Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and 

Lemons, JJ. and Carrico,1 S.J. 

DARYL RENARD ATKINS 

v. Record No. 000395 OPINION BY JUSTICE CYNTHIA D. KINSER 

 June 6, 2003 

COMMONWEALTH OF VIRGINIA 

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES 

 This capital murder case is presently before this 

Court on remand from the Supreme Court of the United 

States. Atkins v. Virginia, 536 U.S. 304, 321 (2002) 

(Atkins III). The Supreme Court reversed this Court’s 

judgment in Atkins v. Commonwealth, 260 Va. 375, 534 S.E.2d 

312 (2000) (Atkins II), and held that “the Constitution 

‘places a substantive restriction on the State’s power to 

take the life’ of a mentally retarded offender.” Atkins 

III, 536 U.S. at 321 (quoting Ford v. Wainwright, 477 U.S. 

399, 405 (1986)). 

 The defendant, Daryl Renard Atkins, was convicted in 

the Circuit Court of York County of the capital murder of 

Eric Michael Nesbitt and was sentenced to death. We 

affirmed his conviction but remanded the case to the 

circuit court for a new penalty proceeding. Atkins v. 

 1

 Chief Justice Carrico presided and participated in 

the hearing and decision of this case prior to the 

effective date of his retirement on January 31, 2003. 
Commonwealth, 257 Va. 160, 180, 510 S.E.2d 445, 457 (1999) 

(Atkins I). At re-sentencing, a different jury again fixed 

Atkins’ punishment at death, and the circuit court imposed 

the death penalty in accordance with the jury verdict. 

Atkins II, 260 Va. at 378-79, 534 S.E.2d at 314. 

 On appeal from the second penalty proceeding, Atkins 

argued, among other things, that this Court, as part of our 

proportionality review, see Code § 17.1-313(C), should 

commute his sentence of death to life imprisonment because 

he is mentally retarded. Atkins II, 260 Va. at 386, 534 

S.E.2d at 318. We rejected his argument and affirmed the 

judgment of the circuit court.2 Id. at 390, 534 S.E.2d at 

321. Based on the record before us and considering “both 

the crime and the defendant,” Code § 17.1-313(C), we could 

not say that Atkins’ death sentence was “excessive or 

disproportionate to sentences generally imposed in this 

Commonwealth for capital murders comparable to Atkins’ 

murder of Nesbitt.” Atkins II, 260 Va. at 390, 534 S.E.2d 

at 321. Nor were we willing to commute Atkins’ sentence of 

death to life imprisonment because of his IQ score. Id.

 2 Atkins II was decided by a divided Court. Atkins II, 

260 Va. at 390-96, 534 S.E.2d 321-24 (Hassell, J., joined 

by Koontz, J., concurring in part and dissenting in part); 

id. at 396-97, 534 S.E.2d at 324-25 (Koontz, J., joined by 

Hassell, J., dissenting). 

2
 Thereafter, Atkins successfully petitioned the Supreme 

Court of the United States for a writ of certiorari. 

Atkins v. Virginia, 533 U.S. 976 (2001) (order granting 

writ of certiorari). The Supreme Court concluded that a 

national legislative consensus against the execution of 

mentally retarded offenders had developed since its 

decision in Penry v. Lynaugh, 492 U.S. 302 (1989). Atkins 

III, 536 U.S. at 316. The Court identified two reasons 

consistent with that consensus to justify a categorical 

exclusion of the mentally retarded from execution. Id. at 

318. First, neither of the justifications for recognizing 

the death penalty, retribution and deterrence, applies to 

mentally retarded offenders. Id. at 318-19. Second, the 

diminished capacity of mentally retarded offenders places 

them at greater risk of wrongful execution. Id. at 320-21. 

Thus, the Supreme Court reversed our judgment in Atkins II

and remanded the case to this Court for “further 

proceedings not inconsistent with” its opinion. Atkins 

III, 536 U.S. at 321. 

 Before addressing what further proceedings are 

necessary and would be consistent with the Supreme Court’s 

decision, we must first determine whether the Supreme Court 

decided that Atkins is, in fact, mentally retarded, thus 

requiring this Court to commute his sentence of death to 

3
life imprisonment. We conclude that the Supreme Court did 

not make that determination, nor has the question of 

Atkins’ mental retardation been answered at any point in 

his case. 

 In Atkins II, after summarizing the testimony of the 

two forensic clinical psychologists who testified at the 

re-sentencing hearing, we stated that the jury “heard 

extensive, but conflicting, testimony from [the 

psychologists] regarding Atkins’ mental retardation.” 260 

Va. at 388, 534 S.E.2d at 320. Continuing, we held that 

“[t]he question of Atkins’ mental retardation is a factual 

one, and as such, it is the function of the factfinder, not 

this Court, to determine the weight that should be accorded 

to expert testimony on that issue.” Id. The Supreme Court 

did not reverse that portion of our holding in Atkins II. 

Nor did the Supreme Court state whether the issue of mental 

retardation is a question of fact or law. 

 The Supreme Court did, however, state that, “[t]o the 

extent there is serious disagreement about the execution of 

mentally retarded offenders, it is in determining which 

offenders are in fact retarded.” Atkins III, 536 U.S. at 

318-19. Acknowledging that the Commonwealth of Virginia 

disputes whether Atkins suffers from mental retardation, 

the Court noted that “[n]ot all people who claim to be 

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mentally retarded will be so impaired as to fall within the 

range of mentally retarded offenders about whom there is a 

national consensus.” Id. at 317. But, the Court did not 

decide which defendants fit within that range or whether 

Atkins does, nor did it define the term “mental 

retardation.” Instead, the Court left “ ‘to the States the 

task of developing appropriate ways to enforce the 

constitutional restriction upon its execution of 

sentences.’ ” Id. (quoting Ford, 477 U.S. at 405). 

 We also note that the jury at the re-sentencing 

hearing did not resolve the question of Atkins’ mental 

retardation. Pursuant to the provisions of Code § 19.2-

264.4(B)(vi), the jury was required to consider evidence of 

mental retardation in mitigation of capital murder, but it 

was not required to make a definitive determination whether 

Atkins suffers from mental retardation. As we pointed out 

in Atkins II, the re-sentencing jury was instructed “to 

consider any evidence in mitigation of the offense, and the 

jury obviously found that Atkins’ IQ score did not mitigate 

his culpability for the murder of Nesbitt.” 260 Va. at 

388, 534 S.E.2d at 320. 

 Although Atkins acknowledges on brief that the Supreme 

Court did not make an explicit finding with regard to 

whether he suffers from mental retardation, he, 

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nevertheless, argues that the Court implicitly concluded 

that he is mentally retarded. Otherwise, according to 

Atkins, he would not have had standing to raise the 

question whether the Eighth Amendment proscribes execution 

of a mentally retarded offender and the Supreme Court’s 

decision would be an advisory opinion. We do not agree. 

In granting Atkins’ petition for a writ of certiorari, 

the Supreme Court decided to revisit the legal issue that 

it had previously considered in Penry and, accordingly, 

framed the issue as “[w]hether the execution of mentally 

retarded individuals convicted of capital crimes violates 

the Eighth Amendment[.]” Atkins v. Virginia, 534 U.S. 809 

(2001)(amended order granting writ of certiorari). Atkins 

had standing to raise that constitutional issue because of 

the allegations, evidence, and argument presented in the 

circuit court, and on appeal to this Court, that he is 

mentally retarded. He demonstrated a “ ‘personal stake in 

the outcome[,]’ ” thereby “ ‘assur[ing] that concrete 

adverseness which sharpens the presentation of issues’ 

necessary for the proper resolution of constitutional 

questions.” City of Los Angeles v. Lyons, 461 U.S. 95, 101 

(1983) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). 

The Supreme Court resolved the legal issue by 

announcing a new rule of constitutional law and then 

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remanded Atkins’ case to this Court for further proceedings 

not inconsistent with that new rule. Since the 

controverted factual question whether Atkins suffers from 

mental retardation has never been resolved, any further 

proceeding, consistent with the Supreme Court’s remand, 

must be one in which that question is answered and the 

Eighth Amendment prohibition against the execution of 

mentally retarded offenders is applied to that factual 

determination. Such a proceeding will not render the 

Supreme Court’s decision in Atkins III advisory but will 

implement that decision.3

 The Supreme Court’s remand in this case is 

procedurally similar to the remand in Ford v. Wainwright. 

There, the Supreme Court held that the Eighth Amendment 

prohibits a State from executing an insane prisoner. 477 

U.S. at 410. The Court then stated that the prisoner’s 

“allegation of insanity in his habeas corpus petition, if 

proved, therefore, would bar his execution.” Id. Although 

the Court found that the “State’s procedures for 

 3

 Our conclusion is not altered by the Commonwealth’s 

argument on brief in the Supreme Court that Atkins is not a 

mentally retarded individual and that, therefore, any 

decision by that Court would be an advisory opinion. The 

Court obviously rejected the Commonwealth’s position but, 

in its role as an appellate court, did not resolve the 

underlying disputed factual issue regarding Atkins’ mental 

retardation. 

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determining sanity [were] inadequate to preclude federal 

redetermination of the constitutional issue[,]” it, 

nevertheless, left to “the State the task of developing 

appropriate ways to enforce the constitutional restriction 

upon its execution of sentences.” Id. at 416-17. The 

Court then remanded the proceeding to a federal district 

court for a de novo evidentiary hearing on the question of 

the prisoner’s competence to be executed. Id. at 418. The 

Supreme Court does not “deny standing simply because the 

‘appellant, although prevailing . . . on the federal 

constitutional issue, may or may not ultimately win.’ ” 

Orr v. Orr, 440 U.S. 268, 273 (1979) (quoting Stanton v. 

Stanton, 421 U.S. 7, 18 (1975)). 

 Turning now to consider what type of proceeding is 

necessary and consistent with the Supreme Court’s opinion, 

we note that the General Assembly, in response to the 

Supreme Court’s giving to the States the task of developing 

an appropriate way to enforce its constitutional 

restriction on the execution of the death penalty, enacted 

emergency legislation that is already effective. See Code 

§§ 8.01-654.2, 18.2-10, 19.2-175, 19.2-264.3:1, 19.2-

264.3:1.1, 19.2-264.3:1.2, 19.2-264.3:3, and 19.2-264.4. 

In that legislation, the General Assembly, among other 

things, defined the term “mentally retarded.” 

8
 “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 adaptive behavior as expressed in 

conceptual, social and practical adaptive skills. 

Code § 19.2-264.3:1.1(A). The General Assembly also 

provided that a defendant has the burden of proving mental 

retardation by a preponderance of the evidence. Code 

§ 19.2-264.3:1.1(C). 

 In light of this legislation, which is applicable to 

Atkins’ case, see Code § 8.01-654.2, the Supreme Court’s 

mandate requiring further proceedings not inconsistent with 

its opinion, and the fact that the question of Atkins’ 

mental retardation has never been answered, we conclude 

that this case must be remanded to the Circuit Court of 

York County for a hearing on the sole issue of whether 

Atkins is mentally retarded as defined in Code § 19.2-

264.3:1.1(A). In accordance with the provisions of Code 

§ 8.01-654.2, which require this Court to consider a claim 

of mental retardation presented by a person sentenced to 

death before the effective date of the emergency 

legislation and to determine whether the claim is 

frivolous, and upon reviewing the evidence of mental 

9
retardation presented at the re-sentencing hearing in 

Atkins II, 260 Va. at 386-90, 534 S.E.2d at 319-21, we find 

that Atkins’ claim of mental retardation is not frivolous. 

Because Atkins first presented his claim to this Court on 

direct appeal from the re-sentencing hearing and the case 

is now being remanded to the circuit court where the 

sentence of death was imposed by a jury, “the circuit court 

shall empanel a new jury for the sole purpose of making a 

determination of mental retardation.” Code § 8.01-654.2. 

The hearing should conform to the requirements of the 

General Assembly’s emergency legislation. 

 Thus, we will remand this case to the circuit court 

for further proceedings consistent with this opinion and 

with the opinion of the Supreme Court in Atkins III. 

Remanded. 

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