, 71 Va. (30 Gratt.) 415, 418 (1878).

This Court also stated, over a century ago, that: "It is also well settled that mandamus does not lie to compel an officer to undo what he has done in the exercise of his judgment and discretion, and to do what he had already determined ought not to be done." Thurston v. Hudgins, 93 Va. 780, 784, 20 S.E. 966, 968 (1895). We acknowledged this important precept in Board of Supervisors v. Combs, 160 Va. 487, 498, 169 S.E. 589, 593 (1933) and observed:

"Mandamus is prospective merely. . . . It is not a preventive remedy; its purpose and object is to command performance, not desistance, and is a compulsory as distinguished from a revisory writ; it lies to compel, not to revise or correct action, however erroneous it may have been, and is not like a writ of error or appeal, a remedy for erroneous decisions."

160 Va. at 498, 169 S.E. at 593; see also Harrison v. Barksdale, 127 Va. 180, 188-89, 102 S.E. 789, 792 (1920). We restated this elemental precept in Richlands Medical Ass'n v. Commonwealth, 230 Va. 384, 387, 337 S.E.2d 737, 740 (1985): "[M]andamus is applied prospectively only; it will not be granted to undo an act already done." We recently repeated this principle when we stated in In re: Commonwealth's Attorney, 265 Va. 313, 319 n. 4, 576 S.E.2d 458, 462 n. 4 (2003) that "mandamus will [not] lie to...

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