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      The January 8, 1999 opinion was withdrawn when a petition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 race-

neutral 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. Jones 3 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 Form 7

     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.



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