Present: All the Justices 

DANIEL LEE ZIRKLE 

OPINION BY JUSTICE LEROY R. HASSELL, SR. 

v. Record Nos. 010227 & 010228 November 2, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY 

Porter R. Graves, Jr., Judge 

 As required by Code § 17.1-313, we review the sentence of 

death imposed upon Daniel Lee Zirkle. 

I. 

 A grand jury in Rockingham County issued three 

indictments against Daniel Lee Zirkle charging him with the 

following offenses: the capital murder of Jessica Shifflett 

"as part of the same act or transaction in which he 

unlawfully, feloniously, willfully, deliberately and with 

premeditation killed Christina Zirkle" in violation of Code 

§ 18.2-31(7)*; the capital murder of Jessica Shifflett "within 

the three year period in which he unlawfully, feloniously, 

willfully and deliberately with premeditation killed Christina 

Zirkle" in violation of Code § 18.2-31(8); and breaking and 

entering in the daytime of a dwelling house with the intent to 

commit murder while armed with a deadly weapon in violation of 

Code § 18.2-90. 

 *

 Zirkle was convicted of the capital murder of Christina 

Zirkle and sentenced to death. See Zirkle v. Commonwealth, 

262 Va. 320, 551 S.E.2d 601 (2001). 
 On August 16, 2000, Zirkle's counsel informed the circuit 

court that Zirkle desired to enter pleas of guilty to the 

indictments and to request that the court impose upon him a 

sentence of death. Zirkle's counsel told the circuit court 

that they had discussed the pleas with Zirkle "in great 

length" and that they disagreed with him, but that he desired 

to enter the guilty pleas over their objections. Zirkle 

further advised his counsel that he would not permit them to 

participate in the penalty phase of the proceedings by 

presenting mitigating evidence. 

 The circuit court examined Zirkle extensively regarding 

counsel's representations to the court, which Zirkle 

confirmed. Zirkle was arraigned, and he entered pleas of 

guilty to the indictments. The circuit court considered a 

proffer of the evidence that the Commonwealth would have 

adduced during the guilt phase of the trial of the capital 

murder charges and the non-capital charge. Zirkle agreed with 

the Commonwealth's proffer. 

 The circuit court conducted an inquiry incident to the 

tendered pleas and concluded that Zirkle was mentally 

competent and fully capable of understanding the proceedings. 

The court also found that Zirkle fully understood the nature 

and effect of his guilty pleas and the possible penalties that 

could be imposed upon him. The circuit court found that 

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Zirkle's pleas were made freely, intelligently, and 

voluntarily. The circuit court accepted Zirkle's pleas and 

found him guilty of capital murder as charged in the 

indictments and guilty of breaking and entering with the 

intent to commit murder while armed with a deadly weapon. 

Zirkle received a life sentence for his conviction of breaking 

and entering with the intent to commit murder while armed with 

a deadly weapon, and even though he filed a notice of appeal 

from that conviction, he does not challenge that conviction or 

sentence on appeal. 

 Pursuant to Code § 19.2-264.4, the circuit court 

proceeded with the penalty phase of the capital murder trial. 

Zirkle instructed his counsel not to present mitigation 

evidence. The court directed Zirkle's counsel to prepare to 

present mitigation evidence in the penalty phase of the 

proceeding in the event that Zirkle subsequently changed his 

mind. Zirkle again instructed his counsel to refrain from 

presenting evidence in the penalty phase of the proceeding. 

The circuit court, on numerous occasions, asked Zirkle whether 

he desired to present evidence during the penalty phase of the 

proceeding, and on each occasion, Zirkle responded in the 

negative. 

 The Commonwealth presented its evidence. After 

considering the evidence and a report prepared by the 

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probation officer pursuant to Code § 19.2-299, the circuit 

court found that the Commonwealth had proven beyond a 

reasonable doubt that there is a probability based upon the 

evidence of prior history of the defendant and the 

circumstances surrounding the offense that Zirkle would commit 

criminal acts of violence that would constitute a continuing 

serious threat to society, and that his conduct in committing 

the offense was outrageously and wantonly vile, horrible and 

inhuman, in that it involved torture, depravity of mind or 

aggravated battery to the victim, Jessica Shifflett. The 

circuit court entered a final judgment fixing Zirkle's 

punishment at death. 

 Zirkle apparently directed his counsel not to appeal the 

judgment of the circuit court. His counsel filed "a motion 

for direction and guidance" in the clerk's office of this 

Court. We entered an order that required the circuit court to 

conduct an evidentiary hearing to determine whether Zirkle's 

decision not to pursue an appeal was voluntary and 

intelligent. We also directed the circuit court to obtain 

Zirkle's written waiver under oath and file it with the 

transcribed record of the hearing in the event the court 

determined that Zirkle's decision was voluntary and 

intelligent. After conducting a hearing, the circuit court 

concluded that Zirkle's "directions to his [c]ounsel not to 

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participate in the appeal process and his decision not to 

participate in the appeal process were intelligently, 

voluntarily, and knowingly made and that [Zirkle] is mentally 

competent to make the decision to waive his appeal rights." 

The circuit court obtained an executed written waiver of 

Zirkle's right of appeal, signed by Zirkle in open court and 

under oath. 

 Even though Zirkle waived his right of appeal and 

directed his counsel not to participate in any appeals on his 

behalf, this Court must review the imposition of the sentence 

of death. We ordered that Zirkle's counsel file a brief and 

present oral argument to this Court upon the matters contained 

in Code § 17.1-313, which states in relevant part: 

 "A. A sentence of death, upon the judgment 

thereon becoming final in the circuit court, shall 

be reviewed on the record by the Supreme Court. 

. . . . 

 "C. [T]he Court shall consider and determine: 

 "1. Whether the sentence of death was 

imposed under the influence of passion, 

prejudice or any other arbitrary factor; and 

 "2. Whether the sentence of death is 

excessive or disproportionate to the penalty 

imposed in similar cases, considering both the 

crime and the defendant." 

Thus, we review Zirkle's sentence of death to determine 

whether it was imposed under the influence of any arbitrary 

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factor and whether his sentence of death is excessive or 

disproportionate. 

II. 

A. 

The Proffered Evidence 

 Zirkle and Barbara J. Shifflett, who were not married, 

shared a residence together. In April 1999, the Juvenile and 

Domestic Relations District Court of Harrisonburg and 

Rockingham Counties issued a protective order that directed 

Zirkle to stay away from the residence he had shared with 

Barbara Shifflett. Zirkle was convicted of violating that 

order in May 1999 and was incarcerated. 

 On August 2, 1999, Barbara Shifflett left her home and 

went to her place of employment. Her daughters, Jessica 

Shifflett and Christina Zirkle, remained at the home. 

Christina Zirkle was the natural child of the defendant. 

Barbara Shifflett had instructed Jessica, who was 14 years 

old, to take care of Christina, who was four years old. 

Barbara Shifflett called her home several times that day to 

"check on" the children. 

 In the afternoon of August 2, 1999, Zirkle, who had been 

released from incarceration, placed a telephone call to 

Barbara Shifflett and stated, "[l]ive in hell, bitch," and he 

hung up the telephone. Barbara Shifflett became concerned, 

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and she went to a magistrate who issued an arrest warrant 

against Zirkle for violation of the protective order. 

Subsequently, Barbara Shifflett received a telephone call from 

the defendant's mother, JoAnn Zirkle, who informed Shifflett 

that the defendant had taken Christina from Barbara 

Shifflett's home. 

 Barbara Shifflett immediately left her place of 

employment and began to drive her automobile to her home. 

JoAnn Zirkle placed a "911 call" to emergency response 

personnel because she was concerned that the defendant had 

taken Christina Zirkle to an area in Page County called Story 

Book Trail. 

 When Barbara Shifflett arrived at her home, she entered 

the residence and began "crying out" for her daughters. She 

ran though the home screaming for her daughters, but she was 

unable to find them. Eventually, she found Jessica lying on 

the floor in a bedroom. Barbara Shifflett was unable to 

discern whether Jessica was "alive or dead." She observed 

what she thought was red paint on Jessica's arm, but she later 

learned that the liquid was actually Jessica's blood. Barbara 

Shifflett attempted to revive Jessica, but she was unable to 

do so. Barbara Shifflett ran out of her residence "yelling 

for help." 

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 Officers from the Rockingham County Sheriff's Office 

arrived at Barbara Shifflett's residence to inform her that 

her other child, Christina, had been killed. Barbara 

Shifflett asked the officers to help Jessica, who had been 

stabbed in the throat. The officers tried but were unable to 

revive Jessica. 

 Christina's body had been found by a Page County sheriff 

investigator who had been dispatched to the Story Book Trail. 

Christina had sustained a large neck wound, and her body was 

lying on Zirkle's chest. A knife was lying near Zirkle's 

extended arm. The investigator kicked the knife away from 

Zirkle's hand because the officer was concerned with his 

safety. 

 Zirkle was subsequently transported to a hospital where 

he told a psychiatric medical resident that he killed 

Christina and Jessica. Zirkle also admitted "his role" in the 

murders to two detectives who interviewed him. 

B. 

Evidence Adduced During the Penalty Phase 

 The Commonwealth adduced the following evidence during 

the penalty phase of the proceedings. Barbara Shifflett 

testified that Zirkle had abused her physically and mentally. 

For example, in December 1998, Zirkle shoved her against a 

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refrigerator. In January 1999, Zirkle pushed her against a 

cabinet, and she fell and cut her elbow. 

 In the spring of 1999, Zirkle became angry because 

Christina and Jessica had spent the night with their cousins. 

Zirkle became enraged and pushed Barbara Shifflett "into [a] 

sofa." When Shifflett tried to place a telephone call for 

help, Zirkle pushed her against a fish tank. During that 

incident, Shifflett was able to place a telephone call to 

police officers who responded to the residence. She left the 

residence to spend the night with her sister, Peggy Shifflett. 

Zirkle repeatedly placed telephone calls to Peggy Shifflett's 

house, and he told Barbara Shifflett that he "wanted [her] and 

the girls home, f'n girls home." When Barbara Shifflett 

responded that she did not intend to return to the home, 

Zirkle stated, "you want a war . . . you'll have a war you f'n 

bitch, you'll pay." Even though a protective order had been 

entered prohibiting Zirkle from entering the residence he 

shared with Barbara Shifflett, when she returned to her home 

the following day, the defendant had entered the home, hidden 

in the shower, and attacked her. 

 Subsequently, Barbara Shifflett told the defendant during 

a telephone conversation that they should terminate their 

relationship. Zirkle responded that she would "pay for 

breaking up his family." 

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 Lieutenant Daniel Comer, who is employed by the 

Rockingham County Sheriff's Department, testified that Zirkle 

admitted he had called Barbara Shifflett between the time he 

killed Jessica and the time he killed Christina and told 

Barbara Shifflett, "[l]ive in hell, bitch, live in hell." 

 Ricky L. Dean was in jail with Zirkle before Zirkle 

killed Jessica and Christina in August 1999. Zirkle had a 

conversation with Dean. Zirkle told Dean that when Zirkle 

"got out he was going to kill all three of them, if he 

couldn't have them nobody else would." 

 Frances Patricia Field, a forensic pathologist, performed 

an autopsy on the body of Christina Zirkle. She testified 

that when she examined Christina's body, she noticed bruised 

areas on the back of Christina's head, at the base of her 

neck, and on her back. The bruising on the back would have 

been caused by blunt force injuries. Christina sustained an 

injury to her left shoulder which was consistent with a 

struggle. 

 Christina's body had a large wound on the front of the 

neck and chest. According to Dr. Field, the wound was "both a 

combined stab wound and incised wound. Also there's some 

irregularity of the edges of the wound which indicate some 

turning of the sharp instrument which caused the wound." Dr. 

Field also testified that the wound contained jagged areas 

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which could be consistent with either "the turning of [a] 

blade" or with movement by the child. She stated: "The wound 

cut across a large surface of skin and soft tissue at the 

front of the neck and the stab wound went into the body to a 

depth of about two and three-quarter inches going between two 

vertebrae or backbones in the neck region and cut the spinal 

cord in half which is a fatal wound." Dr. Field concluded 

that this injury was caused by a knife. Dr. Field testified 

that "[s]evering the spinal cord can produce a relatively fast 

death although this is lower on the cord than one that would 

be immediately fatal. But the severance of the cord at that 

level plus the bleeding from the wound would result in a death 

in a matter of a few minutes." 

 Dr. William Massello, an assistant chief pathologist for 

Western Virginia, performed an autopsy on the body of Jessica 

Shifflett. Jessica suffered a pattern of injuries to her neck 

area which were caused before her death. She had five stab 

wounds to her neck. Dr. Massello stated: "[T]wo stab wounds 

actually went into the muscles and very deeply into the neck 

going right across the neck from right to left and they 

injured a major artery, a major vein on the left side and a 

major vein on the right side. And the result was bleeding, 

very substantial external bleeding from these wounds and 

subsequent rapid death. [One] wound . . . did not go in as 

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deeply. This [wound] went more directly into the neck only to 

a depth of about a half an inch and did not strike any vital 

structures and was not lethal per se . . . [T]he thyroid gland 

which is a gland that regulates your metabolism was injured 

and there was bleeding from there but was not to any degree as 

injurious or as rapidly lethal as the two wounds to the left 

side of the neck which cut the major arteries and veins in 

there." Jessica also suffered bruises to her skull and had 

defensive wounds on her fingers and hands. 

 Ronald J. Jackson, an inmate who was incarcerated with 

Zirkle after he had been arrested for the murders of Jessica 

and Christina, gave the following testimony. "An officer 

. . . let Mr. Zirkle know that he was going to be a patron of 

the car wash that was going to provide monies for the 

headstones of the two victims. Mr. Zirkle, when the officer 

had acknowledged that he was going to be a patron, Mr. Zirkle 

said, 'Is Barbara going to be there? Tell that bitch I said 

checkmate,' and [he] ran his finger across his throat, or his 

thumb across his throat." Zirkle also told Jackson in a later 

conversation: "Well, I wish I could have killed Ms. Shifflett 

. . . It would have been all worth it." 

 In 1988, Zirkle was convicted of armed robbery. Nancy 

Berry, the victim of the robbery, testified that Zirkle 

entered a store where she was employed as a cashier. He 

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displayed a butcher knife, Berry gave him money from a cash 

register, and Zirkle left the store. In 1999, Zirkle pled 

guilty to possession of marijuana and was convicted of that 

offense. The Commonwealth presented evidence that Zirkle had 

also threatened and abused members of Barbara Shifflett's 

family. 

III. Passion, Prejudice, and Proportionality 

A. 

 Counsel for Zirkle state that "every death case contains 

an element of passion," but they "cannot point to any evidence 

in the record that would indicate that the [c]ourt was 

influenced by passion, prejudice or any other arbitrary 

factor. Counsel . . . ask[] the [c]ourt to review the 

proceedings contained in the Appendix and especially the 

presentence report in considering this issue." 

 We have reviewed the record, and we find no evidence that 

Zirkle's sentence of death was imposed under the influence of 

passion, prejudice, or any other arbitrary factor. We also 

observe that the circuit court repeatedly informed Zirkle that 

he was entitled to present evidence in mitigation, but Zirkle 

refused to permit his attorneys to present such evidence. 

B. 

 The test of proportionality that we apply is whether 

"juries in this jurisdiction generally approve the supreme 

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penalty for comparable or similar crimes." Smith v. 

Commonwealth, 239 Va. 243, 271, 389 S.E.2d 871, 886 (quoting 

Stamper v. Commonwealth, 220 Va. 260, 284, 257 S.E.2d 808, 824 

(1979), cert. denied, 445 U.S. 972 (1980)), cert. denied, 498 

U.S. 881 (1990). 

 Zirkle's counsel state that since they were prevented 

"from presenting any evidence in mitigation, [they] cannot 

point to any evidence in the record that would indicate that 

the sentence of death is excessive or disproportionate to the 

penalty imposed in similar cases, considering both the crime 

and the defendant. Counsel for Mr. Zirkle ask[] the Court to 

carefully consider the previous cases reviewed by this Court 

in determining whether the sentence imposed is excessive or 

disproportionate to the penalty imposed in similar cases, 

considering both the crime and the defendant." 

 We have examined the records in all capital murder cases 

reviewed by this Court since the adoption of Code § 17.1-313 

and its predecessor, Code § 17-110.1. Applying the test of 

proportionality, we hold that the sentence of death imposed 

upon Zirkle is neither excessive nor disproportionate to the 

penalties imposed in similar cases, considering both the crime 

and the defendant. See Zirkle v. Commonwealth, 262 Va. 320, 

551 S.E.2d 601 (2001); Walker v. Commonwealth, 258 Va. 54, 515 

S.E.2d 565 (1999), cert. denied, 528 U.S. 1125 (2000); 

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Bramblett v. Commonwealth, 257 Va. 263, 513 S.E.2d 400, cert.

denied, 528 U.S. 952 (1999); Beck v. Commonwealth, 253 Va. 

373, 484 S.E.2d 898, cert. denied, 522 U.S. 1018 (1997); 

Clagett v. Commonwealth, 252 Va. 79, 472 S.E.2d 263 (1996), 

cert. denied, 519 U.S. 1122 (1997); Goins v. Commonwealth, 251 

Va. 442, 470 S.E.2d 114, cert. denied, 519 U.S. 887 (1996); 

Stewart v. Commonwealth, 245 Va. 222, 427 S.E.2d 394, cert.

denied, 510 U.S. 848 (1993); George v. Commonwealth, 242 Va. 

264, 411 S.E.2d 12 (1991), cert. denied, 503 U.S. 973 (1992). 

IV. 

 Having reviewed the sentence of death pursuant to Code 

§ 17.1-313, we decline to commute the sentence to imprisonment 

for life. Accordingly, we will affirm the judgment of the 

circuit court. 

Affirmed. 

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