PRESENT: Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and Agee, 

JJ., and Stephenson, S.J. 

SHERMAINE A. JOHNSON 

v. Record No. 031306 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 January 16, 2004 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG 

James E. Kulp, Judge Designate 

 In this appeal of a judgment confirming a death sentence 

imposed in a resentencing proceeding in a capital murder case, 

we consider a range of issues including the question whether the 

trial court erred in refusing to impose a life sentence pursuant 

to Atkins v. Virginia, 536 U.S. 304 (2002) (Atkins III). We 

also consider the constitutionality of Code § 19.2-264.3, which 

provides that a resentencing proceeding on remand be held before 

a different jury than the jury that originally tried the 

defendant. 

I. PROCEEDINGS 

 In July 1998, the defendant, Shermaine A. Johnson, was 

convicted in a jury trial of the capital murder of Hope D. Hall 

in the commission of rape, in violation of Code § 18.2-31(5), 

and of rape, in violation of Code § 18.2-61. The circuit court 

sentenced Johnson in accordance with the jury verdict to death 

for capital murder and to life imprisonment for rape. We 

affirmed the circuit court's judgment in Johnson v. 
Commonwealth, 259 Va. 654, 684, 529 S.E.2d 769, 786-87, cert. 

denied, 531 U.S. 981 (2000). 

 After exhausting his remedies on direct appeal, Johnson 

filed a petition for a writ of habeas corpus. Johnson alleged, 

among other things, that he was denied effective assistance of 

counsel during the penalty phase of his capital murder trial 

because his trial counsel failed to request an instruction 

informing the jury that Johnson would be ineligible for parole 

if sentenced to life imprisonment for capital murder. 

 Based on the holding in Simmons v. South Carolina, 512 U.S. 

154, 156 (1994), that a defendant whose future dangerousness is 

at issue is entitled to have the jury informed of his parole 

ineligibility during the penalty phase of his trial, we awarded 

Johnson a writ of habeas corpus and vacated his death sentence 

on the capital murder conviction. We remanded the case to the 

circuit court for a new sentencing proceeding on that 

conviction. 

 At the resentencing hearing, a different jury fixed 

Johnson's punishment for capital murder at death based on 

findings of both "future dangerousness" and "vileness." The 

circuit court sentenced Johnson to death on the capital murder 

charge in accordance with the jury verdict. Johnson appeals. 

II. THE EVIDENCE 

2
 In Johnson's original appeal to this Court, we stated in 

detail the facts relating to his convictions on the capital 

murder and rape charges. Johnson, 259 Va. at 662-66, 529 S.E.2d 

at 773-76. We will recite those facts from our previous opinion 

that are relevant to the present proceedings: 

On July 11, 1994, the nude body of 22-year-old Hope 

Denise Hall was found on the bedroom floor of her 

apartment in Petersburg. She had been stabbed 15 

times, including fatal stab wounds to her back, chest, 

and neck. 

 Hall's body had abrasions on the nose and left 

cheek. The body also had a broken, ragged fingernail 

that Dr. Deborah Kay, an assistant chief medical 

examiner for the Commonwealth, testified was a 

"defense-type" injury. Dr. Kay also testified that 

death "is not generally immediate" with wounds such as 

those suffered by Hall, and that she initially would 

have remained conscious after the wounds were 

inflicted. 

 The police found blood on two "steak" knives, 

which were lying on a counter in Hall's kitchen. 

Blood was also found on a piece of a broken drinking 

glass located on the kitchen counter, and there was 

additional blood on the kitchen counter and floor. 

The police recovered from the kitchen floor an 

earring, five strands of hair, and a partial shoe 

print containing some blood. The matching earring was 

found in Hall's bedroom. 

 The outside door to Hall's apartment was locked, 

and the police found a partial fingerprint and smears 

of blood on the inside panel of that door, which was 

located near the kitchen. The police recovered two 

additional "steak" knives, one on Hall's bed and one 

in her bathroom. The telephone wires in her bedroom 

had been pulled out of the wall. 

 A smear of blood and blood splatters were located 

on the bedroom wall near the victim's body. The 

police found additional blood on the bedroom floor, 

3
dresser, sheets, and bedspread. There was no sign of 

forced entry into the apartment. 

DNA Evidence 

 Jean M. Hamilton, a forensic scientist employed 

by the Virginia Division of Forensic Science, 

testified that she performed DNA testing using the 

"polymerase chain reaction," or PCR, technique on 

evidence recovered from the crime scene and a blood 

sample and vaginal swabs collected from Hall's body 

during an autopsy. Hamilton concluded that the DNA 

from the blood found on the knife on the bed, the 

knives in the kitchen, the kitchen countertop, and the 

front door all matched the DNA from Hall's blood 

sample. 

 Hamilton determined that the DNA from Hall's 

blood did not match the DNA from the blood on the 

handle of the knife found in the bathroom. However, 

the blood from the broken glass in the kitchen and one 

bloodstain on the bedspread contained a mixture of 

Hall's DNA and DNA from the same person whose blood 

was on the handle of the knife found in the bathroom. 

 Hamilton testified that DNA from sperm detected 

in two semen stains on the sheets and DNA from another 

stain on the bedspread came from the same person as 

the DNA from the blood on the bathroom knife. 

However, the DNA from the sperm detected in the 

vaginal swab taken from Hall's body came from more 

than one person. 

. . . . 

 Hamilton then performed a more discriminating 

type of DNA analysis, known as "restriction fragment 

length polymorphism" or RFLP testing, on the DNA from 

two semen stains found on the sheet and the bedspread. 

After obtaining the DNA profile from those two stains, 

Hamilton searched the DNA data bank maintained by the 

Division of Forensic Science to determine if the DNA 

profile obtained from the crime scene evidence matched 

any DNA profile on record in the DNA data bank. 

Hamilton did not find a matching DNA profile at the 

time of her initial search in March 1996, at which 

4
time there were about 5,000 samples in the DNA data 

bank. 

 In August 1996, Hamilton performed a second 

search of the DNA data bank after about 2,500 more 

samples had been added to the bank. Hamilton's second 

search revealed that one DNA profile contained in the 

data bank was consistent with the DNA profile that she 

had obtained from the crime scene evidence. This 

matching DNA profile belonged to the defendant, 

Shermaine A. Johnson, who was incarcerated in the 

Southampton Correctional Institute. 

. . . . 

Other Crimes Evidence 

 Prior to trial, the Commonwealth gave Johnson 

notice that it intended to present evidence during the 

guilt phase of the trial that Johnson had raped 21-

year-old Lavonda Scott on July 2, 1994, and 15-yearold Janel Chambliss on August 31, 1994. Over 

Johnson's objection, the trial court permitted both 

Scott and Chambliss to testify about these crimes, 

after finding that there were "numerous" similarities 

between the crimes committed against Scott and 

Chambliss and the pending charges against Johnson. 

 The trial court cited the following factors in 

its decision to permit the testimony of Scott and 

Chambliss. All three victims were young AfricanAmerican women. Scott and Chambliss both knew Johnson 

and allowed him to enter their homes. There was no 

sign of forced entry into Hall's apartment. Johnson 

assaulted both Scott and Chambliss after requesting a 

glass of water. He then seized knives from their 

kitchens. There was a broken drinking glass in Hall's 

kitchen, and the knives used to kill Hall came from 

her kitchen. 

 Johnson forced both Scott and Chambliss to remove 

all their clothing before raping them. Hall's body 

was totally nude and her clothes were found near her 

body. Johnson threatened both Scott and Chambliss, 

stating that he would kill them if they did not follow 

his directions. When Chambliss resisted and struggled 

with Johnson, he stabbed her. There was evidence of a 

5
struggle in Hall's apartment and Hall was fatally 

stabbed. All three crimes occurred within a [60]-day 

period in 1994. 

Id. (Footnote omitted). 

 Before the resentencing proceeding on remand, Johnson filed 

various motions in the circuit court. In one motion, Johnson 

asked the circuit court to prohibit the Commonwealth from using 

"live" testimony to present evidence of his guilt and to require 

the Commonwealth to "rely on the transcript as previously made 

to introduce this evidence." However, during another argument 

before the circuit court, Johnson objected to the Commonwealth's 

"use [of] transcripts versus live testimony and how it hinders 

the defense in its ability to cross-examine witnesses . . . and 

how it could have a prejudicial [e]ffect on the jury." Johnson 

also asked the circuit court to allow him to present evidence of 

his "innocence" during the resentencing hearing. The circuit 

court denied Johnson's requests and granted the Commonwealth's 

motion to prohibit Johnson from presenting evidence, crossexamining witnesses, or making any argument in relation to his 

claim of innocence. 

 Johnson also requested that the circuit court impose a life 

sentence on the ground that the jury in his first trial would 

have fixed punishment at life imprisonment on the capital murder 

charge had the jury been properly instructed concerning his 

ineligibility for parole. In support of this motion, Johnson 

6
presented affidavits from two jurors who served during Johnson's 

first trial. In the affidavits, the jurors stated that had they 

"known that Mr. Johnson would receive a sentence of life without 

the possibility of parole," they "would have recommended that 

sentence instead of the death penalty." The circuit court 

denied Johnson's motion. 

 Johnson also asked the circuit court to impose a life 

sentence on the ground that he was 16 years old at the time of 

these offenses. The circuit court denied this motion, as well 

as Johnson's motion that the capital murder and death penalty 

statutes be declared unconstitutional on various grounds. 

 Johnson further requested that the circuit court impose a 

life sentence based on his alleged "mental illness." Johnson 

asserted that he had been diagnosed as suffering from 

"Dissociative Identity Disorder" (DID), a mental condition which 

Johnson described as featuring "the presence of two or more 

distinct identities or personality states that recurrently take 

control of behavior." Johnson also represented that assessments 

of his intellectual functioning showed that he had an I.Q. score 

of 75 in 1991, and an I.Q. score of 78 in 1992. 

 A psychological evaluation, prepared in February 1991 by a 

certified school psychologist for the Franklin City Public 

Schools, concluded that Johnson was "a young man of limited 

intellectual potential whose academic achievement and other 

7
school-related skills are commensurate with expectations for the 

slow learning student." The report described Johnson's I.Q. 

score: 

[Johnson's] Full Scale I.Q. places him in the 

"borderline" range of cognitive development, with a 

95% chance that his true score falls between 69 and 

81. He obtained a Verbal Scale score of 81, a 

Performance Scale score of 72, and a Full Scale 

Intelligence Quotient of 75. 

Although the report classified Johnson as a "slow learner," it 

stated that Johnson's "learning status does not . . . indicate 

eligibility for special education services." The report 

concluded that Johnson was "in great need of emotional and 

academic support within the school setting." 

 Johnson argued to the circuit court that his low I.Q. 

scores could "qualify him to be considered as mentally retarded" 

and thus ineligible to receive the death penalty under the 

United States Supreme Court's ruling in Atkins III. Johnson 

further asserted that his low intelligence and his DID diagnosis 

indicated that he suffered from a "mental impairment sufficient 

to make him ineligible for the death penalty." The Commonwealth 

argued in response that there was no evidence indicating that 

Johnson was mentally retarded. 

 At the time of Johnson's resentencing proceeding, the 

General Assembly had not yet enacted legislation providing 

procedures to resolve claims of mental retardation raised by 

8
defendants in capital murder cases. In considering Johnson's 

claim, the circuit court relied on a definition of mental 

retardation found in proposed legislation that at the time had 

been approved by the Senate of Virginia but had not been voted 

upon by the House of Delegates. The circuit court stated: 

[T]he Senate passed the bill, and it has the same 

definition for mental retardation as the American 

Psychiatric Association. And under that bill . . . it 

had a two part definition of mentally retarded: In 

order to be considered mentally retarded inmates must 

have substantial subaverage, general intellectual 

function, existing concurrently with significant 

limitations and adaptive functioning, both of which 

were before the age of 18. The bill defines 

significantly subaverage general intellectual 

functioning at an IQ of 70 or below as measured by 

scientifically recognized and standardized 

intelligence quotient testing. 

 Significant limitations and adaptive intellectual 

functioning means significant limitation in two or 

more skill areas such as communication, self-care, 

home living, social and interpersonal skills, and 

health and safety according to the bill. 

The circuit court concluded that it had "not been presented any 

evidence as of this point of [mental] retardation under the 

definition which the Court adopts." The court denied Johnson's 

motion but indicated that he could renew his request upon 

presenting further evidence regarding his claim of mental 

retardation. 

 During Johnson's resentencing hearing, the Commonwealth 

presented to the jury evidence of Johnson's guilt. The parties 

stipulated that Johnson's blood was found on a knife taken from 

9
Hall's bathroom and on a broken glass discovered in Hall's 

kitchen. The jury also was informed that Johnson's sperm was 

found on Hall's bed sheets, bedspread, and in a "vaginal 

cervical swab" taken from Hall's body. In addition, the parties 

stipulated that Johnson had admitted to the police that he had 

been in Hall's apartment on the night of her murder. 

 The Commonwealth also presented evidence of Johnson's 

criminal record and of certain unadjudicated acts. The evidence 

showed that in August 1992, when Johnson was 14 years old, he 

sexually assaulted Elsie Soto in the State of New Jersey. In 

January 1994, he raped Nicole Lisa, also in the State of New 

Jersey. 

 On June 29, 1994, Johnson raped Tiffany Burgess in the 

State of New York. A few days later, Johnson raped Lavonda 

Scott in the City of Franklin, Virginia. In August 1994, he 

raped and abducted Janel Chambliss in the City of Franklin. 

Johnson also was convicted of breaking and entering into 

Chambliss' home with the intent to rape her. 

 In conjunction with this evidence of prior convictions, the 

Commonwealth presented the transcribed testimony of Tiffany 

Burgess given in Johnson's first trial, and read that testimony 

into evidence before the jury. Burgess testified that she was 

15 years old when Johnson lured her to a friend's apartment 

under the pretext of showing her a present he was planning to 

10
give to her friend. Burgess stated that once they arrived at 

the apartment door, Johnson grabbed her from behind, placed her 

in a "choke hold" while wielding a "big knife," and forced her 

inside the apartment. Burgess also stated that Johnson ordered 

her to remove all her clothing and to perform oral sodomy on him 

before he raped her at knifepoint. 

 Elsie Soto testified that she was 12 years old when Johnson 

sexually assaulted her. Soto stated that Johnson, who attended 

her school, had arrived at her house one day and asked to talk 

with her. Soto stated that after she refused to let Johnson 

come into the house, he gained forcible entry through a kitchen 

window. Soto testified that Johnson held her down on a bed and 

repeatedly hit her in the face while he exposed himself and 

fondled her breasts and vagina. 

 Nicole Lisa testified that she was 13 years old when 

Johnson raped her in January 1994. Lisa's testimony revealed 

that as she was leaving her apartment for school one morning, 

Johnson grabbed her from behind and placed a "steak knife" 

against her neck. Johnson "dragged" Lisa to the "back hallway 

elevator shaft" of her apartment building, where he ordered her 

to remove all her clothing before raping her at knifepoint. 

 Janel M. Chambliss testified that she was 15 years old and 

was babysitting her seven-month-old nephew when Johnson raped 

her. Johnson, who was Chambliss' neighbor, arrived at 

11
Chambliss' house and requested a glass of water. About that 

time, her nephew began to cry. When Chambliss picked up her 

nephew, Johnson approached her from behind and placed a "steak 

knife" against her throat. Johnson told Chambliss that "he came 

to do one thing and one thing only," and that he would kill both 

Chambliss and her nephew if she did not follow his instructions. 

 Chambliss then attempted to thwart Johnson's attack. 

During the ensuing struggle, Johnson stabbed Chambliss. Once 

Johnson gained physical control over Chambliss, he ordered her 

to perform oral sodomy on him. When she refused, Johnson raped 

her. 

 Lavonda S. Scott testified that she was 21 years old when 

Johnson raped her. Scott's testimony indicated that Johnson was 

a family friend and that she had known him for eight years 

before the attack. Johnson, who was 16 years old, did not have 

a place to live and had been spending some nights at Scott's 

house. 

 One night, when Scott's children were in the home, Johnson 

approached Scott from behind, pulled her hair, and pressed a 

"steak knife," which he had obtained from Scott's kitchen, "deep 

into [her] throat." Johnson told Scott that if she did not 

remove her clothing, he would stab and kill her. Johnson forced 

Scott to remove her clothes and to perform oral sodomy on him. 

12
Johnson then raped Scott while holding the knife against her 

body. 

 The Commonwealth next presented testimony from several of 

Hall's relatives, including her mother and her son, who related 

the impact of Hall's death on their lives. At the conclusion of 

the Commonwealth's evidence, Johnson moved to strike the 

evidence on the ground that the Commonwealth had failed to 

present sufficient evidence to establish either "future 

dangerousness" or "vileness." The circuit court denied 

Johnson's motion. 

 Johnson presented testimony from Annie Mae Stephens, his 

great aunt. Stephens testified that when Johnson was about 12 

years old, she went to visit Johnson and his mother, Angela, at 

their house. Stephens stated that upon arriving at the house, 

she observed Johnson leaving a room. Stephens stated that 

Johnson appeared to be "aggravated," "hurt," and "angry." 

Stephens further testified that she entered the room that 

Johnson had left and discovered Angela in the room, "bleeding 

between her legs." Stephens stated that Angela informed her 

that she had been raped by her boyfriend. Stephens was unaware 

whether Johnson had observed "any act going on" in the room. 

 Stephens testified that Johnson was close to his mother and 

that she was "good to him." Stephens also testified, however, 

13
that Angela abused drugs and was abusive toward Johnson when she 

disciplined him. 

 Virginia Dancy, Johnson's grandmother, testified that 

Johnson's stepfather was addicted to heroin and was "an abusive 

husband" to Angela. Dancy stated that Angela became addicted to 

heroin after she married Johnson's stepfather, and that Johnson 

had been exposed to their drug use. Dancy also stated that 

Angela had died of AIDS, and that Johnson's "problems with the 

law" did not begin until after his mother's death. 

 Dancy further testified that she had found Johnson and 

Angela in a "crack house" when Johnson was three years old, and 

that Johnson was standing in a large room among "a lot of 

people" who were using cocaine. Dancy stated that she took 

Johnson to the bathroom and that when he attempted to urinate, 

he informed her that his penis hurt. Dancy testified that when 

she observed that Johnson's penis was "red and swollen," he told 

her that "a lady did it." Dancy stated that when she informed 

Angela of Johnson's condition and his comment regarding the 

"lady," Angela replied that nobody had "been bothering" Johnson 

and that he merely had a bladder infection. 

 Sheila Wilson, Johnson's cousin and pastor, testified that 

she had visited Johnson in prison over the previous "year or 

two." Wilson stated that during her last visit with Johnson, 

which occurred several weeks before Johnson's resentencing 

14
hearing, he related two childhood memories that he had not 

mentioned before. Wilson testified that Johnson told her that 

he remembered sitting in the backseat of a car, which had been 

parked in a public park, while his mother and her boyfriend used 

heroin in the front seat. Wilson stated that Johnson also told 

her that he remembered discovering his mother lying in a bathtub 

with a syringe stuck in her arm. 

 Johnson also presented the testimony of Delores DungeeAnderson, a licensed clinical social worker who qualified as an 

expert in the diagnosis of Dissociative Identity Disorder (DID), 

formerly known as "multiple personality disorder," and 

"borderline personality disorder." After interviewing Johnson 

on three occasions before the resentencing hearing and examining 

his psychological reports, Dungee-Anderson concluded that 

Johnson suffered from DID and a possible borderline personality 

disorder. 

 Dungee-Anderson testified that DID often occurs as the 

result of a childhood trauma, such as severe emotional, 

physical, or sexual abuse. According to Dungee-Anderson, 

children exposed to such trauma often create "fragmented parts" 

within their minds as a survival tactic to allow them to escape 

mentally from any harm that they may be experiencing. These 

"fragmented parts" or "alters" are separate and distinct 

personalities that exist within the mind of an individual 

15
afflicted with DID. Different "alters" are "triggered" and 

emerge when the individual feels threatened or encounters 

certain other external stimuli. When an "alter" "takes control 

of the person," the other "alters" are often unaware of what is 

happening to the individual. 

 Dungee-Anderson concluded that Johnson had two separate 

"alters" that were distinct from Johnson's own personality. She 

testified that Johnson had an "alter" named "Shy," and that 

Johnson was consciously aware of that "alter," a phenomenon that 

she termed "co-consciousness." 

 According to Dungee-Anderson, Johnson described "Shy" as 

being different, stating that "I am very shy. . . . Sometimes I 

can't find the right words to talk to people. I don't know what 

to say," whereas "Shy is very confident; he can talk to the 

ladies. He is very different from me. He knows what to say." 

When Dungee-Anderson suggested to Johnson that "Shy" was an 

alternative personality, Johnson claimed that he was "not crazy" 

and that "Shy is me; he is not different from me; he is me." 

 Dungee-Anderson stated that during one of her interviews 

with Johnson, a different "alter" emerged that was characterized 

by "rage." Dungee-Anderson "called out" to this "alter" while 

she was leading Johnson through a relaxation technique. She 

stated that when the "rage alter" emerged, there was a "surge of 

16
energy" and the "rage alter" proclaimed that Johnson's mother, 

who had died in 1992, was in the room. 

 The "rage alter" stated that he was "mad" at his mother 

because she lied to him when she told him that "she wouldn't go 

anywhere" and then left him "in this world by [himself]." The 

"rage alter" mentioned Johnson's stepfather and then repeatedly 

stated, "nothing but abuse." The "rage alter" stated that he 

had "nothing but hate and contempt" for Johnson's stepfather 

because he had abused Johnson's mother. 

 When Dungee-Anderson asked the "rage alter" what he did 

when he experienced such strong feelings, the "rage alter" 

replied, "I strike out." After Dungee-Anderson asked him in 

what manner did he "strike out," the "rage alter" replied, 

"Whatever the situation calls for." When Dungee-Anderson asked 

him for specific examples of such behavior, Johnson's own 

personality reemerged. Johnson claimed that he did not remember 

any of the conversation between Dungee-Anderson and the "rage 

alter." 

 Dungee-Anderson testified that she did not believe that 

Johnson was lying about his condition in an attempt to convince 

her that he suffered from DID. She noted that Johnson did not 

want to continue with the interview when she sought more 

information, and that persons who attempt to deceive her about 

their condition typically wish to engage in further conversation 

17
with her. Dungee-Anderson further stated that Johnson 

experienced a "terrible migraine headache" when his personality 

"switched" between the "alters," which is a typical 

characteristic of those suffering from DID. 

 Dungee-Anderson also noted that Johnson had claimed to 

"hear voices," which is often symptomatic of DID. She stated 

that the memory loss Johnson experienced during episodes of 

conduct by his personality "alters" is another symptom of DID. 

Dungee-Anderson conceded, however, that Johnson could recall 

attacking Hall and most of his other victims. 

 Dungee-Anderson testified that DID is different from mental 

retardation and that based on Johnson's test results, he did not 

appear to have a "mental retardation problem." She also stated 

that Johnson had never been diagnosed as being mentally 

retarded. 

 Dungee-Anderson further testified that individuals 

suffering from DID typically have lower I.Q. scores because 

various "alters" may learn different information of which the 

individual as a whole may be unaware. Dungee-Anderson observed 

that "[i]f you are not in school for some information, you can't 

repeat it when you do the IQ testing. That is well-known in 

testing." 

 At the conclusion of the evidence, Johnson renewed his 

motion to strike the Commonwealth's evidence on the ground that 

18
the Commonwealth failed to establish "future dangerousness" or 

"vileness." The circuit court denied Johnson's motion. 

 The jury fixed Johnson's punishment at death, finding that 

there was a "probability that he would commit criminal acts of 

violence that would constitute a continuing serious threat to 

society." The jury also found that Johnson's "conduct in 

committing the offense is outrageously or wantonly vile, 

horrible or inhuman in that it involved torture[,] depravity of 

mind[,] [and] aggravated battery to the victim beyond the 

minimum necessary to accomplish the act of murder." 

 At the sentencing proceeding in the circuit court following 

the jury verdict, Johnson introduced in evidence DungeeAnderson's "psychological diagnostic assessment" of Johnson, 

which included much of the information she had provided to the 

jury. The circuit court also considered a pre-sentence 

investigation report (PSI), which stated that Johnson had 

completed the fifth grade and that he had exhibited "significant 

behavior and academic problems in school." However, attached to 

an earlier PSI was a "sex offender evaluation report," which 

stated that Johnson had completed the eighth grade while 

attending school in the State of New York. 

 Before imposing sentence on Johnson, the circuit court 

inquired whether Johnson wanted "to address whether there [was] 

any evidence to indicate that the jury imposed the sentence of 

19
death under influence of any passion, prejudice or other 

arbitrary factor." Johnson replied that he did not wish to make 

such an argument. 

 The circuit court sentenced Johnson to death in accordance 

with the jury verdict. In explaining its ruling, the court 

stated: 

 Upon a mature consideration of all of the 

evidence, including the defendant's mitigating 

evidence, the violent nature of this crime, and the 

defendant's past record which includes five rapes 

within a seven month period, the Court finds no good 

cause to overturn the jury's verdict. 

III. ISSUES PREVIOUSLY DECIDED 

 Johnson raises certain arguments that we resolved against 

him in his first appeal to this Court, consistent with our 

previous decisions on these issues. We reaffirm our earlier 

holdings and reject the following arguments: 

 A. Virginia's capital murder sentencing statutes fail to 

provide meaningful guidance to the jury concerning the meaning 

of the terms "future dangerousness" and "vileness." Rejected in 

Johnson, 259 Va. at 667, 529 S.E.2d at 776; accord Jackson v. 

Commonwealth, 266 Va. 423, 430, 587 S.E.2d 532, 538 (2003); 

Wolfe v. Commonwealth, 265 Va. 193, 208, 576 S.E.2d 471, 480, 

cert. denied, ___ U.S. ___, 124 S.Ct. 566 (2003); Walker v. 

Commonwealth, 258 Va. 54, 61, 515 S.E.2d 565, 569 (1999), cert. 

denied, 528 U.S. 1125 (2000); Cherrix v. Commonwealth, 257 Va. 

20
292, 299, 513 S.E.2d 642, 647, cert. denied, 528 U.S. 873 

(1999). 

 B. Virginia's statutory scheme fails to properly inform and 

instruct the jury concerning its consideration of mitigation 

evidence. Rejected in Johnson, 259 Va. at 667, 529 S.E.2d at 

776; accord Jackson, 266 Va. at 429, 587 S.E.2d at 538; 

Morrisette v. Commonwealth, 264 Va. 386, 398, 569 S.E.2d 47, 55 

(2002); Walker, 258 Va. at 61, 515 S.E.2d at 569; Cherrix, 257 

Va. at 299, 513 S.E.2d at 647; Goins v. Commonwealth, 251 Va. 

442, 452, 470 S.E.2d 114, 122, cert. denied, 519 U.S. 887 

(1996). 

 C. Virginia's capital murder sentencing statutes improperly 

allow the Commonwealth to prove "future dangerousness" by the 

use of unadjudicated criminal conduct, thereby omitting any 

standard of proof for the admission of such evidence. Rejected 

in Johnson, 259 Va. at 667, 529 S.E.2d at 776; accord Green v. 

Commonwealth, 266 Va. 81, 107, 580 S.E.2d 834, 849 (2003); 

Cherrix, 257 Va. at 299, 513 S.E.2d at 647; Jackson v. 

Commonwealth, 255 Va. 625, 635, 499 S.E.2d 538, 545 (1998), 

cert. denied, 525 U.S. 1067 (1999). 

 D. Virginia's capital murder sentencing statutes are 

unconstitutional because they allow, but do not require, the 

court to set aside a death sentence on a showing of good cause 

and permit the court to consider hearsay evidence in the pre21
sentence report. Rejected in Johnson, 259 Va. at 667-68, 529 

S.E.2d at 776; see also Bell v. Commonwealth, 264 Va. 172, 203, 

563 S.E.2d 695, 716 (2002), cert. denied, 537 U.S. 1123 (2003); 

Lenz v. Commonwealth, 261 Va. 451, 459, 544 S.E.2d 299, 303-04, 

cert. denied, 534 U.S. 1003 (2001); Walker, 258 Va. at 61, 515 

S.E.2d at 569; Cherrix, 257 Va. at 299, 513 S.E.2d at 647. 

 E. Johnson also raises an issue that was not presented in 

his first appeal but has been decided adversely to his position 

in our previous decisions. Johnson asserts that this Court 

fails to conduct its proportionality and "passion-prejudice" 

review consistent with constitutional requirements. We perceive 

no reason to modify our previously-expressed views rejecting 

this argument. See Bell, 264 Va. at 203, 563 S.E.2d at 716; 

Lenz, 261 Va. at 459, 544 S.E.2d at 304; Satcher v. 

Commonwealth, 244 Va. 220, 228, 421 S.E.2d 821, 826 (1992), 

cert. denied, 507 U.S. 933 (1993). 

IV. CHALLENGES TO RESENTENCING PROCEDURES AND TESTIMONY 

 Initially, we observe that Johnson argues that the 

resentencing proceeding violated his constitutional protection 

against double jeopardy. He bases this claim chiefly on the 

affidavits executed by two jurors at his first trial stating 

that they would not have voted for the death penalty if they had 

been properly instructed regarding Johnson's ineligibility for 

parole. Johnson also argues that his resentencing violated 

22
double jeopardy principles because the prosecution acted in "bad 

faith" at his first trial by failing to require that the jury be 

instructed correctly regarding the parole eligibility issue. We 

do not reach the merits of these arguments, however, because 

Johnson did not argue during the resentencing proceedings any 

issue regarding double jeopardy or "bad faith" by the 

prosecution. See Rule 5:25. 

 Johnson next argues that the resentencing procedure 

provided in Code § 19.2-264.3 violates his constitutional right 

of due process by improperly shifting the burden of proof, 

thereby requiring him to prove that he should receive a life 

sentence instead of the death penalty. Johnson further contends 

that the jury at the resentencing proceeding was not able to 

"gain the same feel" for the case due to his inability to 

challenge the Commonwealth's evidence of guilt and to raise 

issues of "residual doubt." Johnson argues, therefore, that the 

jury at his resentencing proceeding was more biased in favor of 

imposing the death penalty, and that the circuit court should 

have imposed a life sentence based on these defects in the 

statutory scheme, as well as on the two juror affidavits from 

his first trial. We disagree with Johnson's arguments. 

 Code § 19.2-264.3 provides, in relevant part: 

 If the sentence of death is subsequently set 

aside or found invalid, and the defendant or the 

Commonwealth requests a jury for purposes of 

23
resentencing, the court shall impanel a different jury 

on the issue of penalty. 

 The resentencing procedure set forth in this statute did 

not violate Johnson's due process rights. During any 

resentencing proceeding conducted under the statute, the 

Commonwealth bears the burden of proving beyond a reasonable 

doubt that the death sentence should be imposed based on 

evidence of the defendant's "future dangerousness" or on the 

"vileness" of the crime committed, or on proof of both 

aggravating factors. Because the issue of a defendant's guilt 

has already been decided at the guilt phase of a capital murder 

trial, the defendant is not permitted to challenge the 

Commonwealth's evidence of guilt during the penalty phase, 

whether in the original trial or in a resentencing proceeding. 

See Atkins v. Commonwealth, 260 Va. 375, 379-80, 534 S.E.2d 312, 

314-15 (2000) (Atkins II), rev'd on other grounds, 536 U.S. 304 

(2002); Stockton v. Commonwealth, 241 Va. 192, 210-11, 402 

S.E.2d 196, 206-07, cert. denied, 502 U.S. 902 (1991); Frye v. 

Commonwealth, 231 Va. 370, 393-94, 345 S.E.2d 267, 283 (1986). 

For the same reason, a defendant may not argue during the 

penalty phase proceedings that there is a "residual doubt" 

concerning his guilt. See Atkins II, 260 Va. at 379-80, 534 

S.E.2d at 314-15; Lilly v. Commonwealth, 255 Va. 558, 579, 499 

24
S.E.2d 522, 537 (1998), rev'd on other grounds, 527 U.S. 116 

(1999); Stockton, 241 Va. at 211, 402 S.E.2d at 207. 

 All the evidence presented at Johnson's resentencing 

proceeding was relevant to the issues of "future dangerousness" 

and "vileness." In addition to the evidence presented by the 

Commonwealth, the jury heard extensive evidence from witnesses 

who testified on Johnson's behalf. Therefore, we find no merit 

in Johnson's argument that the resentencing proceeding in this 

case was "biased," requiring the circuit court to impose a life 

sentence in place of the jury verdict. 

 We also observe that in Johnson's habeas corpus petition 

filed after his original direct appeal, Johnson requested, among 

other things, a new sentencing proceeding. Having received the 

remedy he sought, Johnson cannot complain now that his request 

was granted. See Bell, 264 Va. at 185, 563 S.E.2d at 705; Board 

of Supervisors v. Sentry Ins. A Mut. Co., 239 Va. 622, 624 n.*, 

391 S.E.2d 273, 274 n.* (1990); Newsom v. Commonwealth, 207 Va. 

844, 847, 153 S.E.2d 235, 237 (1967). 

 Johnson further argues that the circuit court erred in 

allowing the Commonwealth to present both live and transcribed 

testimony while prohibiting Johnson from challenging the 

veracity of that testimony before the jury. This argument, 

however, is partially inconsistent with earlier arguments he 

made in the circuit court. As stated above, before his 

25
resentencing proceeding, Johnson initially asked the circuit 

court to prohibit the Commonwealth from presenting its evidence 

through "live" witnesses, rather than from transcripts of the 

original trial. Later in the proceedings, however, Johnson 

changed his position and objected to the Commonwealth's use of 

transcripts, claiming that such use would eliminate his ability 

to cross-examine the witnesses. 

 We conclude that Johnson's re-framed argument on appeal has 

no merit. With regard to the admission of transcribed testimony 

from the first trial, we observe that Tiffany Burgess was the 

only witness whose testimony was presented in this manner. We 

hold that the admission of such transcribed testimony at a 

resentencing proceeding conducted under Code § 19.2-264.3 is a 

matter submitted to the circuit court's discretion. See Hills 

v. Commonwealth, 262 Va. 807, 811, 553 S.E.2d 722, 724 (2001);

Stockton, 241 Va. at 205-07, 402 S.E.2d at 203-05; Fogg v. 

Commonwealth, 215 Va. 164, 168, 207 S.E.2d 847, 850 (1974). 

Here, the circuit court did not abuse its discretion in 

admitting Burgess' testimony because it was relevant to the 

issue of Johnson's "future dangerousness," and Johnson had been 

afforded a full opportunity to cross-examine her entire 

testimony at the original trial. 

 We also conclude that the trial court did not abuse its 

discretion in allowing the Commonwealth to present "live" 

26
witnesses and in restricting Johnson from cross-examining those 

witnesses on matters related to Johnson's guilt. The jury at 

the resentencing proceeding was required to consider the 

circumstances of the murder in determining whether the 

Commonwealth had proved the statutory predicates of "future 

dangerousness" or "vileness," and in ascertaining the proper 

penalty to be imposed for the crime. See Code § 19.2-264.2. In 

addition, because Johnson's guilt was not a matter at issue in 

the resentencing proceeding, the circuit court properly 

restricted Johnson from cross-examining the witnesses regarding 

his commission of the murder. 

V. CLAIM OF MENTAL RETARDATION 

 Johnson argues that because he presented extensive evidence 

of "mental illness" at the resentencing proceeding, he is 

entitled under Code § 8.01-654.2 to have his case remanded to 

the circuit court for a jury to consider whether he is mentally 

retarded. He contends that he has presented sufficient 

evidence, including evidence of his low I.Q. scores and his DID, 

which demonstrates that his claim is not frivolous and that he 

may suffer from mental retardation "as it is commonly defined." 

Thus, he asserts that his case should be remanded to the circuit 

court for a determination whether he is mentally retarded under 

Code § 19.2-264.3:1.1 and this Court's most recent opinion in 

27
Atkins, 266 Va. 73, 581 S.E.2d 514 (2003) (Atkins IV). We 

disagree with Johnson's arguments. 

 After the circuit court entered final judgment in November 

2002 imposing the death sentence fixed by the jury in the 

resentencing proceeding, the General Assembly enacted Code 

§§ 8.01-654.2 and 19.2-264.3:1.1. These statutes provide a 

mandatory procedure for the consideration of issues of mental 

retardation raised by defendants in capital murder cases. Code 

§ 8.01-654.2 provides, in relevant part: 

[A]ny person under sentence of death whose sentence 

became final in the circuit court before April 29, 

2003, and who desires to have a claim of his mental 

retardation presented to the Supreme Court, shall do 

so by one of the following methods: (i) if the person 

has not commenced a direct appeal, he shall present 

his claim of mental retardation by assignment of error 

and in his brief in that appeal . . . . A person 

proceeding under this section shall allege the factual 

basis for his claim of mental retardation. The 

Supreme Court shall consider a claim raised under this 

section and if it determines that the claim is not 

frivolous, it shall remand the claim to the circuit 

court for a determination of mental retardation; 

otherwise the Supreme Court shall dismiss the 

petition. The provisions of §§ 19.2-264.3:1.1 and 

19.2-264.3:1.2 shall govern a determination of mental 

retardation made pursuant to this section. 

Code § 19.2-264.3:1.1(A) states, in relevant part: 

"Mentally retarded" means a disability, originating 

before the age of 18 years, characterized concurrently 

by (i) significantly subaverage intellectual 

functioning as demonstrated by performance on a 

standardized measure of intellectual functioning 

administered in conformity with accepted professional 

practice, that is at least two standard deviations 

below the mean and (ii) significant limitations in 

28
adaptive behavior as expressed in conceptual, social 

and practical adaptive skills. 

 In Atkins IV, we explained that the General Assembly 

enacted these statutes after the United States Supreme Court's 

decision in Atkins III, which gave the individual states the 

task of developing procedures for enforcing constitutional 

restrictions on the execution of the death penalty. Atkins IV, 

266 Va. at 79, 581 S.E.2d at 517. Because Johnson's sentence of 

death became final in the circuit court before April 29, 2003, 

we consider pursuant to Code § 8.01-654.2 whether his claim of 

mental retardation is frivolous. 

 In Code § 19.2-264.3:1.1(A), the General Assembly has 

articulated a two-fold test that a criminal defendant is 

required to meet to establish that he is mentally retarded. 

Thus, a criminal defendant who seeks to demonstrate to this 

Court that his claim of mental retardation is not frivolous must 

be able to point to credible evidence in the record supporting 

the requirements set forth in the statutory test. 

 In the present case, we hold that Johnson's claim of mental 

retardation is frivolous. Johnson's own evidence directly 

refutes his assertion of mental retardation. As stated above, 

his expert witness, Dungee-Anderson, testified that Johnson is 

not mentally retarded. The record also shows that Johnson was 

administered two standardized tests, commonly known as I.Q. 

29
tests, which met the descriptive criteria of Code § 19.2-

264.3:1.1(A)(i). His scores of 75 and 78 on these I.Q. tests 

exceed the score of 70 that the General Assembly has chosen as 

the threshold score below which one may be classified as being 

mentally retarded. See id.; American Psychiatric Association, 

Diagnostic and Statistical Manual of Mental Disorders, 39 (4th 

ed. 1994) (DSM-IV). 

 We further observe that Johnson conceded at oral argument 

in this appeal that the record contains no evidence showing that 

his alleged DID condition is indicative of mental retardation as 

defined by the General Assembly in Code § 19.2-264.3:1.1(A). 

Therefore, we decline Johnson's request that a jury consider his 

allegation of mental retardation because the present record 

shows as a matter of law that Johnson is unable to meet the 

statutory definition of "mentally retarded." 

 Johnson argues, nevertheless, that based on the Supreme 

Court's decision in Atkins III barring execution of the mentally 

retarded, the circuit court erred in refusing to impose a life 

sentence at his resentencing on the capital murder conviction. 

We find no merit in this assertion. Because we have concluded 

that Johnson's claim of mental retardation is frivolous, we 

necessarily conclude that the circuit court did not err in 

refusing to impose a life sentence based on Johnson's 

unsupported allegation. 

30
VI. CHALLENGE TO DEATH PENALTY IMPOSED ON JUVENILE DEFENDANT 

 Johnson argues that the circuit court should have imposed a 

life sentence because he was 16 years old at the time of these 

offenses. Johnson acknowledges that the United States Supreme 

Court, in Stanford v. Kentucky, 492 U.S. 361, 380 (1989), upheld 

the death sentence imposed on a capital murder defendant who was 

16 years old at the time of the offense. Nevertheless, Johnson 

contends that the United States Supreme Court has indicated by 

its Atkins III decision a willingness to depart from some of its 

other precedent rejecting Eighth Amendment challenges of "cruel 

and unusual punishment." Johnson contends that this Court 

should apply a similar analysis as that employed in Atkins III

and conclude that under "evolving standards of decency" and 

recent trends in the various states, the execution of juvenile 

defendants also constitutes "cruel and unusual punishment" in 

violation of the Eighth Amendment.* We disagree with Johnson's 

arguments. 

 We apply the holding of Stanford that the Eighth 

Amendment's prohibition against cruel and unusual punishment 

does not forbid the imposition of the death sentence on a person 

who commits capital murder at 16 or 17 years of age. 492 U.S. 

 *

 We note that in this appeal Johnson does not challenge 

under any provision of the Constitution of Virginia the 

imposition of the death penalty for 16 and 17-year-old persons 

convicted of capital murder. 

31
at 380; accord Jackson, 255 Va. at 647, 499 S.E.2d at 552; 

Wright v. Commonwealth, 245 Va. 177, 181, 427 S.E.2d 379, 383 

(1993), vacated on other grounds, 512 U.S. 1217 (1994). In the 

absence of such a constitutional prohibition, we hold that any 

further determination whether 16 and 17-year-old persons 

convicted of capital murder should be eligible to receive the 

death penalty in Virginia is a matter to be decided by the 

General Assembly, not by the courts. 

 In reaching this conclusion, we directly reject Johnson's 

argument that we should anticipate that the United States 

Supreme Court may reexamine and reverse its holding in Stanford

under an analysis similar to the one that the Court applied in 

Atkins III. When a precedent of the Supreme Court has direct 

application in a case, we are not at liberty to ignore that 

precedent in favor of other Supreme Court decisions employing a 

similar analysis in a different factual and legal context. See

Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 

477, 484 (1989); see also United States v. Hatter, 532 U.S. 557, 

567 (2001); Hohn v. United States, 524 U.S. 236, 252 (1998). As 

the Supreme Court has stated, courts "should follow the case 

which directly controls, leaving to [the Supreme] Court the 

prerogative of overruling its own decisions." Rodriguez de 

Quijas, 490 U.S. at 484. 

32
 We also find no merit in Johnson's argument that he 

received the death penalty in part based on crimes he committed 

before he reached 16 years of age. Johnson raped and murdered 

Hope Hall when he was 16 years old and he was sentenced to death 

for the capital murder of Hall, and for no other crime. The 

history of his prior criminal conduct was properly placed before 

the jury pursuant to Code § 19.2-264.2, because the jury was 

required to determine the appropriate punishment for Johnson's 

act of capital murder, including the issue whether Johnson 

represented a continuing serious threat to society. 

VII. SENTENCE REVIEW 

 Under Code § 17.1-313(C), we review the death sentence 

imposed on Johnson to determine whether it (1) was imposed under 

the influence of passion, prejudice, or any other arbitrary 

factor; or (2) is excessive or disproportionate to the penalty 

imposed in similar cases, considering both the crime and the 

defendant. 

Passion and Prejudice

 Johnson does not contend that the jury verdict fixing the 

death penalty reflects the influence of passion, prejudice, or 

any other arbitrary factor. Nevertheless, we have conducted an 

independent review of the record, and we conclude that the jury 

verdict does not reflect the influence of any such impermissible 

factors. 

33
Excessiveness and Proportionality

 Johnson does not contend in this appeal that his sentence 

is disproportionate and excessive when compared to the penalties 

imposed on other defendants who committed similar offenses. 

Notwithstanding this fact, we are directed by Code § 17.1-

313(C)(2) to make an independent determination regarding this 

question. In conducting our proportionality review, we must 

determine "whether other sentencing bodies in this jurisdiction 

generally impose the supreme penalty for comparable or similar 

crimes, considering both the crime and the defendant." Jenkins 

v. Commonwealth, 244 Va. 445, 461, 423 S.E.2d 360, 371 (1992), 

cert. denied, 507 U.S. 1036 (1993); accord Remington v. 

Commonwealth, 262 Va. 333, 362, 551 S.E.2d 620, 638 (2001), 

cert. denied, 535 U.S. 1062 (2002); Schmitt v. Commonwealth, 262 

Va. 127, 152, 547 S.E.2d 186, 203 (2001), cert. denied, 534 U.S. 

1094 (2002); Hedrick v. Commonwealth, 257 Va. 328, 342, 513 

S.E.2d 634, 642, cert. denied, 528 U.S. 952 (1999). 

 We compare the record in the present case with the records 

of our other capital murder cases, including those cases in 

which a life sentence has been imposed. We have reviewed the 

records of all capital cases considered by this Court under Code 

§ 17.1-313(E). Because the jury in this resentencing proceeding 

imposed the death sentence based on both statutory predicates of 

future dangerousness and vileness, we give particular 

34
consideration to other capital murder convictions in which the 

death sentence was based on both predicates. 

 Johnson's age at the time he raped and murdered Hope Hall 

is only one factor that we consider in determining whether 

juries generally impose the death penalty for similar crimes. 

The record also shows that Johnson committed five rapes within a 

period of seven months, and that he stabbed one of these rape 

victims. 

 Johnson inflicted multiple stab wounds on Hope Hall in the 

course of murdering her. These numerous stab wounds inflicted 

on Hall are indicative of the vileness of the present murder and 

represent the culmination of a pattern of escalating violence 

over the course of Johnson's commission of the numerous rapes 

referenced above. 

 Juries in this Commonwealth generally, with some 

exceptions, have imposed the death sentence for convictions of 

capital murder based on findings of vileness and future 

dangerousness in which the underlying predicate offenses 

involved violent sexual crimes and the defendant had committed 

violent crimes on other occasions. See, e.g., Morrisette, 264 

Va. 386, 569 S.E.2d 47; Vinson v. Commonwealth, 258 Va. 459, 522 

S.E.2d 170 (1999), cert. denied, 530 U.S. 1218 (2000); Hedrick, 

257 Va. 328, 513 S.E.2d 634; Cherrix, 257 Va. 292, 513 S.E.2d 

642; Payne v. Commonwealth, 257 Va. 216, 509 S.E.2d 293 (1999); 

35
Barnabei v. Commonwealth, 252 Va. 161, 477 S.E.2d 270 (1996), 

cert. denied, 520 U.S. 1224 (1997); Wilson v. Commonwealth, 249 

Va. 95, 452 S.E.2d 669, cert. denied, 516 U.S. 841 (1995); 

Williams v. Commonwealth, 248 Va. 528, 450 S.E.2d 365 (1994), 

cert. denied, 515 U.S. 1161 (1995); Breard v. Commonwealth, 248 

Va. 68, 445 S.E.2d 670, cert. denied, 513 U.S. 971 (1994); 

Mueller v. Commonwealth, 244 Va. 386, 422 S.E.2d 380 (1992), 

cert. denied, 507 U.S. 1043 (1993); Spencer v. Commonwealth, 238 

Va. 295, 384 S.E.2d 785 (1989), cert. denied, 493 U.S. 1093 

(1990); Coleman v. Commonwealth, 226 Va. 31, 307 S.E.2d 864 

(1983), cert. denied, 465 U.S. 1109 (1984). Based on this 

review, we hold that Johnson's death sentence is neither 

excessive nor disproportionate to penalties imposed by other 

sentencing bodies in this Commonwealth, considering both the 

crime and the defendant. 

VIII. CONCLUSION 

 We find no reversible error in the circuit court's 

judgment. Having reviewed Johnson's death sentence under the 

provisions of Code § 17.1-313, we decline to commute the 

sentence of death. Accordingly, we will affirm the circuit 

court's judgment. 

Affirmed.

36