PRESENT: All the Justices 

DARYL RENARD ATKINS 

 OPINION BY 

v. Record Nos. 981477 & 981478 JUSTICE LAWRENCE L. KOONTZ, JR. 

February 26, 1999*

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF YORK COUNTY 

N. Prentis Smiley, Jr., Judge 

 In this appeal, we review the capital murder conviction and 

death sentence imposed by a jury on Daryl Renard Atkins. 

I.

PROCEEDINGS

 On November 19, 1996, indictments were returned against 

Atkins charging that on August 17, 1996, Atkins abducted, 

robbed, and murdered Eric Michael Nesbitt in the commission of 

the robbery. Code §§ 18.2-48, -58, and -31(4). Atkins was also 

charged with use of a firearm while committing each of these 

offenses. Code § 18.2-53.1.1

 Atkins filed a pre-trial motion to have the Virginia 

capital murder and death penalty statutes declared 

unconstitutional. Along with this motion, Atkins filed an 

extensive brief containing multiple theories for his assertion 

that the substantive criminal law and procedural statutes 

 *

The January 8, 1999 opinion was withdrawn when a petition 

for rehearing was granted February 23, 1999. 

1

Prior to trial, Atkins pled guilty to the abduction and 

robbery charges and their associated firearm crimes. He does 
governing capital crimes in Virginia are constitutionally 

deficient. The trial court, relying on conclusive statements of 

this Court supporting the constitutionality of these statutes, 

overruled this motion. The trial court also denied Atkins’ 

motion for additional peremptory juror challenges. 

 In a motion in limine, Atkins sought to limit the 

introduction by the Commonwealth of DNA evidence related to 

blood samples found in Nesbitt’s truck which indicated that 

Atkins and Nesbitt were the sources of that blood. Atkins 

asserted that this evidence was not sufficiently credible 

because William A. Jones was also an occupant of the truck and 

his blood had not been subjected to the DNA testing. In the 

alternative, Atkins sought to have a blood sample obtained from 

Jones and DNA tests performed thereon to establish whether Jones 

was a potential source for the blood found in the truck. The 

trial court received a proffer from the Commonwealth that there 

was no evidence that Jones had been wounded and, thus, that 

Jones was excluded as a possible source of the blood. On this 

ground, the trial court denied the motion. 

 Jury selection began on February 9, 1998 and continued the 

next day. Starr D. Christian, a 19-year-old black female, was 

called from the venire and questioned by the trial court and 

 

not challenge his convictions or sentences for these crimes in 

this appeal. 

2
counsel for the Commonwealth and Atkins. The trial court asked 

Christian if she or any member of her immediate family had “ever 

been the victim of a violent crime.” Christian responded in the 

negative. Atkins’ counsel subsequently asked Christian if she 

or any member of her immediate family had “ever been the victim 

of a crime, not just a violent crime, but a crime.” Christian 

responded that her brother’s car had been broken into on one 

occasion. Neither party challenged Christian for cause, and the 

trial court retained her in the venire for final jury selection. 

Thereafter, the Commonwealth used one of its four peremptory 

strikes to remove Christian from the jury. Code §19.2-262. 

Atkins asserted that Christian had been struck based upon her 

race in violation of the ruling in Batson v. Kentucky, 476 U.S. 

79, 89 (1986). 

 Responding to Atkins’ challenge, the Commonwealth initially 

asserted that it struck Christian because she was young and 

unmarried and, thus, would be less likely, in its view, to have 

empathy for the victim.2 The Commonwealth further noted that it 

had acquired information that, contrary to her testimony, 

 2

The Commonwealth also contended that Christian might lack 

empathy for the victim because she was not a parent, but 

subsequently conceded that Christian had not been questioned as 

to whether she had children or not. In addition, the 

Commonwealth conceded that it had discovered an offense report 

concerning an altercation between Christian and a relative that 

indicated that Christian possibly was a parent. 

3
Christian had been the victim of a grand larceny within the past 

year. The Commonwealth provided defense counsel with a copy of 

an offense report that listed Christian as the victim and 

complainant in the theft of a ring. Based upon this incident, 

the Commonwealth ultimately asserted Christian’s lack of 

truthfulness as its race-neutral reason for removing her from 

the jury. 

 Atkins contended that a peremptory strike premised on the 

age of the prospective juror might also “run[] afoul of the 

Batson ruling.” Atkins further contended that the Commonwealth 

gave “no indication nor were we told that there was a concern 

about [Christian’s] truthfulness” at the time she was examined. 

 Noting its express concern over “the apparent oversight or 

flagrant incorrect answer to the Court’s question and to 

counsel’s question relative to victims of a crime,” the trial 

court found that the Commonwealth had stated an adequate raceneutral reason for striking Christian from the jury. 

Accordingly, the trial court overruled Atkins’ Batson challenge. 

II.

EVIDENCE

A. Guilt Phase

 We will review the evidence in the light most favorable to 

the Commonwealth. Clagett v. Commonwealth, 252 Va. 79, 84, 472 

S.E.2d 263, 265 (1996), cert. denied, 519 U.S. 1122 (1997). On 

4
the afternoon of August 16, 1996, William A. Jones3 and Atkins 

were “drinking and smoking weed” at the home Atkins shared with 

his father. During the course of that afternoon, “[a] couple of 

[Atkins’] friends came by, in and out.” On several occasions 

during the afternoon and later that evening, those present 

pooled their money, and Atkins and Jones walked to a nearby 

convenience store to buy beer or were driven by one of Atkins’ 

friends to an ABC store to buy liquor. 

 That evening between 10:30 and 11:00 p.m., a friend of 

Atkins, known to Jones only as “Mark,” arrived at the home. 

Mark had brought a handgun with him and gave it to Atkins after 

Atkins said “that he wanted to use it, he would bring it back in 

the morning.” A short time later, Atkins and Jones again walked 

to the convenience store to buy beer. Atkins told Jones that he 

did not have enough money and was going to “panhandle and get 

some change up.” Atkins had the handgun he had borrowed from 

Mark tucked behind the waistband of his pants, partially 

concealed by his belt buckle. 

 While Jones waited, Atkins approached several people to ask 

for money and collected some from one or two. Nesbitt, who was 

a stranger to Atkins, arrived at the store in his truck at 

 3

Prior to Atkins’ trial, Jones entered into a plea agreement 

with the Commonwealth dated September 5, 1997, in which Jones 

agreed to testify against Atkins in exchange for a reduction in 

the charges against him arising out of the murder of Nesbitt. 

5
approximately 11:30 p.m. After a brief conversation with 

Atkins, Nesbitt went into the store. When Nesbitt returned to 

his truck and was preparing to leave the parking lot, Atkins 

“whistled” at him and Nesbitt stopped his truck. 

 Atkins went to the passenger’s side of the truck and Jones 

went to the driver’s side. Atkins then pointed the handgun at 

Nesbitt and ordered Nesbitt to “[m]ove over, let my friend 

drive.” Jones entered the truck from the driver’s side and 

Atkins entered from the passenger’s side. 

 As Jones drove the truck away from the convenience store, 

Atkins demanded that Nesbitt surrender his wallet. Atkins 

removed $60 from the wallet and was returning it to Nesbitt when 

he noticed a bankcard inside the wallet. On Atkins’ 

instruction, Jones drove to a branch of Crestar Bank where 

Atkins forced Nesbitt to withdraw $200 using the bankcard from 

the bank’s drive-through automatic teller machine. The security 

camera in this automatic teller machine recorded the truck 

arriving at the bank shortly after midnight on August 17, 1996. 

The videotape produced by the camera showed that Jones was 

driving, Atkins was in the passenger seat, and Nesbitt was 

between them. Nesbitt had to lean across Jones in order to 

operate the machine. During this entire time, Atkins kept the 

handgun pointed at Nesbitt. 

6
 Jones then drove to the parking lot of a nearby school 

where he and Atkins discussed what they should do with Nesbitt. 

Jones urged Atkins to “just tie him up so we can get away.” 

Atkins told Jones he knew of a place near his grandfather’s 

house in Yorktown where they could leave Nesbitt and directed 

Jones to drive toward Yorktown on Interstate 64. Nesbitt asked 

them “just don’t hurt me” and made no attempt to escape. 

 Upon arriving in a secluded area of York County off the Lee 

Hall exit of Interstate 64, Atkins exited the truck and ordered 

Nesbitt to do the same. “Nesbitt stepped out of the vehicle and 

probably took two steps” when Atkins began shooting him. Jones 

attempted to exit the truck because he feared that some of the 

shots were “coming in the truck.” Unable to open the driver’s 

side door, Jones rolled down the driver’s side window and 

“jumped” out of the truck. 

 Jones began to struggle with Atkins for the handgun and 

Atkins was shot in the leg during that struggle. After Jones 

obtained the handgun, he drove Atkins to the emergency room of a 

local hospital, leaving Nesbitt’s dead body at the scene of the 

shooting. Outside the emergency room, Jones asked Atkins for 

some of the money that had been taken from Nesbitt and then 

drove away alone in Nesbitt’s truck. 

 After leaving Atkins at the emergency room, Jones drove to 

a motel in Newport News where he abandoned Nesbitt’s truck. 

7
Jones spent the next several days moving from motel to motel. 

He cut his hair in an attempt to disguise his appearance. Jones 

subsequently returned to the first motel, where police, who 

previously had discovered the abandoned truck at the motel and 

were maintaining a surveillance of the area, arrested him. The 

handgun was not found in the truck and was never recovered. 

 Garland S. Clay discovered Nesbitt’s body at the crime 

scene sometime after 3:45 a.m. on August 17, 1996 and contacted 

police. Investigator Frederick T. Lyons, a member of the major 

crimes section of the York County Sheriff’s Office, arrived at 

the crime scene at 5:15 a.m. 

 Lyons discovered six shell casings near Nesbitt’s body. 

After determining that Nesbitt had an account at Crestar Bank, 

Lyons learned that two withdrawals from the account had been 

made at Crestar automatic teller machines the previous night, 

one for $60 and one for $200. Lyons obtained still photographs 

and the videotapes from the automatic teller machines’ security 

cameras and distributed copies to local police and media. 

 After the media broadcast the photographs, several callers 

to a “crime line phone number” identified Jones as the driver of 

Nesbitt’s truck. One caller told police that “a person that Mr. 

Jones runs with was a Daryl Atkins.” Based upon these 

identifications, Lyons obtained an arrest warrant for Jones. 

After interviewing Jones’ father and the father’s girlfriend, 

8
Lyons “learned that Mr. Atkins was with William Jones,” and 

obtained Atkins’ address. Finding Atkins at home, Lyons was 

able to identify Atkins from the security camera photographs and 

placed him under arrest. 

 Dr. Leah L. E. Bush, an Assistant Chief Medical Examiner 

for the Commonwealth, performed an autopsy on Nesbitt’s body. 

This autopsy revealed that Nesbitt had sustained eight separate 

gunshot wounds to the thorax, chest, abdomen, arms and legs. 

Several of the bullets exited and reentered the body. Three of 

the gunshot wounds were lethal. However, Nesbitt could have 

lived for several minutes before “the bleeding was to the point 

where his blood pressure would not support consciousness and 

life.” Three bullets were recovered during the autopsy. 

 Additional forensic evidence showed that the six shell 

casings recovered from the crime scene had all been fired from 

the same weapon, as were the three bullets recovered from 

Nesbitt’s body, a bullet recovered from Nesbitt’s truck, and a 

bullet recovered from Atkins’ leg. Bloodstains found on the 

passenger seat and interior passenger side door of Nesbitt’s 

truck were identified as consistent with either Nesbitt’s or 

Atkins’ blood types. None of the tested samples was identified 

as likely to have come from another source. 

 Subsequent to his arrest and prior to his trial, while an 

inmate in the York County jail, Atkins shared a cell with 

9
Stephen R. Burton. According to Burton, Atkins told him “[t]hat 

he had put a boy out of a truck in York County, that he had shot 

at a boy to scare him.” Atkins told Burton that he was not 

worried about being convicted because the police “wouldn’t find 

the weapon . . . they didn’t have the weapon, the only thing 

they had on him was a picture holding a gun to a boy” at the 

automatic teller machine. Atkins also told Burton that he had 

shot himself in the leg, but that he could not remember it 

because he was “too messed up” on drugs and alcohol to realize 

it. 

 Atkins testified on his own behalf and was the only defense 

witness on the issue of guilt. Atkins’ account of the robbery 

and murder was in direct conflict with that of Jones. According 

to Atkins, he and Jones had gone to the convenience store with 

the intent to rob someone, and it was Jones who was armed and 

who initiated the contact with Nesbitt. Atkins maintained that 

Jones forced his way into Nesbitt’s truck, and then gave the 

handgun to Atkins so that Jones could drive. Atkins admitted 

taking money from Nesbitt’s wallet and forcing Nesbitt to 

withdraw money from the automatic teller machine. 

 Atkins further maintained that Jones said “he know [(sic)] 

a place and he never told me” where they could take Nesbitt and 

“tie him up.” After leaving the interstate, according to 

Atkins, Jones stopped the truck, took the handgun back from 

10
Atkins, placed it in a holster on his belt, and directed Atkins 

and Nesbitt to change places so that Nesbitt was sitting by the 

passenger door. Jones then drove “a little more” and then 

exited the truck and ordered Nesbitt to get out of the truck as 

well. With regard to the critical issue of who was the 

“triggerman” in the murder of Nesbitt, Atkins maintained that 

Jones shot Nesbitt several times and that one of the shots 

struck Atkins in the leg. 

 The jury was instructed and heard closing arguments from 

counsel. After its deliberations, the jury returned verdicts 

convicting Atkins of capital murder and the associated firearm 

crime. 

B. Penalty Phase

 The Commonwealth sought the imposition of the death penalty 

based on the aggravating factors of future dangerousness and 

vileness. Code § 19.2-264.2. During the penalty phase, to 

prove future dangerousness, the Commonwealth presented evidence 

of Atkins’ prior felony convictions, which included robbing and 

maiming, the testimony of several victims of prior robberies and 

assaults committed by Atkins, and victim impact testimony from 

Nesbitt’s mother. After concluding the presentation of this 

evidence, the Commonwealth rested, and Atkins made a motion to 

strike the Commonwealth’s evidence as to the aggravating factor 

of vileness on the ground that no evidence presented in the 

11
penalty phase would support such a finding. Code § 19.2-

264.4(C). Over Atkins’ objection, the trial court permitted the 

Commonwealth to reopen its case in order to have the exhibits 

introduced during the guilt phase included in the evidence to be 

considered in the penalty phase. Those exhibits included 

pictures of Nesbitt’s body, the autopsy report, and other items. 

 Atkins presented the testimony of Dr. Evan Stuart Nelson, a 

forensic psychologist. Dr. Nelson testified that Atkins’ full 

scale IQ is 59 with a verbal IQ of 64 and a performance IQ of 

60.4 Based on these scores, Dr. Nelson stated that Atkins “falls 

in the range of being mildly mentally retarded.” Dr. Nelson 

concluded that, based on Atkins’ prior behavior while 

incarcerated, there was a “very high likelihood” that Atkins 

would not be “violent within the prison” if given a life 

sentence. 

 On cross-examination, Dr. Nelson conceded that he “did not 

find a reason to raise a concern to the Court or counsel about 

[Atkins’] competency” to stand trial. In addition, Dr. Nelson 

concluded from the data available to him that “there were no 

indications that [Atkins] could not appreciate the nature of his 

behaviors and control himself.” 

 4

Dr. Nelson explained that “the full scale IQ score is not a 

simple mathematical average between 64 and 60. It’s actually 

putting all of the items back together, charting out a graph of 

the scores and then figuring out where people stand.” 

12
 After all the evidence relating to the penalty phase had 

been received, the trial court and counsel considered jury 

instructions and the verdict form. The trial court granted the 

Commonwealth’s first instruction which properly detailed the 

necessity of the jury finding that either one or both of the 

statutory aggravating factors of future dangerousness and 

vileness were proven beyond a reasonable doubt before it could 

impose the death penalty. It further provided that the jury 

could nonetheless impose a sentence of imprisonment for life or 

a sentence of imprisonment for life and a fine if “the death 

penalty is not justified.” Finally, this instruction properly 

directed the jury that if the Commonwealth failed to prove 

beyond a reasonable doubt at least one of the aggravating 

factors of future dangerousness or vileness, then it was 

required to impose a sentence of imprisonment for life or a 

sentence of imprisonment for life and a fine. 

 The Commonwealth’s second instruction defined “imprisonment 

for life” to mean “life without possibility of parole.” The 

Commonwealth’s third instruction detailed the possible sentences 

for the firearm crime. The trial court granted both of these 

instructions. 

 The Commonwealth proffered an instruction on mitigating 

circumstances. Atkins’ counsel expressly stated that he did not 

want the trial court to give this instruction, and the 

13
Commonwealth withdrew it. Atkins did not proffer an alternative 

instruction on mitigating circumstances and raised no objection 

to the absence of an express instruction on mitigation. 

 During the discussion of the instructions, several 

references were made to the proposed jury verdict forms. At 

that time, the Commonwealth advised the trial court that it was 

in the process of redrafting its proposed verdict form because 

“there was a revision that [Atkins’ counsel] wanted [the 

Commonwealth] to make” in that verdict form. Atkins’ counsel 

responded, “[U]nless [the Commonwealth has] done a major 

redraft, I prefer mine which gives the jury every option. [The 

Commonwealth’s], from what I saw, was . . . limited to death.” 

The trial court then stated, “Well, they obviously have the 

option of life.” 

 A short time later, the Commonwealth’s redrafted verdict 

form was given to the trial court and Atkins’ counsel. 

Referring to this form, the Commonwealth stated, “Ours are the 

same as the Defense’s, Judge. They are both Model 

Instructions.” 

 Atkins’ proposed verdict form contained seven alternative 

findings. The first six of these, in order, permitted the jury 

to impose either a sentence of death or one of imprisonment for 

life and a fine if it found that both aggravating factors were 

proven, if it found future dangerousness alone was proven, or if 

14
it found vileness alone was proven. The seventh finding on 

Atkins’ form permitted the jury to impose only a sentence of 

life imprisonment and a fine if neither aggravating factor was 

found to have been proven beyond a reasonable doubt. 

 The Commonwealth’s proposed verdict form contained six 

alternative findings corresponding, although in a different 

order, with the first six alternative findings on Atkins’ 

proposed form. It did not provide a finding permitting the jury 

to impose only a life sentence and fine if neither aggravating 

factor was found to have been proven beyond a reasonable doubt. 

 After the instructions were agreed upon, the trial court 

reviewed the two sets of proposed verdict forms and stated, 

“Either is okay with the Court. I think they both say the same 

thing, identically the same thing.” Atkins’ counsel responded, 

“Pretty close the same thing.” The Commonwealth then stated 

that the findings in its form were merely listed in a different 

order from that of the defense’s form. The Commonwealth 

asserted that the order of its form, giving options for death 

and life imprisonment verdicts based on the individual 

aggravating factors and then the option for a verdict premised 

on both factors being present was more appropriate. The trial 

court accepted the Commonwealth’s proposed verdict form. Atkins 

did not object to the content of the Commonwealth’s verdict form 

15
at the time it was adopted by the trial court or when it was 

subsequently read to the jury. 

 In closing argument, Atkins’ counsel made brief references 

to Atkins’ low intelligence, and urged the jury to impose a 

sentence of life without possibility of parole rather than a 

death sentence. Counsel argued that a life sentence would be 

appropriate, based on Dr. Nelson’s opinion that Atkins would be 

able to exercise some level of self-control within the 

structured environment of prison. 

 The jury found that Atkins both represented a future danger 

to society and that the murder of Nesbitt had been outrageously 

or wantonly vile. Based upon its finding of these aggravating 

factors, the jury returned a verdict imposing a sentence of 

death on Atkins for the murder of Nesbitt. 

C. Sentencing Hearing

 At sentencing, Atkins’ counsel objected for the first time 

to the failure of the verdict form to include a finding 

permitting the jury to impose only a life sentence and fine if 

it found that neither aggravating factor was proven beyond a 

reasonable doubt. Counsel made a motion to set aside the jury’s 

verdict imposing the death penalty. The trial court ruled that 

the objection was not timely, and further noted that the 

evidence was adequate to support the jury’s findings of future 

dangerousness and vileness, precluding the possibility of it 

16
imposing the mandatory sentence of life imprisonment in the 

absence of such factors. The trial court then confirmed the 

jury’s verdict and sentenced Atkins to death. This appeal 

followed. 

III.

DISCUSSION

 We begin by noting that Atkins has modified the order and 

phrasing of his assignments of error in his opening brief from 

those originally designated by him under Rule 5:22(b). In our 

discussion, we shall refer only to the 19 original assignments 

of error as listed by Atkins in the Rule 5:22(b) designation.5 

Sheppard v. Commonwealth, 250 Va. 379, 385-86, 464 S.E.2d 131, 

135 (1995), cert. denied, 517 U.S. 1110 (1996). Atkins has not 

briefed or argued assignments of error 9, 13, and 20 and, thus, 

we will not consider them. Id. at 386, 464 S.E.2d at 135. 

A. Issues Previously Decided

 In assignments of error 3, 4, 5, 6, 7, and 8, Atkins raises 

various challenges to the constitutionality of the Virginia 

capital murder statute and the statutory scheme under which 

capital murder trials are conducted and death sentences are 

reviewed on appeal. In addition, in assignment of error 12, 

Atkins asserts the general proposition that “the Virginia Death 

 5

In the Rule 5:22(b) designation, the assignments of error 

are numbered from 1 to 20, but there is no assignment of error 

numbered 18. 

17
Penalty Statutes Violate the Virginia and United States 

Constitutions.” On brief, Atkins does not make a particularized 

argument relevant to assignment of error 12, but simply 

identifies it as being subsumed within the argument of his other 

constitutional challenges. The arguments raised in these 

assignments of error, which in several instances are 

overlapping, have been thoroughly addressed and rejected in 

numerous prior capital murder cases.6 We find no reason to 

modify our previously expressed views on these issues. 

 Atkins further assigns error to the trial court’s failure 

to grant him additional peremptory strikes during jury 

selection. See Code § 19.2-262. We have repeatedly held that 

there is no right to additional peremptory challenges in a 

 6

See, e.g., Barnabei v. Commonwealth, 252 Va. 161, 178-79, 

477 S.E.2d 270, 280 (1996), cert. denied, 520 U.S. 1224 (1997) 

(aggravating factors of future dangerousness and vileness are 

not unconstitutionally vague); Joseph v. Commonwealth, 249 Va. 

78, 82, 452 S.E.2d 862, 865, cert. denied, 516 U.S. 997 

(1995)(death penalty does not constitute cruel and unusual 

punishment; appellate review process does not deprive defendant 

of statutory rights and due process of law); Breard v. 

Commonwealth, 248 Va. 68, 74, 445 S.E.2d 670, 675, cert. denied, 

513 U.S. 971 (1994)(method of instructing jury on mitigation 

does not impermissibly interfere with jury’s consideration of 

evidence offered in mitigation); Stewart v. Commonwealth, 245 

Va. 222, 229, 427 S.E.2d 394, 400, cert. denied, 510 U.S. 848 

(1993)(proof of future dangerousness by prior criminal 

convictions does not violate double jeopardy); Smith v. 

Commonwealth, 219 Va. 455, 476-77, 248 S.E.2d 135, 148 (1978), 

cert. denied, 441 U.S. 967 (1979)(“vileness” and 

“dangerousness” predicates for imposition of the death penalty 

do not impermissibly fail to guide the jury’s discretion). 

18
capital murder trial. See, e.g., Strickler v. Commonwealth, 241 

Va. 482, 489, 404 S.E.2d 227, 232, cert. denied, 502 U.S. 944 

(1991). 

B. Request for Blood Sample

 Atkins assigns error to the trial court’s denial of his 

motion in limine to have a blood sample taken from Jones or in 

the alternative limiting the Commonwealth’s presentation of the 

results of DNA testing of the blood found at the scene of the 

murder. Atkins contends that in doing so, the trial court 

interfered with his “right to call evidence in his favor.” We 

disagree. 

 In arguing his motion, Atkins conceded that there was no 

evidence to suggest that Jones was a potential source of any of 

the blood evidence recovered from the crime scene. The evidence 

at trial showed that each of the blood samples could almost 

certainly be linked to either Nesbitt or Atkins. Therefore, 

Atkins’ request that a sample of Jones’ blood be taken for DNA 

comparison to the blood found at the crime scene was not founded 

on any reasonable claim that it was necessary to his defense. 

See O’Dell v. Commonwealth, 234 Va. 672, 686, 364 S.E.2d 491, 

499, cert. denied, 488 U.S. 871 (1988). Moreover, Atkins cannot 

demonstrate that the failure to make that evidence available to 

him was materially prejudicial to the presentation of his theory 

19
of the case. See Satcher v. Commonwealth, 244 Va. 220, 244-45, 

421 S.E.2d 821, 836 (1992), cert. denied, 507 U.S. 933 (1993). 

C. Batson Challenge

 Atkins contends that the trial court erred in overruling 

his Batson challenge to the Commonwealth’s peremptory strike of 

Christian. While making only a cursory argument on this issue 

on brief, during oral argument of this appeal Atkins’ counsel 

asserted that the Commonwealth’s proffer of the offense report 

was insufficient to establish that Christian had actually been 

the victim of a crime and, thus, that it would not support the 

Commonwealth’s contention that Christian had failed to answer 

the trial court’s and counsel’s questions truthfully. 

 In Batson, the United States Supreme Court held that 

purposeful discrimination based on race in selecting jurors 

violates the Equal Protection Clause. Batson, 476 U.S. at 89. 

If an accused makes a prima facie showing of the prosecution’s 

use of peremptory strikes on the basis of race, the burden 

shifts to the prosecution to articulate race-neutral reasons for 

such strikes. Chichester v. Commonwealth, 248 Va. 311, 323, 448 

S.E.2d 638, 646 (1994), cert. denied, 513 U.S. 1166 (1995). On 

appeal, we will assume, without deciding, that Atkins made a 

prima facie showing of a discriminatory strike. Thus, we 

consider whether the trial court abused its discretion in 

accepting the Commonwealth’s articulated race-neutral reason for 

20
striking the prospective juror. A trial court’s determination 

whether the reason given is race-neutral is entitled to great 

deference, Spencer v. Commonwealth, 238 Va. 295, 310, 384 S.E.2d 

785, 795 (1989), cert. denied, 493 U.S. 1093 (1990), and will 

not be reversed on appeal unless it is “clearly erroneous.” 

Hernandez v. New York, 500 U.S. 352, 369 (1991). 

 There is no merit to Atkins’ contention on this issue. The 

trial court was not required to determine whether the criminal 

complaint filed by Christian would ultimately prove sufficient 

to establish that she had actually been the victim of a crime. 

Nor was the Commonwealth required to show that Christian could 

have been struck for cause. Rather, the Commonwealth’s burden 

was to show that it had a sufficient race-neutral reason for 

using one of its peremptory strikes in removing Christian from 

the jury. At the time the Commonwealth exercised this 

peremptory strike, it had a sufficient subjective basis for 

questioning Christian’s truthfulness. The trial court accepted 

the Commonwealth’s stated basis for its action, and that 

decision is clearly supported by the record. 

D. Admission of Atkins’ Statement to Police

 On August 21, 1996, Atkins voluntarily gave a statement to 

Investigator Lyons in which Atkins admitted his participation in 

the abduction, robbery, and murder of Nesbitt. In that 

statement, however, Atkins denied that he had been the 

21
“triggerman” and asserted that Jones alone had shot Nesbitt. At 

trial, during cross-examination of Lyons, Atkins’ counsel 

attempted to elicit testimony from Lyons that Atkins’ statement 

contained this denial and assertion. The Commonwealth objected 

on the ground that, while the statement inculpated Atkins as a 

participant in these crimes, Atkins’ denial that he was the 

“triggerman” was self-serving and inadmissible hearsay. The 

trial court ultimately sustained that objection and cautioned 

the jury to disregard any reference to this statement. 

 Subsequently during his testimony, Atkins was permitted to 

reference the content of this statement in great detail. 

Significantly, Atkins testified that in his prior statement he 

“told them that William Jones pulled the trigger.” Consistent 

with that assertion, Atkins further testified that he did not 

“shoot a gun” on the night of the murder and that Jones had shot 

Nesbitt. 

 On brief, Atkins asserts only that “Mr. Atkins’ statement 

to the [police] should have been admitted as an exception to the 

hearsay rule under the statement against penal interest 

exception.” This assertion simply ignores the fact that the 

statement was ultimately admitted in conjunction with Atkins’ 

testimony, and that the jury clearly had the benefit of Atkins’ 

prior consistent assertion to bolster his trial testimony that 

he was not the triggerman. Thus, no prejudice resulted to 

22
Atkins. Moreover, there is no merit to Atkins’ assertion that 

his prior statement should have been admitted during Lyons’ 

testimony. 

 At the time of Lyons’ testimony, Atkins had not testified 

and the limited circumstances in which a prior consistent 

statement is admissible were not applicable. See Manetta v. 

Commonwealth, 231 Va. 123, 128 n.3, 340 S.E.2d 828, 831, n.3 

(1986). Atkins’ prior consistent statement on the triggerman 

issue provided no basis to impeach the testimony of Lyons 

because Lyons was not the declarant or otherwise bound by the 

statement. Nor could the statement have been admitted as being 

against penal interest, since Atkins, the declarant, was not 

“unavailable” to testify at trial, which is a prerequisite to 

invoke that exception to the hearsay rule. Ellison v. 

Commonwealth, 219 Va. 404, 408, 247 S.E.2d 685, 688 (1978) 

E. Sufficiency of the Evidence

 Atkins contends that the trial court erred in failing to 

set aside the jury’s verdict convicting him of capital murder 

because the evidence failed to establish beyond a reasonable 

doubt that he was the triggerman in the killing of Nesbitt. On 

brief, Atkins candidly states that “[t]his case comes down to 

the testimony of Mr. William A. Jones and Stephen R. Burton 

against the testimony of Mr. Atkins.” During oral argument of 

this appeal, Atkins’ counsel conceded that, to find error in the 

23
trial court’s action, this Court would be required to reweigh 

the evidence and make determinations as to the credibility of 

the witnesses and their testimony. 

 “[T]he credibility of witnesses and the weight to be 

accorded their testimony are questions for the fact finder.” 

Saunders v. Commonwealth, 242 Va. 107, 113, 406 S.E.2d 39, 42, 

cert. denied, 502 U.S. 944 (1991). Where the jury has seen and 

heard the witnesses and assessed their credibility and the 

weight of their testimony, its determination of the facts will 

not be overturned on appeal unless it is plainly wrong or 

without evidence to support it. Code § 8.01-680. 

 Thus, while Atkins may selectively craft an interpretation 

of the evidence to fit his claims of innocence, and attack the 

credibility and motivation of Jones and Burton, the trial court, 

and this Court on appeal, may not substitute its own judgment 

for that of the jury where a reasonable interpretation of the 

evidence supports the verdict. Here, the evidence when viewed 

in its entirety supports the jury’s determination that, beyond a 

reasonable doubt, Atkins was directly responsible for Nesbitt’s 

death and that Atkins was the triggerman. Accordingly, the 

trial court did not err in refusing to set aside the conviction 

for capital murder. 

24
F. The Verdict Form7

 Atkins asserts that the jury was not properly “instructed” 

during the penalty phase because the verdict form failed to 

provide the jury with the option of sentencing Atkins to life 

imprisonment upon a finding that neither of the aggravating 

factors of future dangerousness or vileness was proven beyond a 

reasonable doubt. We agree. 

 It is a well established rule that under normal 

circumstances a trial court is under no obligation to amend or 

correct an instruction that contains a misstatement of law. 

However, “when the principle of law is materially vital to [the] 

defendant in a criminal case, it is reversible error for the 

 7

This issue was raised in assignment of error 19, which 

asserts errors in the instruction of the jury in both the guilt 

phase with respect to accomplice testimony, and in the penalty 

phase on the issue discussed herein. During oral argument of 

this appeal, Atkins’ counsel conceded that he had not proffered 

an instruction on accomplice testimony at the conclusion of the 

guilt phase or objected to the trial court’s failure to give 

such an instruction sua sponte and, thus, that the issue was not 

properly preserved for appeal. Rule 5:25. 

In addition, the Commonwealth asserts on brief that 

assignment of error 19 is inadequate to encompass a challenge to 

the verdict form because a verdict form is not an “instruction” 

to the jury, but is merely a tool to aid the jury in rendering 

its verdict. However, during discussion of this issue at trial, 

the trial court, the Commonwealth, and Atkins’ counsel used the 

terms “verdict form,” “finding form,” and “finding instructions” 

interchangeably. Moreover, in this context, the term 

“instruction” is sufficiently broad to cover any statement of 

the law given by the trial court to the jury, which would 

necessarily include the written verdict form required by Code 

§ 19.2-264.4(D). 

25
trial court to refuse a defective instruction instead of 

correcting it and giving it in the proper form.” Whaley v. 

Commonwealth, 214 Va. 353, 355-56, 200 S.E.2d 556, 558 (1973); 

accord Bryant v. Commonwealth, 216 Va. 390, 392-93, 219 S.E.2d 

669, 671-72 (1975). Clearly, it is materially vital to the 

defendant in a criminal case that the jury have a proper verdict 

form. Moreover, Atkins submitted a proper verdict form, as 

required by Code § 19.2-264.4(D) and, thus, there can be no 

question that the trial court, while having the discretion to 

elect between the two forms proffered to it, had the duty to 

give the jury a proper verdict form. It was the Commonwealth’s 

verdict form that was erroneous and, thus, when the trial court 

accepted the Commonwealth’s assertion that the order of 

sentencing options in its form was preferable, it was the 

Commonwealth, and not Atkins, that placed the trial court in the 

position of erring when it failed to correct the omission in the 

Commonwealth’s form.8

 8

We note further that, while not raising a precise objection 

to the Commonwealth’s proposed verdict form at the time it was 

selected by the trial court, Atkins’ counsel consistently stated 

his preference for the form he had submitted to the trial court. 

Cf. Pilot Life Insurance Co. v. Karcher, 217 Va. 497, 498, 229 

S.E.2d 884, 885 (1976)(where a party proffers an alternative 

instruction that is a correct statement of the law, this, 

without more, will be adequate to preserve for appeal a 

challenge to the instruction actually given). 

26
In the present case, the Commonwealth represented to both 

the trial court and Atkins’ counsel that its proposed verdict 

form was “the same as the Defense’s” except that the alternative 

findings varied in order. This simply was not accurate. The 

Commonwealth’s form contained no alternative finding permitting 

the jury to impose only a life sentence if neither future 

dangerousness nor vileness had been proven beyond a reasonable 

doubt. Thus, each of the Commonwealth’s alternative verdicts 

required the jury to find at least one of the aggravating 

factors to have been present before imposing a sentence of 

either death or life imprisonment. Although neither the trial 

court nor Atkins’ counsel noted the discrepancy between the 

Commonwealth’s proposed verdict form and Atkins’ form, Atkins’ 

counsel was entitled to rely upon the Commonwealth’s 

representation that there was no discrepancy between the forms 

and it had merely varied the order of the findings from that in 

Atkins’ form. 

The trial court’s use of the Commonwealth’s form resulted 

in the jury receiving a verdict form which was incomplete and 

which did not comport with the correct statement of law given to 

the jury by the trial court in its first instruction. We need 

go no further in our analysis to determine whether the jury in 

fact was left with the impression, contrary to the trial court’s 

instruction, that it was required first to find that at least 

27
one of the aggravating factors was present. The jury was 

presented with a confusing situation in which the trial court’s 

instructions and the form the jury was given to use in 

discharging its obligations were in conflict. 

For these reasons, we will set aside the sentence of death 

imposed by the jury and remand the case to the trial court for a 

new penalty proceeding. 

G. Reopening of Commonwealth’s Case in the Penalty Phase 

 Asserting that the Commonwealth failed to introduce any 

evidence of vileness prior to resting its case during the 

penalty phase, Atkins contends that the trial court erred in 

failing to strike the Commonwealth’s evidence as to that 

aggravating factor and instead permitting the Commonwealth to 

reopen its case in order to reintroduce the exhibits used in the 

guilt phase to establish the vileness of the crime. Because of 

the ultimate disposition we make in this appeal, this issue is 

moot. We note, however, that because Code § 19.2-264.4(B) 

requires that the sentencing jury consider “the circumstances 

surrounding the offense” in determining punishment, the 

Commonwealth will be permitted to reintroduce such evidence on 

remand as is relevant to prove the existence of either 

aggravating factor. 

28
H. Statutory Review of Death Penalty

 Because we have determined that there was reversible error 

in the penalty phase of Atkins’ trial which will necessitate a 

remand to the trial court, we need not consider at this time 

“[w]hether the sentence of death was imposed under the influence 

of passion, prejudice or any other arbitrary factor” and 

“[w]hether the sentence of death is excessive or 

disproportionate to the penalty imposed in similar cases, 

considering both the crime and the defendant.” Code § 17.1-313.9 

IV.

CONCLUSION

 For the reasons stated, we find no reversible error in the 

guilt phase of Atkins’ trial, and, accordingly, we will affirm 

Atkins’ conviction for capital murder. Because there was error 

in the penalty phase of the trial with respect to the imposition 

of the death penalty, we will reverse the sentence of death and 

remand the case to the trial court for a new penalty proceeding 

on the capital murder conviction. 

Affirmed in part,

reversed in part,

 and remanded. 

 9

Title 17.1 superseded former Title 17 effective October 1, 

1998 and prior to the argument of this appeal. The current 

statute, Code § 17.1-313, provides for review by this Court in 

the same manner as the now superseded provisions of Code § 17-

110.1, the statute under which the parties briefed the appeal. 

29