Number of victims: 2
Date of murder:
1996 / June 18, 1997
Date of birth: July
Victims profile: Stanley Beale,
34 / Clarence Elwood Threat, 36
Method of murder:
Location: Henrico County, Virginia, USA
by lethal injection in Virginia on May 20,
Stanley Beale lived with his family in the University Terrace Apartments.
One evening in 1996 a man with a handgun kicked in the front door and
yelled at Beale, "Where is he? What you keep coming up to my door, what
you looking for me for?" Stanley answered that he did not know the man,
but he shot Beale three times resulting in his death. Beles 13 year old
daughter and Catherine Taylor both identified Walker as the man who shot
In 1997, Andrea Noble and Clarence Threat were
sleeping in their bedroom when they were awakened noise at the front
door but saw noone. After the third knock, the door was kicked and
Andrea saw a person she knew as "Paul" standing with a gun. "Paul"
pointed the gun at her as she backed into the bedroom. When they reached
the bedroom, "Paul" hit Ahdrea with the back of the gun and then shot
Clarence a total of seven times, resulting in his death. The man told
Andrea that if she told anyone he would come back and kill her and her
Walker v. Commonwealth, 258 Va. 54, 515 S.E.2d 565 (Va. 1999) (Direct
Walker v. Kelly, 593 F.3d 319 (4th Cir. 2010) (Habeas).
"Last words being: I don't think y'all done this right, took y'all too
long to hook it up. You can print that. That's it."
for two RVA murders
By Frank Green - Richmond Times-Dispatch
May 21, 2010
JARRATT -- Darick Demorris Walker was executed by
injection last night for the separate killings of two Richmond men.
Walker, 37, was pronounced dead at 9:24 p.m., said Larry Traylor,
spokesman for the Virginia Department of Corrections. It was the second
execution in the state this year and the 107th since the U.S. Supreme
Court allowed executions to resume in 1976.
At 8:55 p.m., Walker, a tall man wearing sandals and
blue prison clothing, was escorted into the death chamber by officers.
He was cooperative and appeared calm as he looked around the room and
toward the viewing area, where the witnesses included one of his
attorneys, Danielle Spinelli. He was strapped to a gurney, and a curtain
was pulled to block the view of witnesses while the intravenous lines
were attached to his arms.
The curtain was opened again at 9:15 p.m. Asked
whether he had a last statement, Walker said, "Last words being: I don't
think y'all done this right, took y'all too long to hook it up. You can
print that. That's it." Traylor later explained that there was a delay
in placing one of the IV lines.
The first of three chemicals used in the execution
began flowing. Walker took several deep breaths, his breathing grew
shallow, and then it stopped. He was pronounced dead at 9:24 p.m., and
the curtain was drawn again.
Outside the Greensville Correctional Center where the
execution took place, four death-penalty protesters stood in silence,
holding candles. They declined to comment.
State law permits the death penalty for someone who
commits two premeditated murders within three years. Testimony and other
evidence at his 1998 trial showed Walker shot two men to death in front
of loved ones. Stanley Beale, 36, was killed on the night of Nov. 22,
1996, and Clarence Elwood Threat, 34, early the morning of June 19,
1997. Each man was shot repeatedly by a gunman who kicked in their
Gov. Bob McDonnell declined to intervene last week,
and yesterday evening the U.S. Supreme Court turned down his appeals and
request for a stay of execution. Supreme Court spokeswoman Patricia
Estrada noted that three justices -- John Paul Stevens, Ruth Bader
Ginsburg and Sonia Sotomayor -- would have granted a stay of execution.
Reached by telephone yesterday before the execution,
Alice Threat-Skipper, Threat's mother, said she never has gotten over
the crime. "It's been a long, hard 12 years," she said. She said she
learned her son had died in an early-morning telephone call from a
relative of Threat's girlfriend. Threat-Skipper said her late son, a
graduate of George Wythe High School, was raised in Richmond and was one
of six children. As a child, he enjoyed playing baseball and bowling. As
an adult, he had a good job and helped care for two children, she said.
Though she did not wish to stop the execution, Threat-Skipper said she
does not believe in capital punishment and would have been satisfied had
Walker been sentenced to prison without the possibility of parole so he
could not harm anyone else. Beale's family could not be reached for
In the Beale slaying, Walker broke into the apartment
and accused Beale of coming to his door to look for him. Beale did not
know Walker. Threat's girlfriend said Walker once had asked her for a
date but said she turned him down because she was committed to Threat.
Walker's lawyers had argued that he was mentally
retarded and therefore ineligible for the death penalty. A split panel
of the 4th U.S. Circuit Court of Appeals ruled that Walker had not
proved that he fit the legal definition for mental retardation. They
also contended that authorities improperly withheld evidence that could
have challenged the credibility of a key witness. They said Beale's then-13-year-old
daughter originally told police she heard but did not see the shooter
but testified later she saw Walker shoot her father. Walker's lawyers
did not learn of the girl's earlier statement until after the trial.
A social history prepared on Walker's behalf in 2003,
when he was 30, said he functioned at the level of an 11-year-old; that
he may have suffered from fetal alcohol syndrome; and that he had a
family history of mental illness and mental retardation. Traylor said
Walker visited with immediate family members yesterday.
Va. man who killed two is executed
By Dena Potter - PilotOnline.com
Associated Press - May 21, 2010
JARRATT - A Virginia inmate was executed Thursday for
killing two men in front of their families in separate shootings. Darick
Demorris Walker, 37, died by injection at 9:24 p.m. at Greensville
Correctional Center for the shooting deaths of Stanley Beale in 1996 and
Clarence Elwood Threat in 1997. Virginia law allows the death penalty
for anyone who commits two premeditated murders within three years.
When asked for his last words, Walker referred to the
extra time it took to insert one of the two intravenous lines in his
arms: "Last words being: I don't think y'all done this right, took y'all
too long to hook it up. You can print that. That's it." Corrections
spokesman Larry Traylor acknowledged that prison officials had
difficulty getting one of the IVs started, but said there were no other
problems. There were no visible problems with the injection. Once the
drugs started, he took about four deep breaths and then some shorter
breaths before being declared dead about four minutes later.
The U.S. Supreme Court waited until about two hours
before the execution to refuse to take up Walker's two appeals. Gov. Bob
McDonnell refused to block the execution days earlier. Walker's
attorneys claimed he was mentally unfit for capital punishment and that
prosecutors withheld evidence casting doubt on eyewitness testimony at
Witnesses testified that Walker kicked in the door to
the apartment where Beale lived with his three children and their mother
on Nov. 22, 1996, pointed a gun at him and asked why Beale kept coming
to his house looking for him. Beale told Walker he didn't know him and
Walker shot him three times.
In the other shooting on June 18, 1997, Threat and
his girlfriend, Andrea Noble, were sleeping in their bedroom when Walker
kicked open the door and shot Threat seven times as Noble's children
screamed and cried in their bedrooms.
In each case, the victims knew Walker by a different
name. Beale's 13-year-old daughter, Bianca Taylor, testified that she
knew Walker from their Richmond neighborhood as "Todd." She said she saw
him bust in and shoot her father before her mother ushered her into a
bathroom to hide. Noble told police she knew Walker as "Paul," and that
she recently had turned down a date invitation from him. At trial,
another woman testified that Walker robbed her, but she knew him as "Ty."
Reached by phone, Noble refused to comment. Working
numbers for Beale's family could not be located. None of the victims'
family members witnessed the execution, said Traylor.
Walker met with members of his immediate family
Thursday, Traylor said. Condemned inmates' families are not allowed to
Walker was the 107th inmate put to death in Virginia
since the U.S. Supreme Court reinstated capital punishment in 1976. Only
Texas has executed more prisoners.
Virginia executes inmate who killed 2 men
By Dena Potter - The Washington Post
Associated Press - May 20, 2010
JARRATT, Va. -- A Virginia inmate who killed two
Richmond men in separate shootings has been executed. Thirty-seven-year-old
Darick Demorris Walker died by injection at 9:24 p.m. Thursday at
Greensville Correctional Center in Jarratt.
Walker was convicted of killing Stanley Beale in 1996
and Clarence Elwood Threat in 1997. Virginia law allows the death
penalty for anyone who commits two premeditated murders within three
The U.S. Supreme Court refused to block Walker's
execution Thursday, days after Gov. Bob McDonnell said he found no
compelling reason to commute the sentence to life.
Walker was the 107th inmate put to death in Virginia
since the U.S. Supreme Court reinstated capital punishment in 1976. Only
Texas has executed more prisoners.
Virginia executes double-murderer
By Dave Gibson - Examiner.com
May 20, 2010
Convicted double-murderer Darick Demorris Walker, 37,
was put to death tonight by lethal injection at the Greensville
Correctional Center in Jarratt, Va. The time of death was 9:24 p.m.
Earlier tonight, the U.S. Supreme Court rejected Walker’s request for a
stay of execution, which removed any hope he had of escaping his
sentence. Last week, Gov. Bob McDonnell rejected Walker’s plea for
Walker was convicted of two separate murders in
Richmond, the last of which occurred 13 years ago. According to trial
records, on Nov. 22, 1996, Walker broke into the apartment of Stanley
Beale, pointed a gun at him and asked: “What you keep coming up to my
door? What you looking for me for?” Beale told Walker he did not know
him, Walker then shot Beale to death in front of his 13-year-old
The other murder occurred on June 18, 1997, when
Walker forced his way into the home of Clarence Elwood Threat, after the
man’s girlfriend turned Walker down for a date. Walker shot Threat seven
Throughout his lengthy appeals process, Walker made
various claims including that he was mentally disabled.
The execution was Virginia's 107th since the 1976 U.S.
Supreme Court decision allowing the resumption of the death penalty.
Only Texas has carried out more executions with 451. In Virginia, the
condemned are given the choice of death either by lethal injection or
the electric chair. On March 18, convicted murderer, rapist Paul Warner
Powell chose the electric chair, making him only the third to do so
since the Commonwealth began using lethal injection as a means of
execution in 1994.
Darick Demorris Walker
Darick Demorris Walker, 37, was convicted of killing
Stanley Beale in 1996 and Clarence Elwood Threat in 1997. Virginia law
allows the death penalty for anyone who commits two premeditated murders
within three years.
Catherine Taylor and her children, Monique, Bianca,
and Sidney, lived in the University Terrace Apartments with Stanley
Beale, the children's father. On the evening of November 22, 1996,
Catherine heard "a boom like noise" in the living room. She left the
bedroom where she had been with Sidney, an infant, and as she entered
the living room, she saw a man kick in the locked front door. Taylor
later identified the man as Darick Walker. Walker was holding a gun
yelling, "Where is he?" Walker continued yelling, asking Stanley "what
you keep coming up to my door, what you looking for me for?" Stanley,
who was standing in the doorway to the kitchen, answered that he did not
know Walker and did not know where Walker lived. Bianca, who was 13
years old at the time, shouted at Walker that her father did not know
him. Walker began shooting at Stanley as Catherine ushered Bianca and
Monique into the bathroom to hide in the bathtub. Walker shot Stanley
three times, killing him. Bianca testified that she knew Walker as "Todd"
and subsequently identified Walker in a photo line-up as the person who
killed her father. A fourteen-year-old girl who was visiting a friend
who lived in the University Terrace Apartments testified that on the
night of Stanley Beale's murder, she saw a man she knew as "Todd" enter
her friend's apartment and say "I shot him." When shown a photo spread,
the girl identified Walker as the person who had entered the apartment.
On the night of June 18, 1997, Andrea Noble and
Clarence Threat were sleeping in their bedroom when they were awakened
by a "pop" coming from the screen door, followed by a knock at the door.
Andrea went to the door and looked outside through a small window in the
door, but did not see anyone. On two subsequent occasions she again
heard a knock and went to the door, but did not see anyone. Sometime
after the third knock, the door was "kicked open." Andrea went to the
living room and saw a person she knew as "Paul" standing with a gun. "Paul"
pointed the gun at her as she backed into the bedroom. When they reached
the bedroom, "Paul" hit Ahdrea with the back of the gun and then shot
Clarence Threat in the leg. In the bedroom, "Paul" and Clarence
exchanged words and "Paul" shot him again. Clarence sustained a total of
seven gunshot wounds. He died as a result of a gunshot wound to the
chest. The shooter told Andrea that if she told anyone "he would come
back and kill me and my kids."
At trial, Andrea Noble identified Walker as the
person she knew as "Paul." During the punishment phase of the trial,
prosecutors introduced Walker's prior convictions for carnal knowledge,
forgery, assault, and unauthorized use of a motor vehicle. The evidence
also showed that Walker regularly stole from friends and acquaintances
and, in a rage, had punched a pregnant woman in the stomach. In addition,
as the trial court noted in imposing sentence in accordance with the
jury's recommendation, the commission of two brutal, unprovoked murders
within a six month period is a "strong indication . . . that he is prone
Darrick Demorris Walker
In September, 1998, Darrick Demorris Walker was sentenced to
death for the capital murders of Stanley Roger Beale and Clarence Threat.
Beale was killed in November, 1996 and Threat in June, 1997. Under
Virginia's capital murder statute, a defendant may be sentenced to death
for the killing of more than one person within a three-year period.
Walker has always maintained his innocence.
Walker was also convicted of two counts of burglary and was
sentenced to life imprisonment for each, as well as four counts of the
use of a firearm in the commission of a felony for which he was
sentenced to 18 years.
But Walker is mentally retarded; to follow through with the
execution would be a violation of the U.S. constitution, as decided in
Atkins v. Virginia (2002.)
Darick’s trial was beset by errors from the beginning. His counsel
failed to make any objection to the joined trial of the two wholly
unrelated murders; failed to put on an adequate defense, including a
failure to challenge highly questionable scientific evidence; and failed
to do an adequate investigation in preparation for the sentencing phase,
which included a failure to determine Walker’s mental retardation.
The whole trial, including jury selection, the guilt phase, jury
deliberations and sentencing, lasted only two days.
Walker appealed his
capital murder conviction to the Supreme Court of Virginia, but was
denied relief. On appeal, Walker alleged numerous trial court errors
including the court's failure to order the prosecution to issue Walker a
bill of particulars outlining the grounds for the capital murder charge
and the evidence on which the prosecution intended to rely.
Walker argued that a
refusal to issue the bill of particulars undermined his Sixth Amendment
right to effective assistance of counsel. The court disagreed, stating
that the ordering of a bill of particulars is not constitutionally
required and is within the discretion of the trial court.
Darick Walker has a long documented history of mental retardation.
In the third grade he was placed in special education by the Norfolk
public school system, and by the time he should have been in sixth grade
he was reading at a third grade level.
When he was eleven, Darick was sent by the public school system to
be evaluated by an outside specialist who found his performance on a
standardized test to be “similar to what would be expected of the
typical six year old child…and individuals who are mentally retarded.”
His most recent test showed him having an IQ of 61.
Evidence of a low IQ and inability to adapt socially form the bulk
of the American Association on Mental Retardation’s (AAMR) definition of
mental retardation. The AAMR also states that evidence of the
disability arises before the age of 18, which is clearly established by
Darick’s school records. Darick’s claim of mental retardation is
currently pending in the Federal Court.
The federal judge only recently blocked the Commonwealth from
setting an execution date of August 20 - highlighting how, even after
the Atkins decision, the Commonwealth is acting recklessly in regards to
executing the mentally retarded.
The compelling evidence regarding Darick’s mental retardation, and
also the ineffectiveness of his counsel, should at least lead to a
commutation to a life sentence, and if justice is to be truly served, a
Walker is one of
seven children and grew up in the Norfolk, VA area. As an adult, he
spent a good deal of time in Richmond, VA, where he has several
relatives. Family members said that the man described by the
prosecution's witnesses was not the Darrick Walker that they know.
Walker's brother, to whom he was very close, expressed sympathy for the
victims, but tearfully stated that killing Walker would not bring them
Walker has been on
death row since September 1, 1998.
Walker v. Commonwealth, 258 Va. 54, 515
S.E.2d 565 (Va. 1999) (Direct Appeal).
Defendant was convicted in the Circuit Court, City of
Richmond, James B. Wilkinson, J., of willful, deliberate, and
premeditated killing of more than one person within three-year period.
Death sentence was imposed. Defendant appealed. The Supreme Court, Lacy,
J., held that: (1) death penalty statutes are constitutional; (2)
request for bill of particulars was properly denied; (3) evidence of
unadjudicated criminal acts was properly admitted to demonstrate
defendant's future dangerousness; (4) photographs of crime scene and
autopsy were admissible; (5) evidence supported finding of three
aggravating circumstances; and (6) death penalty was neither excessive
nor disproportionate. Affirmed.
Darick Demorris Walker was indicted for the capital
murder of Stanley Roger Beale and Clarence Threat within a three-year
period, Code § 18.2-31(8), for four counts of the use of a firearm in
the commission of a felony, Code § 18.2-53.1, and for two counts of
burglary, Code § 18.2-90. He was convicted of all offenses by a jury.
After hearing evidence on the issue of punishment, the jury fixed the
punishment for the capital offense at death based upon the vileness and
future dangerousness predicates, life imprisonment on each of the
burglaries, and a total of 18 years imprisonment for the firearms
offenses. The trial court, after considering the sentencing report of a
probation officer, sentenced Walker in accord with the jury verdicts.
Walker appealed his capital murder conviction, Record No. 990096. We
have certified Walker's appeal of his non-capital murder convictions
from the Court of Appeals, Record No. 990097, and have consolidated the
Applying familiar principles, we recite the facts in
the light most favorable to the Commonwealth, the party prevailing below.
See Horton v. Commonwealth, 255 Va. 606, 609, 499 S.E.2d 258, 259
A. Stanley Beale
Catherine Taylor and her children, Monique, Bianca,
and Sidney, lived in the University Terrace Apartments with Stanley
Beale, the children's father. On the evening of November 22, 1996,
Taylor heard “a boom like noise” in the living room. Taylor left the
bedroom where she had been with Sidney, an infant, and as she entered
the living room, she saw a man kick in the locked front door. Taylor
later identified the man as Walker. Walker was holding a gun yelling,
“Where is he?” Walker continued yelling, asking Beale “what you keep
coming up to my door, what you looking for me for?” Beale, who was
standing in the doorway to the kitchen, answered that he did not know
Walker and did not know where Walker lived. Bianca, who was 13 years old
at the time, shouted at Walker that her father did not know him. Walker
began shooting at Beale as Taylor ushered Bianca and Monique into the
bathroom to hide in the bathtub. Walker shot Beale three times, killing
Bianca testified that she knew Walker as “Todd” and
subsequently identified Walker in a photo line-up as the person who
killed her father. Tameria Patterson, a fourteen-year-old girl who was
visiting a friend who lived in the University Terrace Apartments,
testified that on the night of the murder, she saw a man she knew as
“Todd” enter her friend's apartment and say “I shot him.” When shown a
photo spread, Tameria identified Walker as the person who had entered
B. Clarence Threat
On the night of June 18, 1997, Andrea Noble and
Clarence Threat were sleeping in their bedroom when they were awakened
by a “pop” coming from the screen door, followed by a knock at the door.
Noble went to the door and looked outside through a small window in the
door, but did not see anyone. On two subsequent occasions she again
heard a knock and went to the door, but did not see anyone. Sometime
after the third knock, the door was “kicked open.” Noble went to the
living room and saw a person she knew as “Paul” standing with a gun.
“Paul” pointed the gun at Noble as she backed into the bedroom. When
they reached the bedroom, “Paul” hit Noble with the back of the gun and
then shot Threat in the leg. In the bedroom, “Paul” and Threat exchanged
words and “Paul” shot Threat again. Threat sustained a total of seven
gunshot wounds. He died as a result of a gunshot wound to the chest. The
shooter told Noble that if she told anyone “he would come back and kill
[her] and [her] kids.” At trial, Noble identified Walker as the person
she knew as “Paul.”
II. Constitutionality of Virginia's Death Penalty
In his first assignment of error, Walker asserts that
Virginia's death penalty statutes, Code §§ 19.2-264.2 to -264.5, and
17.1-313, are unconstitutional. Specifically, he argues that the
aggravating factors which the jury must consider to impose the death
penalty are unconstitutionally vague, and that the failure to provide
jury instructions regarding the meaning of those terms or to properly
inform and instruct the jury on the consideration of mitigation evidence
violates the Eighth and Fourteenth Amendments to the United States
Constitution and Sections 9 and 11 of Article I of the Virginia
Constitution. We have previously considered and rejected these
contentions, and Walker presents no basis for altering our prior
decisions. See M. Smith v. Commonwealth, 219 Va. 455, 476-77, 248 S.E.2d
135, 148 (1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d
1074 (1979)(rejecting contention that “vileness” and “future
dangerousness” predicates for imposition of the death penalty
unconstitutionally fail to guide the jury's discretion); Watkins v.
Commonwealth, 229 Va. 469, 490-91, 331 S.E.2d 422, 438 (1985), cert.
denied, 475 U.S. 1099, 106 S.Ct. 1503, 89 L.Ed.2d 903 (1986)(Constitution
requires only that jury be instructed to consider mitigating evidence.)
Walker also asserts that the death penalty statutes
are unconstitutional because they do not require the trial court to set
aside a sentence of death upon a showing of good cause, they allow the
trial court to consider hearsay evidence in the post-hearing sentence
report, and the review conducted by this Court is inconsistent with the
requirements of the Eighth Amendment. These assertions have previously
been rejected in Breard v. Commonwealth, 248 Va. 68, 76, 445 S.E.2d 670,
675, cert. denied, 513 U.S. 971, 115 S.Ct. 442, 130 L.Ed.2d 353 (1994);
O'Dell v. Commonwealth, 234 Va. 672, 701-02, 364 S.E.2d 491, 507-08,
cert. denied, 488 U.S. 871, 109 S.Ct. 186, 102 L.Ed.2d 154 (1988); R.
Smith v. Commonwealth, 239 Va. 243, 253, 389 S.E.2d 871, 876, cert.
denied, 498 U.S. 881, 111 S.Ct. 221, 112 L.Ed.2d 177 (1990),
respectively, and Walker fails to advance any reason to depart from
III. Request for a Bill of Particulars
Walker next assigns error to the trial court's denial
of his request for a bill of particulars. He contends that the
information he requested was necessary to ensure his Sixth Amendment
right to effective assistance of counsel, and that the lack of such
information undermines the “greater degree of reliability” that due
process requires in death penalty cases.
In his request for a bill of particulars, Walker
sought identification of the grounds for the capital murder charge and
the evidence upon which the Commonwealth would rely to prove the charge.
He further requested the Commonwealth to identify and provide a
“narrowing construction” of the aggravating factors upon which it
intended to rely in seeking the death penalty as well as the evidence it
intended to use in support of the aggravating factors.
The Commonwealth responded to Walker's request by
reciting the grounds upon which it believed Walker was guilty of capital
murder. The Commonwealth further stated that, if Walker was convicted of
capital murder, it would seek the death penalty based on the aggravating
factors of “vileness” and “future dangerousness.” The Commonwealth
stated that, to prove “vileness,” it would rely on the depravity of mind
and aggravated battery components provided in Code § 19.2-264(C).
Finally, the Commonwealth informed Walker that in proving “future
dangerousness,” it would rely on Walker's adult and juvenile criminal
record, the circumstances of the commission of the current offenses,
Walker's lack of remorse, and evidence of other crimes whether
adjudicated or unadjudicated.
The information requested by Walker is virtually
identical to that requested by the defendant in Strickler v.
Commonwealth, 241 Va. 482, 404 S.E.2d 227, cert. denied, 502 U.S. 944,
112 S.Ct. 386, 116 L.Ed.2d 337 (1991). In Strickler, we held that where
the indictment is sufficient, i.e., gives the accused “notice of the
nature and character of the offense charged so he can make his defense,”
a bill of particulars is not required. Id. at 490, 404 S.E.2d at 233 (quoting
Wilder v. Commonwealth, 217 Va. 145, 147, 225 S.E.2d 411, 413 (1976)).
Here, there is no challenge to the sufficiency of the
indictment. As in Strickler, those parts of Walker's request for a bill
of particulars seeking disclosure of the evidence upon which the
Commonwealth intended to rely in the guilt and sentencing phases of the
trial “are sweeping demands for pretrial disclosure of all the
Commonwealth's evidence.” 241 Va. at 490, 404 S.E.2d at 233.
However, “[t]here is no general constitutional right
to discovery in a criminal case, even where a capital offense is charged.”
Id. at 490-91, 404 S.E.2d at 233. Walker, like the defendant in
Strickler, received all the information to which he was entitled.
Furthermore, whether to require the Commonwealth to file a bill of
particulars is a matter that falls within the sound discretion of the
trial court, Goins v. Commonwealth, 251 Va. 442, 454, 470 S.E.2d 114,
123, cert. denied, 519 U.S. 887, 117 S.Ct. 222, 136 L.Ed.2d 154 (1996),
and Walker has not demonstrated an abuse of that discretion. Accordingly,
we conclude that the trial court did not err in denying Walker's request
for a bill of particulars in this case.
IV. Motion for Discovery and Inspection
Walker assigns error to the trial court's denial of
his motion for discovery and inspection. He admits that the Commonwealth
provided him with all discovery and inspection to which he was entitled
under state statutes and Rules of Court, and he does not assert that the
Commonwealth improperly withheld any exculpatory information. Instead,
Walker argues that the trial court erroneously refused to extend the
Commonwealth's duty to disclose exculpatory evidence imposed by Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and to
require the Commonwealth to disclose “all evidence, information and all
other materials which the Commonwealth intended to offer to establish
the guilt of the appellant....” Walker argues that such extension is
required to ensure the defendant's right to effective assistance of
counsel and to meet the due process requirement of reliability in the
determination that the death penalty is the appropriate punishment. We
Neither the holding in Brady nor principles of due
process impose any requirement on the Commonwealth to provide the
information sought by Walker beyond that which is exculpatory. United
States v. Agurs, 427 U.S. 97, 109, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976);
see Spencer v. Commonwealth, 238 Va. 295, 303, 384 S.E.2d 785, 791
(1989), cert. denied, 493 U.S. 1093, 110 S.Ct. 1171, 107 L.Ed.2d 1073
(1990). We do not find anything in Walker's arguments to warrant the
extension of the holding in Brady he suggests. Because the Commonwealth
provided Walker all the discovery to which he was entitled, we find no
error in the denial of his motion for discovery and inspection.
V. Additional Peremptory Challenges
Walker asserts that a defendant is entitled to
additional peremptory challenges to “ensure rights guaranteed by the
Sixth, Eighth and Fourteenth Amendments to the Constitution of the
United States,” and suggests that because a number of states and federal
courts have allowed additional peremptory strikes the trial court erred
in denying his request for additional strikes.
However, a criminal defendant has no constitutional
right to peremptory challenges. Mu'Min v. Virginia, 500 U.S. 415,
424-25, 111 S.Ct. 1899, 114 L.Ed.2d 493 (1991). And, as we have said on
numerous previous occasions, there is no provision in Virginia law for
granting such additional peremptory strikes. Strickler, 241 Va. at 489,
404 S.E.2d at 232; Spencer v. Commonwealth, 240 Va. 78, 84-85, 393 S.E.2d
609, 613, cert. denied, 498 U.S. 908, 111 S.Ct. 281, 112 L.Ed.2d 235
(1990); see Code § 19.2-262. Walker has presented no reason for us to
alter our previous rulings.
VI. Evidence of Unadjudicated Criminal Behavior
On August 10, 17, and 18, 1998, pursuant to Code §
19.2-265.3:2, the Commonwealth filed notices of its intent to present
evidence of unadjudicated criminal conduct of the defendant at the
sentencing phase of the trial. Walker asserts that admission of this
evidence was error on three primary grounds: (1) without a positive
connection of the evidence to the defendant by some standard of proof,
the evidence does not meet the test of relevancy; (2) due process
requires proof of unadjudicated prior criminal acts beyond a reasonable
doubt when such conduct is relied upon to expose the defendant to
greater or additional punishment; and (3) the use of unadjudicated
criminal acts evidence denies the defendant his due process rights to
notice and a meaningful opportunity to be heard on evidence used against
him which also results in denial of the defendant's Sixth Amendment
right to effective assistance of counsel. We reject all three of these
arguments for the reasons discussed below.
First, we have previously held that evidence of prior
violent criminal conduct, whether or not adjudicated, is relevant to the
determination of a defendant's future dangerousness because it has a
tendency to show that the accused would commit criminal acts of violence
in the future. Pruett v. Commonwealth, 232 Va. 266, 284-85, 351 S.E.2d
1, 11-12 (1986), cert. denied, 482 U.S. 931, 107 S.Ct. 3220, 96 L.Ed.2d
706 (1987). Whether the evidence produced establishes the ultimate fact
at issue must, of course, be tested by some standard of proof. Here, the
ultimate issue of fact was Walker's “future dangerousness,” which the
Commonwealth was required to prove beyond a reasonable doubt. Walker
cites no authority for the proposition that each piece of evidence
offered to prove the ultimate issue of fact must itself also be tested
by some standard of proof. Rather, that evidence is tested by the
credibility or weight the fact finder chooses to give it. See Gray v.
Commonwealth, 233 Va. 313, 346-47, 356 S.E.2d 157, 175-76, cert. denied,
484 U.S. 873, 108 S.Ct. 207, 98 L.Ed.2d 158 (1987). Therefore, we reject
Walker's assertion that the evidence of unadjudicated criminal acts did
not meet the test of relevancy because that evidence was not established
by any standard of proof.
Next Walker relies on and quotes from McMillan v.
Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), for the
proposition that evidence of unadjudicated criminal conduct is subject
to the reasonable doubt standard of evidence in the sentencing phase of
a capital murder trial because it “expose [s]” the defendant to greater
punishment and presents a “radically different situation from the usual
The Supreme Court in McMillan considered whether due
process was offended by a statute which raised the minimum sentence if
the trial court in the sentencing phase found that a defendant had
“visibly possessed a firearm” in the commission of the charged offense.
The trial court's finding did not have to be beyond a reasonable doubt.
The defendant in that case argued that the evidentiary standard of
beyond a reasonable doubt was required because visible possession of a
firearm was, in effect, an element of the offense. He argued further
that even if it was not an element of the offense, due process required
application of the reasonable doubt standard because a finding of
visible possession subjected the defendant to a greater penalty. The
Supreme Court disagreed, concluding that visible possession of a firearm
was not an element of the offense charged, and that the trial court's
finding did not subject the defendant to a greater penalty but only
raised the minimum sentence. Id. at 95, 106 S.Ct. 2411.
In the course of its discussion, the Court observed
that, had the trial court's finding of visible possession of a firearm
exposed the defendant to “greater or additional punishment,” the
argument that the finding was an element of the crime subject to the
reasonable doubt standard of proof “would have at least more superficial
appeal.” Id. at 88, 106 S.Ct. 2411. The Court also observed that if the
sentencing proceeding was “radically different,” the reasonable doubt
standard may be applied to post-trial findings. Id. at 89, 106 S.Ct.
Contrary to Walker's assertion, these comments do not
impose a due process requirement that the Commonwealth prove beyond a
reasonable doubt that the defendant engaged in the unadjudicated
criminal conduct offered as evidence in the sentencing phase of a
capital murder trial. These comments merely suggest that such a burden
of proof may be required for a factual finding that exposes the
defendant to greater punishment when such finding is made in a
sentencing proceeding that is “radically different” from the normal
sentencing proceeding. Even if this suggestion were the rule, the
Virginia death penalty sentencing statute satisfies that rule. The
“finding” that exposes the defendant to the death penalty is that of
future dangerousness, or alternatively, vileness, which by statute must
be supported by proof beyond a reasonable doubt. See Code §
19.2-264.4(C). Furthermore, in McMillan, the Supreme Court specifically
cited its holding in Patterson v. New York, 432 U.S. 197, 214, 97 S.Ct.
2319, 53 L.Ed.2d 281 (1977), for the proposition that the state need not
prove beyond a reasonable doubt every fact it recognizes as a
circumstance affecting the severity of punishment. McMillan, 477 U.S. at
84, 106 S.Ct. 2411. Therefore, we reject Walker's assertion that due
process requires that evidence of unadjudicated criminal conduct
admitted to show the defendant's future dangerousness is subject to the
reasonable doubt standard.
Finally, Walker asserts that the use of the
unadjudicated criminal conduct evidence denies him a meaningful
opportunity to be heard on the evidence used against him, thus denying
him effective assistance of counsel. Walker had notice of the evidence
the Commonwealth intended to introduce and the opportunity to
cross-examine the witnesses offering this evidence. He does not claim
such notice was inadequate nor does he contend that his counsel's
performance was inadequate.
Rather Walker argues, on a more general level, that
“counsel defending against prior unadjudicated criminal conduct [evidence]
is beyond the resources and realm of effective representation in
defending a single capital crime.” By this argument Walker seeks to
raise a Sixth Amendment claim without inquiry into counsel's actual
performance at trial. Whether or not such a claim might be sufficient in
limited circumstances, it cannot prevail in this case.
The United States Supreme Court has found
constitutional error without inquiring into counsel's actual performance
only when surrounding circumstances justify a presumption of
ineffectiveness. United States v. Cronic, 466 U.S. 648, 662, 104 S.Ct.
2039, 80 L.Ed.2d 657 (1984). For example, where counsel was totally
absent, was prevented from assisting the accused during a critical stage
of the proceeding, or was prevented from exercising independent judgment
in the manner of conducting the defense, the Supreme Court has presumed
that counsel was ineffective and that the defendant was thus prejudiced.
See id. at 659 n. 25, 104 S.Ct. 2039; Geders v. United States, 425 U.S.
80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976)(attorney barred by law from
consulting with client during overnight recess); Herring v. New York,
422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975)(attorney barred by
law from giving summation at bench trial); Brooks v. Tennessee, 406 U.S.
605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972)(requirement that defendant be
first defense witness); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77
L.Ed. 158 (1932)(counsel for defendant charged with capital offense
appointed on day of trial).
The admission of evidence of unadjudicated criminal
conduct, unlike the cases cited above, does not present circumstances
justifying a presumption of ineffective assistance of counsel. After
having obtained a guilty verdict, the Commonwealth was burdened by
statute with the responsibility of proving beyond a reasonable doubt
either future dangerousness or vileness before the death penalty could
be imposed. As discussed above, the unadjudicated criminal conduct was
relevant to Walker's future dangerousness, Walker had notice that such
evidence would be used, and he had the opportunity to cross-examine the
witnesses through whom the Commonwealth offered this evidence.
Accordingly, we find that admission of this evidence
did not violate Walker's due process or Sixth Amendment rights to
effective assistance of counsel and a meaningful opportunity to defend
VII. Admission of Evidence of Cartridge
During the guilt phase, Detective Curtis R. Mullins
testified that he received a cartridge from Steve Martin, who was the
property manager of the University Terrace Apartments where the Beale
murder occurred. Walker lived in an apartment there with Karen Beech
until some time after Beale's death. Martin found the cartridge in the
apartment following Walker and Beech's departure and prior to the
arrival of a new tenant. A certificate of analysis introduced at trial
indicated that the cartridge came from the same firearm as seven
cartridge cases recovered at the scene of the Beale murder.
At trial, Walker sought to exclude evidence regarding
the cartridge on the basis that it was found three to four months after
the murder. Walker argues on appeal that the trial court erred in
admitting Martin's testimony and the certificate of analysis into
evidence because it was “neither relevant nor material, and its
prejudicial effect far outweighed any possible probative value it may
have had.” Walker bases his relevancy argument on his view that the
trial court stated from the bench that the cartridge was not relevant.
He concludes, therefore, that the trial court abused its discretion in
admitting the cartridge into evidence.
Viewed in context, however, the trial court's
statement reveals that what it found “irrelevant” was the effect of the
time gap between the murder and Martin's discovery of the cartridge on
the admissibility of the evidence concerning the cartridge. Every fact,
however remote or insignificant, that tends to establish the probability
or improbability of a fact in issue, is factually relevant and
admissible. Epperly v. Commonwealth, 224 Va. 214, 230, 294 S.E.2d 882,
891 (1982). The fact that a cartridge matching those in the Beale murder
was found in an apartment once occupied by the defendant tends to
implicate the defendant in that murder and is thus relevant. As the
trial court indicated, the four-month time period between the murder and
discovery of the cartridge may affect the weight to be attached to the
evidence, but it does not render the cartridge irrelevant and thus
Evidence that is factually relevant must nevertheless
be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice. See Coe v. Commonwealth, 231 Va. 83, 87, 340
S.E.2d 820, 823 (1986). The responsibility for balancing the competing
considerations of probative value and prejudice rests in the sound
discretion of the trial court and will not be disturbed on appeal in the
absence of a clear abuse. Spencer, 240 Va. at 90, 393 S.E.2d at 617.
Walker does not identify any prejudice that arose from the admission of
the cartridge other than its tendency to show that Walker killed Beale.
Accordingly, we find that the trial court did not err by admitting
evidence related to the cartridge into evidence.
VIII. Admission of Photographs
During both the guilt and sentencing phases of the
proceeding, the Commonwealth introduced photographs of the crime scenes
and autopsy photographs of Threat. Walker asserts that the photographs
were “a calculated attempt to arouse the jurors's sympathies” and that
because they were not “substantially necessary” to the Commonwealth's
case, the trial court erred in admitting them into evidence. We disagree.
Admission of photographs is within the discretion of
the trial court. Walton v. Commonwealth, 256 Va. 85, 91, 501 S.E.2d 134,
138 (1998). Photographs of crime scenes are admissible to show motive,
intent, method, malice, premeditation, and atrociousness of the crime.
Id. at 92, 501 S.E.2d at 138. Photographs which accurately depict the
crime scene are not rendered inadmissible simply because they are
gruesome or shocking. Id. There is no assertion that the photographs
here were not accurate representations of the murder scenes.
The Commonwealth offered the crime scene photographs
to show the positioning of Beale's body and other incidents of his
murder and to show where items of evidence were found at the Threat
murder scene. Such photographs are relevant and probative evidence for
the jury to consider. Clagett v. Commonwealth, 252 Va. 79, 87, 472 S.E.2d
263, 268 (1996), cert. denied, 519 U.S. 1122, 117 S.Ct. 972, 136 L.Ed.2d
856 (1997); Goins, 251 Va. at 459, 470 S.E.2d at 126. The autopsy
photographs, introduced at the penalty phase of the proceeding, showed
the “stippling” near Threat's wounds, indicating the close range at
which Walker shot Threat, and were relevant on the issue of whether
Walker's conduct was outrageously vile. Washington v. Commonwealth, 228
Va. 535, 551, 323 S.E.2d 577, 588 (1984), cert. denied, 471 U.S. 1111,
105 S.Ct. 2347, 85 L.Ed.2d 863 (1985).
As discussed above, evidence that is logically
relevant must be excluded if its probative value is substantially
outweighed by its prejudicial effect. Coe, 231 Va. at 87, 340 S.E.2d at
823. This balancing is left to the sound discretion of the trial court
and will not be disturbed on appeal absent clear abuse of discretion. Id.
We have examined the photographs and conclude that the trial court did
not abuse its discretion in admitting them into evidence.
IX. Toxicologist Evidence
Walker assigns error to the trial court's refusal to
admit into evidence the testimony and reports of a toxicologist who
found the presence of drugs in the systems of both victims. Walker
asserts that this evidence was relevant because it “would be
circumstantial evidence ... of a possible alternative motive for the
killing by someone else.” We disagree.
Only evidence which bears upon and is pertinent to
matters in issue is relevant and should be admitted. Coe, 231 Va. at 87,
340 S.E.2d at 823. Evidence of collateral facts and facts incapable of
supporting an inference on the issue are irrelevant and cannot be
accepted into evidence. Id. There is nothing in this record which
supports Walker's theory that the murders were drug-related, and
evidence of the presence of drugs in the victims' systems simply does
not support the inference that someone other than Walker committed the
crimes. Accordingly, the trial court did not abuse its discretion in
refusing to admit this evidence.
X. Testimony of Prison Conditions
During the penalty phase of the proceeding, Walker
sought to introduce the testimony of Gary Bass, Chief of Operations for
the Virginia Department of Corrections, regarding the conditions of
prison life, specifically life without parole in a maximum security
prison. Walker asserts that this evidence was relevant and properly
admissible because it would mitigate against his receiving the death
penalty, and therefore, the trial court erred in refusing to admit it.
However, we have previously held that such testimony is not proper
mitigating evidence. Cherrix v. Commonwealth, 257 Va. 292, 309-10, 513
S.E.2d 642, 653 (1999).
XI. Sufficiency of the Evidence
A. Guilt Phase
Walker asserts that the trial court should have
sustained his motion to strike the Commonwealth's evidence made at the
close of the Commonwealth's case-in-chief because the evidence was
insufficient as a matter of law to convict Walker of the offenses
charged. Walker argues that the “sole” evidence against him is the
testimony of the eyewitnesses and that this testimony is “inherently
incredible.” With regard to the Beale murder, Walker argues that the
ages of Bianca and Tameria, thirteen and fourteen respectively, made
their testimony “suspect.” Walker asserts that their credibility is
further undermined by the testimony of Christopher Miller, a witness for
the Commonwealth, who stated that the person he saw with a gun at the
apartment complex on the night of the murder was not bald, in
contradiction to the fact that Taylor had described the shooter as being
bald. With regard to the murder of Threat, Walker claims that Noble's
testimony should be discounted because she told the investigating
officer both that she did not know the shooters and that one shooter was
named “Paul.” Walker asserts that this inconsistency renders Noble's
testimony inherently incredible.
Walker's argument is based entirely on the issue of
witness credibility. The trier of fact is the sole judge of the
credibility of the witnesses, Davis v. Commonwealth, 230 Va. 201, 206,
335 S.E.2d 375, 379 (1985), unless, as a matter of law, the testimony is
inherently incredible, Rogers v. Commonwealth, 183 Va. 190, 201-02, 31
S.E.2d 576, 580 (1944). The jury in this case resolved the credibility
issues regarding the testimony of Bianca, Tameria, and Noble against the
position advanced by Walker. The ages of Bianca and Tameria and the
conflict in testimony regarding whether the person seen was bald, while
issues to be weighed by the fact finder, do not support a finding that
the testimony is inherently incredible. Similarly, Noble's statements to
the investigating officer did not render her testimony inherently
incredible. Accordingly, we will not disturb the ruling of the trial
court denying Walker's motion to strike the Commonwealth's evidence.
B. Evidence of Aggravating Factors
Walker asserts that the Commonwealth failed to carry
the burden imposed upon it by Code § 19.2-264.4(C) to prove beyond a
reasonable doubt that he would be a continuing threat to society, or
that his conduct in committing the murders was outrageously vile,
horrible, or inhuman, in that it involved depravity of mind or
This argument is without merit. With regard to future
dangerousness, the Commonwealth introduced Walker's prior convictions
for carnal knowledge, forgery, assault, and unauthorized use of a motor
vehicle. The evidence also showed that Walker regularly stole from
friends and acquaintances and, in a rage, had punched a pregnant woman
in the stomach. In addition, as the trial court noted in imposing
sentence in accordance with the jury's recommendation, the commission of
two brutal, unprovoked murders within a six month period is a “strong
indication ... that [Walker] is prone towards violence.”
With regard to vileness, the Commonwealth's evidence
supports two of the alternative factors which can support a finding of
vileness - aggravated battery and depravity of mind. See Goins, 251 Va.
at 468, 470 S.E.2d at 131 (proof of any one of these statutory
components will support a finding of vileness). Aggravated battery is a
battery which “qualitatively and quantitatively, is more culpable than
the minimum necessary to accomplish an act of murder.” M. Smith v.
Commonwealth, 219 Va. 455, 478, 248 S.E.2d 135, 149 (1978), cert. denied,
441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979). In this case Beale
was shot three times, and any one of the shots could have been fatal.
Walker shot Threat seven times. These multiple gunshots establish
aggravated battery. Goins, 251 Va. at 468, 470 S.E.2d at 131.
Walker's actions established depravity of mind, that
is, a “degree of moral turpitude and psychical debasement surpassing
that inherent in the definition of ordinary legal malice and
premeditation.” M. Smith, 219 Va. at 478, 248 S.E.2d at 149. Walker shot
his victims in front of their loved ones and family members, after
having forcibly invaded the sanctity of their homes. The evidence showed
that the killings were unprovoked, premeditated, and methodical. Walker
showed no mercy toward his victims or their loved ones.
Based on this evidence, we conclude that the
Commonwealth proved beyond a reasonable doubt that Walker would be a
continuing serious threat to society and that his conduct in committing
the murders was vile. Accordingly, the trial court did not err in
refusing to strike the Commonwealth's evidence of the aggravating
XII. Statutory Review
Code § 17.1-313(C) requires this Court to consider
whether the sentence of death was imposed “under the influence of
passion, prejudice or any other arbitrary factor,” and whether such
sentence is excessive or disproportionate to penalties imposed in
similar cases, “considering both the crime and the defendant.” Walker
presents no arguments asserting that his sentence resulted from passion
or prejudice, but relies on our statutorily mandated review of this
issue. Our review of the record reveals nothing to suggest that the
sentence of death resulted from passion, prejudice or arbitrariness. As
we have said, the record supports the findings of guilt and of the
aggravating factors, and there is nothing to suggest that Walker's
sentence of death was imposed because of any arbitrary factor.
Walker also relies on the review we must undertake to
determine whether the sentence imposed in this case is excessive or
disproportionate to other sentences imposed by sentencing bodies in this
Commonwealth for similar crimes. This is the first case we have
considered in which the death penalty had been imposed for the willful,
deliberate, and premeditated killing of more than one person within a
three-year period. Code § 18.2-31(8).FN* The General Assembly classified
this conduct as capital murder in 1996. Acts 1996, ch. 959. However, the
lack of directly comparable crimes does not prevent our consideration of
whether the sentence imposed in this case was disproportionate under the
review mandated by Code § 17.1-313(C)(2). If it did, as we observed in
Stewart v. Commonwealth, 245 Va. 222, 248, 427 S.E.2d 394, 410, cert.
denied, 510 U.S. 848, 114 S.Ct. 143, 126 L.Ed.2d 105 (1993), then “a
death sentence could never be imposed where there are no previous cases
similar to the one at bar.”
FN* The defendant in Walton v. Commonwealth, 256 Va.
85, 501 S.E.2d 134 (1998), was convicted of four charges of capital
murder. One of those convictions was pursuant to Code § 18.2-31(8);
however, the trial court dismissed the charge after sentencing on the
other three convictions. After reviewing the incidents of this crime and
the circumstances of this defendant, we conclude that the sentence of
death was not disproportionate to other sentences imposed in this
Commonwealth for similar crimes. There are a number of incidents of this
capital murder which are comparable to the facts surrounding other cases
in which the death penalty has been imposed.
First, Walker invaded the homes of both of his
victims and shot them in front of family members or a loved one. Juries
have imposed the death penalty for the murder of victims in their homes
and in the presence of another family member. See Goins, 251 Va. 442,
470 S.E.2d 114; Burket v. Commonwealth, 248 Va. 596, 450 S.E.2d 124
(1994), cert. denied, 514 U.S. 1053, 115 S.Ct. 1433, 131 L.Ed.2d 314
(1995); Stewart v. Commonwealth, 245 Va. 222, 427 S.E.2d 394; Davidson
v. Commonwealth, 244 Va. 129, 419 S.E.2d 656, cert. denied, 506 U.S.
959, 113 S.Ct. 423, 121 L.Ed.2d 345 (1992). Second, as with Stewart,
Goins and Burket above, the jury in this case found upon sufficient
evidence that Walker's conduct in committing these murders was
outrageously or wantonly vile, and that Walker posed a continuing
serious threat to society. Third, the jury found upon sufficient
evidence that Walker committed the willful, deliberate, premeditated
killing of multiple persons. Juries have in the past, based on the
predicate of future dangerousness and vileness, imposed the death
sentence upon perpetrators of multiple homicides within a brief time
period under Code § 18.2-31(7), which makes it a capital crime to murder
more than one person in the same transaction. See Goins, 251 Va. 442,
470 S.E.2d 114; Burket, 248 Va. 596, 450 S.E.2d 124; Stewart, 245 Va.
222, 427 S.E.2d 394.
In the instant case, the separation of time between
the murders arguably evidences an even greater disregard for human life.
The second murder in this case did not occur because that victim was
located proximately to the first, as in some single transaction murders.
Here, Walker engaged in distinct complete acts of willful, deliberate,
and premeditated murder. The serial nature of his criminal conduct is no
less egregious because it was not performed as part of a single
Finally, the evidence Walker offered in mitigation
during the sentencing phase, when compared to the evidence of his prior
history and circumstances of this crime, does not distinguish him from
defendants who have been sentenced to death in past cases.
Based upon this review, we find that the sentence of
death in this case is neither excessive nor disproportionate to
sentences imposed by sentencing bodies in this Commonwealth for similar
crimes. Consequently, we hold that the trial court committed no
reversible error and, based on our independent review of the record,
conclude that the sentence of death was properly imposed. Thus, we will
affirm the trial court's judgment concerning Walker's conviction and
sentence for capital murder. We will also affirm the trial court's
judgment concerning Walker's convictions and sentences for burglary and
use of a firearm.
Walker v. Kelly, 593 F.3d 319 (4th Cir.
Background: Following affirmance of his conviction of
capital murder, 258 Va. 54, 515 S.E.2d 565, and denial of postconviction
relief, petitioner sought writ of habeas corpus. The United States
District Court for the Eastern District of Virginia denied the petition.
On appeal, the Court of Appeals granted petitioner's application to file
successive petition. The District Court, Claude M. Hilton, Senior
District Judge, dismissed the second petition, and the Court of Appeals,
Luttig, Circuit Judge, 399 F.3d 315, vacated and remanded. On remand,
the District Court, Hilton, Senior District Judge, denied the petition.
Holding: The Court of Appeals, Shedd, Circuit Judge,
held that district court did not clearly err in determining petitioner
did not establish he was “mentally retarded” under Virginia law.
Affirmed. Gregory, Circuit Judge, filed an opinion concurring in part
and dissenting in part.
SHEDD, Circuit Judge:
In Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242,
153 L.Ed.2d 335 (2002), the Supreme Court held that the Eighth Amendment
prohibits the execution of mentally retarded persons. Relying on Atkins,
Virginia capital inmate Darick Demorris Walker filed a petition for
federal habeas corpus relief seeking to prevent his execution. Finding
that Walker failed to prove that he is mentally retarded under Virginia
law,FN1 the district court denied the petition, and he now appeals. For
the following reasons, we affirm the judgment of the district court.
FN1. “While Walker's claim ultimately derives from
his rights under the Eighth Amendment, whether he is mentally retarded
is governed by Virginia law.” Walker v. True, 399 F.3d 315, 319 (4th
Cir.2005) ( “ Walker v. True II ”).
In 1998, the Commonwealth of Virginia convicted
Walker of capital murder for the killings of two men within a three-year
period. Walker was sentenced to death, and his conviction and capital
sentence were affirmed. Walker v. Commonwealth, 258 Va. 54, 515 S.E.2d
565 (1999), cert. denied, 528 U.S. 1125, 120 S.Ct. 955, 145 L.Ed.2d 829
(2000). The underlying facts of his crimes, which are not pertinent to
this appeal, are set forth in the state supreme court's opinion. See 515
S.E.2d at 568-69.
After unsuccessfully pursuing state post-conviction
relief, Walker filed the first of two petitions for habeas corpus relief
in the district court. The claims involved in Walker's first habeas
petition are not before us in this appeal. See Walker v. Kelly, 589 F.3d
127 (4th Cir.2009) (affirming the denial of Walker's first habeas
While Walker's first habeas petition was pending in
the district court, the Supreme Court decided Atkins. Concluding that a
national consensus had developed against the execution of the mentally
retarded, the Court held that the Eighth Amendment bars their execution.
In doing so, the Court noted: To the extent there is serious
disagreement about the execution of mentally retarded offenders, it is
in determining which offenders are in fact retarded.... Not all people
who claim to be mentally retarded will be so impaired as to fall within
the range of mentally retarded offenders about whom there is a national
consensus. Atkins, 536 U.S. at 317, 122 S.Ct. 2242. However, the Court
“did not provide definitive procedural or substantive guides for
determining when a person who claims mental retardation will be so
impaired as to fall” within the class of defendants ineligible for
capital punishment. Bobby v. Bies, ---U.S. ----, 129 S.Ct. 2145, 2150,
173 L.Ed.2d 1173 (2009) (internal punctuation omitted). Instead, the
Court expressly left to the states the “ ‘task of developing appropriate
ways to enforce the constitutional restriction upon [their] execution of
sentences.’ ” Atkins, 536 U.S. at 317, 122 S.Ct. 2242 (quoting Ford v.
Wainwright, 477 U.S. 399, 405, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986)).
“States ... have responded to that challenge by adopting their own
measures for adjudicating claims of mental retardation.” Schriro v.
Smith, 546 U.S. 6, 7, 126 S.Ct. 7, 163 L.Ed.2d 6 (2005).
The Virginia General Assembly responded to Atkins by
enacting a statutory scheme to determine capital defendants' claims of
mental retardation. Pertinent to this case, the General Assembly
mandated that a capital defendant has the burden of proving mental
retardation by a preponderance of the evidence, Va.Code §
19.2-264.3:1.1(C), and it defined the term “mentally retarded” as: [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. Va.Code § 19.2-264.3:1.1(A). For a
capital defendant (such as Walker) who had completed his direct appeal
and state habeas proceeding as of the effective date of the legislation,
the General Assembly specified that “he shall not be entitled to file
any further habeas petitions in the [Virginia] Supreme Court and his
sole remedy shall lie in federal court.” Va.Code § 8.01-654.2.
Walker initially presented his Atkins claim in his
appeal from the denial of his first federal habeas petition. Construing
his Atkins claim in that appeal as a motion for authorization to file a
successive habeas corpus petition, we granted Walker authorization. See
Walker v. True, 67 Fed.Appx. 758, 770-71 (4th Cir.) (“ Walker v. True I
”), vacated on other grounds, 540 U.S. 1013, 124 S.Ct. 567, 157 L.Ed.2d
426 (2003). Walker then filed his second federal habeas petition (which
is now before us), and the Commonwealth moved to dismiss that petition.
The district court granted the Commonwealth's motion and entered
judgment against Walker.
On appeal, we vacated the judgment, concluding that
the district court erred by dismissing the petition without holding an
evidentiary hearing; consequently, we remanded the case for an
evidentiary hearing to address whether Walker is mentally retarded under
Virginia law. See Walker v. True II, 399 F.3d at 327. However, although
we ruled in Walker's favor concerning his right to have an evidentiary
hearing, we rejected his contention that he was entitled to have a jury
decide whether he is mentally retarded. As we explained: [T]he portion
of the Virginia statute that refers to a jury determination does so in
the context of the appropriate procedure at sentencing in state court.
It does not bear on the appropriate federal procedure governing Walker's
Eighth Amendment claim that is based, in part, upon Virginia's
definition of mentally retarded. 399 F.3d at 324-25.
On remand, the district court held a multi-day
evidentiary hearing without a jury, during which the parties introduced
a substantial amount of evidence on the issue of Walker's mental
retardation. This evidence included Walker's scores on various
standardized tests; documentary evidence from school, prison, and
medical records; and declarations from his family, acquaintances, and
fellow inmates. The court also heard testimony from several witnesses,
including designated experts who testified on the issue of Walker's
mental retardation. Eventually, the court denied Walker's petition. This
In accordance with Virginia law, Walker presented his
Atkins claim only in federal court; therefore, the standard of review
mandated by AEDPA does not apply. See Walker v. True II, 399 F.3d at
319. Instead, we review the district court's legal conclusions de novo
and its factual findings for clear error. Green v. Johnson, 515 F.3d
290, 301 (4th Cir.), cert. denied, --- U.S. ----, 128 S.Ct. 2999, ---L.Ed.2d
---- (2008). Because the determination of mental retardation involves a
question of fact, Atkins v. Commonwealth, 272 Va. 144, 631 S.E.2d 93, 98
(2006), we review the district court's finding that Walker is not
mentally retarded for clear error, Holladay v. Allen, 555 F.3d 1346,
1353 (11th Cir.2009). When we review factual findings under this
Our scope of review is narrow; we do not exercise de
novo review ... or substitute our version of the facts for that found by
the district court. Instead, “[i]f the district court's account of the
evidence is plausible in light of the record viewed in its entirety, the
court of appeals may not reverse it even though convinced that had it
been sitting as the trier of fact, it would have weighed the evidence
differently.” Thus, facts found by the district court are conclusive on
appeal “unless they are plainly wrong.” A factual finding by the
district court may be reversed only if, “although there is evidence to
support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.” Walton
v. Johnson, 440 F.3d 160, 173-74 (4th Cir.2006) (en banc) (citations
To prevail on his Atkins claim under Virginia law,
Walker must meet the comprehensive definition of the statutory term
“mentally retarded.” Green, 515 F.3d at 298. Thus, he must prove by a
preponderance of the evidence that he has a disability that originated
before the age of 18, and that the disability is characterized by (1)
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 (“the I.Q. prong”) and
(2) significant limitations in adaptive behavior as expressed in
conceptual, social, and practical adaptive skills (“the adaptive prong”).
Although Walker devotes much of his appeal to the district court's
analysis of the I.Q. prong, it is unnecessary for us to address those
arguments because we conclude that the court did not clearly err in
rejecting his claim on the adaptive prong. See Green, 515 F.3d at 301 (recognizing
that the failure to prevail on the adaptive prong necessarily defeats an
As noted, the adaptive prong focuses on whether a
person can prove “significant limitations in adaptive behavior” and it
measures such behavior by looking to the person's conceptual, social,
and practical adaptive skills. Conceptual adaptive skills “involve
skills pertaining to language, reading and writing, money concepts, and
self-direction;” social adaptive skills “are measured by interpersonal
skills and responsibility, self-esteem, gullibility and naivete, and
ability to follow rules and obey laws;” and practical adaptive skills
“involve activities relevant to daily living, occupational skills, and
maintenance of a safe environment.” Green, 515 F.3d at 302.FN2 During
the evidentiary hearing the parties presented a substantial amount of
evidence pertaining to Walker's adaptive behavior. We now turn to a
brief summary of that evidence. FN2. These definitions come from the
American Association of Mental Retardation's standards for measuring
adaptive skills. See Green, 515 F.3d at 302.
As evidence of his conceptual limitations, Walker
pointed to his difficulties reading and writing. He presented evidence
that “he never reads or looks at books or magazines,” J.A. 310, and he
also claimed that he relies on other inmates to help him read, write,
and fill out forms. Moreover, affidavits from family members note that
Walker would ask others to read letters to him, and his brother's
affidavit related a particularly telling moment: “When I was in Ninth
grade and Darick was seventeen years old, I remember coming back from
school to find Darick at home with a bunch of blank job applications. I
had to fill them out for him.” J.A. 159.
Walker also pointed to his inability to handle money
and his heavy reliance on others to get by in the world. His family
members noted that, while growing up, Walker never knew what to do with
money. Moreover, his fellow inmates claimed that he relies on them for
help in maintaining his account with the prison commissary. His experts
also observed that “[a]fter leaving home, Mr. Walker consistently relied
on others to help him negotiate the basics of everyday life,” J.A. 378,
and that even in prison he is dependent on others to “support and
intercede on his behalf,” J.A. 313. There was also evidence that Walker
relies on others for help in seeking medical attention.
Finally, Walker pointed to evidence of his lack of
direction and inability to deal with unstructured time. He claimed that
he lacks interest in any activities, other than watching television.
During interviews with his experts, Walker could not state who the
President of the United States was, had not heard of Hurricane Katrina (which
had just recently occurred), and misstated his age as 32 when he had in
fact turned 33 two months prior.
The Commonwealth took a different tack with respect
to Walker's conceptual skills. While admitting that Walker possessed
conceptual skills that are “below average,” the Commonwealth's expert,
Dr. Hagan, opined that these limitations “did not significantly impair
his capacity to adapt to the requirements of life including
transportation, use of communication technology, planning, scheming,
dealing with reasonably foreseeable contingencies, self advocacy, self-protective
mechanisms, and selective portrayal of facts and circumstances.” J.A.
977. In support of this assertion, the Commonwealth and Dr. Hagan
pointed to several events that purport to showcase Walker's conceptual
In particular, the Commonwealth focused on Walker's
extensive criminal history as evidencing his conceptual abilities. The
Commonwealth referenced a fraudulent scheme concocted by Walker, whereby
he arranged to sell a vehicle to an individual, told the individual that
some money was needed to correct problems with the title, and absconded
with the money. Dr. Hagan opined: This conduct clearly demonstrates Mr.
Walker's capacity to develop a plan, consider various contingencies in
connection with that plan, promote the plan to an unsuspecting person,
and pull off the ruse by affecting [sic] his departure without being
detected at least for the time being. He not only had to put the plan
together, but also had to fool his victim into going along with the plan
without arousing suspicion. This reflects considerable conceptual
capabilities. J.A. 978.
Dr. Hagan also considered how Walker reacted when he
was being investigated for an armed robbery and drew the following
conclusions: Mr. Walker gave a statement to law enforcement on 3/2/93 (age
20) in connection with the Virginia Beach Armed Robbery charge. Mr.
Walker had sufficient conceptual grasp of his situation to deny any
involvement in or knowledge of the offense. This was designed to protect
his liberty interest. After [a law enforcement official] advised Mr.
Walker of additional information provided by a witness, Mr. Walker then
made an adjustment in his story to deal with this contingency. This
reflects a degree of executive functioning and conceptual reasoning in
that Mr. Walker had entered the interview with one strategy in mind and
then changed that strategy based on immediately unfolding circumstances.
He then gave a written statement which, although marked by misspelling
and grammatical error, reflected a linear thought process with no
oddities or illogical reasoning. The statement, which if believed, would
have furthered his liberty interest. J.A. 985. The Commonwealth also
introduced court transcripts that contain examples of Walker testifying
as to historical events and even correcting prosecutors as to the
timeline of his various arrests.
In addition, the Commonwealth presented evidence of
Walker's ability to read and write. For example, the Commonwealth
provided several examples of Walker's writing ability, including prison
forms and the written statement that he prepared in connection with an
armed robbery charge. Dr. Hagan noted Walker's admission that he would
use a fellow inmate to write letters, not because “I cannot find the
words,” but because “it's easier for him to do it.” J.A. 979. Thus,
according to Dr. Hagan, Walker's reason for having others write letters
for him was less a matter of inability and more a matter of convenience.
In attempting to prove significant limitations in his
social skills, Walker presented evidence that he is a loner who has
always had difficulties maintaining appropriate relationships with his
peers. In particular, Walker presented school records replete with
observations of his social and behavioral difficulties. His records
describe his behavior variously as “aberrant,” “inappropriate,” “disruptive,”
and “deviant.” J.A. 607, 609, 613, 1073. One report from Walker's school
years notes that he would “threaten[ ] smaller children and tease[ ]
other students cruelly.” J.A. 607. Walker also presented evidence that
this anti-social behavior continues to this day, in the form of
affidavits from fellow inmates that he will flood his cell when he gets
However, the Commonwealth presented its own evidence
suggesting that Walker's deficits in social skills are not significant.
First, although Walker's school records generally indicate his
difficulties getting along with peers at school, other records from the
same time period suggest that he was capable of developing and
maintaining social relationships outside of the classroom. For example,
his mother's responses to a 1987 Virginia Department of Education Social
Behavior Checklist indicate that Walker had “plenty of friends” and got
along well with adults. J.A. 1064. Among his favorite activities, his
mother listed “sports, church activities and talking to adults.” J.A.
1067. Moreover, a 1983 psychiatric evaluation noted: There is no history
of school avoidance or separation difficulties. Patient states that in
classroom he is made fun of and called “retarded” by his classmates. He
states that they get jealous when he makes 100's and they get C's and
D's on their tests. He states that they will not let him play any games
with them and so then goes to play with the sixth graders. He and his
mother both report that he is able to get along with neighborhood
children without problems. He and his mother both report that he is the
“class-clown” and this may bring some attention to him in addition to
his hyperactive type behavior in the classroom and might set him up to
be the scape-goat. J.A. 1076-77. Further, some of Walker's school
records indicate his ability to maintain appropriate social intercourse.
Classroom reviews from 1987 note his “very appropriate classroom
behavior” and his ability to “get[ ] along with his peers.” J.A. 1097.
Additionally, Dr. Hagan pointed to reports from
prison officials of Walker's behavior as indicative of social skills.
Prison officials reported that Walker never had difficulty communicating
his needs and interests and was cordial and conversational. Prison
mental health services screenings of Walker note that he was clean,
cooperative, and capable of engaging in “extensive conversations about
family [and] security complaints.” J.A. 1435. His behavior during these
screenings was variously described as “polite” and “cooperative.” J.A.
1435, 1438, 1441, 1444. Moreover, Dr. Hagan noted Walker's ability to
ingratiate himself to women and establish intimate relationships with
them in a relatively short period of time as evidence of his social
Walker presented evidence suggesting that he suffers
from limitations in his practical adaptive skills. For example, he
pointed to evidence that he is incapable of performing the basic tasks
incidental to an independent life, such as renting an apartment,
managing money, and paying bills. His mother's affidavit portrays him as
a man who “just wouldn't have been able to read and understand a bill or
a lease,” J.A. 156, and his brother averred that Walker “never knew how
to handle money,” J.A. 159. The Commonwealth's expert agreed that there
is no evidence that Walker ever had a bill in his name.
Walker also introduced evidence that he was unable to
obtain a driver's license and was wholly dependent on others for
transportation. His brother averred that Walker “never had a driver's
license. I never saw him take a public bus. If Darick wanted to get
somewhere, me or another relative would have to drive him.” J.A. 159.
Another relative stated that Walker “had a tough time understanding easy
directions. I used to work straight down the street from my apartment. I
told Darick exactly how to get from one place to the other, but he
couldn't find his way home even though it was right down the street.”
J.A. 864. Finally, Walker put forth evidence that he has a very limited
job history and was unable to maintain steady employment prior to his
incarceration. According to one of his experts, Walker “did not have a
regular job or even stable part-time employment.” J.A. 311. Walker's
expert considered these facts important because “[a] critical adaptive
behavior domain for adults is employment and self-support.” J.A. 310.
On the other hand, the Commonwealth presented a
considerable amount of evidence illustrating Walker's practical skills.
For example, the Commonwealth presented Walker's own testimony from his
1998 trial for armed robbery. That testimony included the following
exchanges: Q: And when you were stopped by Officer Hamilton, you were
coming out of 3404 Howard Road? A: Yes, I was, that's my apartment
number. * * * The Court: Mr. Walker, how did you get from Richmond down
to Chesapeake? Witness Derrick [sic] Walker: Well, sir, um, the person's
car that I had, I returned the car, and that person wanted to know why
did I want a ride to the Tidewater area. I explained to that person what
I had did. I just didn't want to take the car and go to the Tidewater
area and then have that person without a car, so she gave me a ride and
dropped me off at my brother's house. J.A. at 1296, 1300. According to
Dr. Hagan, these exchanges showcased Walker's ability to remember
addresses, his ability to make his way from one place to another, and
his ability to drive. Dr. Hagan also pointed to records from Walker's
case file on his carnal knowledge conviction that relate instances of
Walker driving a car, using a pager, and renting a hotel room.
In addition, Dr. Hagan testified as to his interviews
with one of Walker's girlfriends, Kelly Walker White. Ms. White related
that Walker shared an apartment with her for a period of time, during
which Walker babysat her son, cared for the apartment, and cooked from
scratch. During the evidentiary hearing, Dr. Hagan gave the following
testimony: And it wasn't just that he took on these tasks, he did them
effectively, he did them repeatedly, he did them consistently. She would
come home from work, the child was clean, was dressed, was powdered,
bathed and not with a whimper of discontent from the child, and dinner
was ready. And she was very pleased to have his able assistance. J.A.
Moreover, Dr. Hagan noted that, with respect to
Walker's employment history, there was no evidence that Walker was ever
discharged from employment due to an inability to perform the duties of
the job. In his report, Dr. Hagan observed: Although his experts declare
that Mr. Walker was not able to secure and maintain a job, his own
statement is that he found several jobs, but quit them at his own
election, just as he quit Job Corps. He left because he did not have
family support.... He said he left Long John Silver in Richmond after
7-8 months because he wanted to go home and help his mother who had an
unconfirmed heart condition. This was voluntary unemployment. J.A. 1018.
Dr. Hagan went on to explain that “[Walker's] elected lifestyle,
including chronic involvement in criminal activities, did not lend
itself to mainstream employment, but there was no indication of an
actual inability in that regard.” J.A. 1019-20.
Finally, there is evidence in the record tending to
show that Walker is able to adequately care for himself. For example,
Walker washes his own clothing in prison in order to avoid skin
irritation which he attributed to the soap used in the prison laundry.
Dr. Hagan's report also relied on statements from prison officials that
they had never observed hygiene problems with regard to Walker and that
Walker had never had any trouble communicating his needs and concerns to
Ultimately, four experts testified that Walker's
skills limitations are significant, basing their conclusions on school
and medical records, clinical interviews, prior psychological
evaluations, declarations from individuals familiar with Walker, and
other records concerning his background, as well as the results of a
standardized measure called the Adaptive Behavior Assessment System,
second edition (“ABAS-II”). In contrast, the Commonwealth's expert, Dr.
Hagan, testified that Walker does not suffer from significant
limitations in his adaptive behavior. He based his conclusions on “[a]
clinical interview with a collateral informant, review of interview
summaries by trial defense investigators and mitigation specialist, in-person
observation of Walker's interviews with three psychologists on two
occasions, numerous reports of psychological testing including IQ scores
as well as [a] review of educational, correctional and vocational
records.” J.A. 976. In his report, Dr. Hagan also concluded that
Walker's experts' reliance on the ABAS-II to determine Walker's adaptive
behavior was not “sound practice.” J.A. 977.
Apparently crediting Dr. Hagan's testimony over
Walker's experts' testimony, the district court concluded that Walker
failed to meet his burden of showing significant limitations in his
Petitioner has failed to show by a preponderance of
the evidence that he has “significant limitations in adaptive behavior
as expressed in conceptual, social, and practical adaptive skills.” See
Va.Code Ann. § 19.2-264.3:1.1(A). While Petitioner has presented
evidence that he suffers from below average mental intelligence,
struggles to perform some basic activities, exhibits anti-social
behavior, and obtains financial support from others, Petitioner has not
shown by a preponderance of the evidence that he has significant
limitations in adaptive behavior. Petitioner has committed various
crimes requiring the ability to relate to others, associated himself
with women on a personal and intimate level, engaged in homemaking
activities, seduced under-aged girls, used others to help him avoid
authorities, independently invoked his Miranda rights, used his
brother's identity to obtain a driver's license, and obtained goods for
himself while in prison. Therefore, while [P]etitioner has below average
mental intelligence and some limitations in adaptive behavior, the Court
finds that Petitioner has not shown by a preponderance of the evidence
that he is mentally retarded as defined by Virginia law. J.A.
FN3. That the district court set forth these factual
findings under the heading “Conclusions of Law” is immaterial to our
review. See Tri-Tron Int'l v. Velto, 525 F.2d 432, 435 (9th Cir.1975)
(“The fact that the district court intermingled some of its findings of
fact with its conclusions of law is of no significance. We look at a
finding or a conclusion in its true light, regardless of the label that
the district court may have placed on it.”).
In challenging these findings as being clearly
erroneous, Walker argues that the district court's holding “could only
result from a complete failure to consider his overwhelming proof,
appropriately weigh it, and make specific findings to explain the basis
for its ruling.” Brief for Appellant Darick Demorris Walker, at 16. He
further contends that the court's “general findings ... lack evidentiary
support and are consistent with the definition of mental retardation.”
Id. We find no merit to these contentions.
As we have summarized above, the district court was
presented with conflicting evidence concerning Walker's adaptive skills,
and it had the opportunity to assess the various witnesses who testified.
Unfortunately for Walker, the court was not persuaded by his evidentiary
presentation, and it concluded that he failed to meet his burden of
proving the necessary fact that he suffers from significant limitations
in adaptive behavior.FN4 Although the court's finding in this regard may
not be compelled by the evidence in the record, there is certainly
evidence in the record to support it. Applying our limited standard of
appellate review, we cannot conclude on the record presented that the
court clearly erred. See Anderson v. City of Bessemer City, N.C., 470
U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) ( “Where there are
two permissible views of the evidence, the factfinder's choice between
them cannot be clearly erroneous.”); see e.g., Green, 515 F.3d at 301-03
(affirming district court's finding that the petitioner failed to prove
significant limitations in adaptive behavior under Virginia law
notwithstanding conflicting evidence).FN5
FN4. To the extent that Walker challenges the
adequacy of the district court's findings, we find no error. The
district court listed the characteristics that it felt militate against
finding that Walker met his burden. The court noted Walker's criminal
history, his social relationships, his practical skills, and his ability
to navigate the prison environment, among other evidence, as supporting
its judgment. Moreover, the court heard from competing experts, and its
decision suggests that it credited the testimony of the Commonwealth's
expert over those of Walker.
FN5. We also are unpersuaded by Walker's contention
that the judgment must be reversed because mentally retarded individuals
are capable of exhibiting many of the skills that the district court
relied on when it made its finding that he is not mentally retarded. As
noted, Walker bore the burden of proving significant limitations in
adaptive behavior, and he unsuccessfully attempted to meet that burden
during the evidentiary hearing. As we view his argument, he now
implicitly argues that the Commonwealth had some obligation to establish
that he does not suffer from significant limitations in adaptive
behavior. However, we rejected that view in Walker II. See 399 F.3d at
326 (“The state does not have a corollary duty to prove that a defendant
is ‘not retarded....’ ”).
Walker also claims that he was entitled to a jury
determination of his mental retardation and that the district court
erred by failing to empanel a jury. Although we previously rejected this
claim in Walker II, he contends that our prior decision is erroneous
based on what he perceives to be an intervening change in the law. We
disagree. Section 8.01-654.2 of the Virginia Code sets forth the
framework for the resolution of Atkins claims filed by petitioners, like
Walker, who were sentenced to death before April 29, 2003. It provides:
Notwithstanding any other provision of law, any
person under sentence of death whose sentence became final in the
circuit court before April 29, 2003, and who desires to have a claim of
his mental retardation presented to the Supreme Court, shall do so by
one of the following methods: (i) if the person has not commenced a
direct appeal, he shall present his claim of mental retardation by
assignment of error and in his brief in that appeal, or if his direct
appeal is pending in the Supreme Court, he shall file a supplemental
assignment of error and brief containing his claim of mental retardation,
or (ii) if the person has not filed a petition for a writ of habeas
corpus under subsection C of § 8.01-654, he shall present his claim of
mental retardation in a petition for a writ of habeas corpus under such
subsection, or if such a petition is pending in the Supreme Court, he
shall file an amended petition containing his claim of mental
retardation. A person proceeding under this section shall allege the
factual basis for his claim of mental retardation. The Supreme Court
shall consider a claim raised under this section and if it determines
that the claim is not frivolous, it shall remand the claim to the
circuit court for a determination of mental retardation; otherwise the
Supreme Court shall dismiss the petition. The provisions of §§
19.2-264.3:1.1 and 19.2-264.3:1.2 shall govern a determination of mental
retardation made pursuant to this section. If the claim is before the
Supreme Court on direct appeal and is remanded to the circuit court and
the case wherein the sentence of death was imposed was tried by a jury,
the circuit court shall empanel a new jury for the sole purpose of
making a determination of mental retardation.
If the person has completed both a direct appeal and
a habeas corpus proceeding under subsection C of § 8.01-654, he shall
not be entitled to file any further habeas petitions in the Supreme
Court and his sole remedy shall lie in federal court. Va.Code Ann. §
We explained in Walker II that on its face “the
Virginia statute does not provide for a jury for claims raised in
federal court.” 399 F.3d at 324. We also held that § 19.2-264.3:1.1(C),
which provides that “in any case in which the offense may be punishable
by death and is tried before a jury, the issue of mental retardation ...
shall be determined by the jury as part of the sentencing proceeding,”
does not entitle Walker to a jury determination because that section's
reference to a jury determination is “in the context of the appropriate
procedure at sentencing in state court.” Id. at 324-25.
Walker now argues that a subsequent Virginia case,
Burns v. Warden of Sussex I State Prison, 269 Va. 351, 609 S.E.2d 608
(2005), constitutes an intervening change in the law that establishes
his right to a jury. The issue in Burns was whether the jury provisions
of § 19.2-264.3:1.1 apply to a determination of mental retardation when
the Atkins claim is brought in a state habeas corpus proceeding.
Specifically, in Burns the Commonwealth argued that § 8.01-654.2 only
provides for a jury determination of an individual's mental retardation
claim when that claim is raised to the Virginia Supreme Court on direct
appeal. 609 S.E.2d at 610. The Virginia Supreme Court rejected that
argument, however, interpreting § 8.01-654.2 as requiring that the jury
provisions of § 19.2-264.3:1.1 “apply whether the claim is raised in a
direct appeal or as a habeas corpus petition.” 609 S.E.2d at 610.
Walker claims that Burns has somehow clarified that
the jury provisions of § 19.2-264.3:1.1 are a substantive component of
his rights under Atkins that must be applied to his case. We disagree.
Burns squarely holds that the jury provisions of § 19.2-264.3:1.1 apply
to mental retardation claims that proceed in state court, regardless of
whether they are raised on direct review or in a state habeas proceeding.
This is wholly consistent with the language of § 8.01-654.2, which
expressly states that “[t]he provisions of §§ 19.2-264.3:1.1 and
19.2-264.3:1.2 shall govern a determination of mental retardation made
pursuant to this section”-referencing claims brought in state court.
Burns does not address the language that our panel found to be
controlling when Walker originally raised this claim-specifically, the
provision providing that: “If the person has completed both a direct
appeal and a habeas corpus proceeding under subsection C of § 8.01-654,
he shall not be entitled to file any further habeas petitions in the
Supreme Court and his sole remedy shall lie in federal court.” §
In short, Burns merely clarifies that the jury
provisions of § 19.2-264.3:1.1 apply to all Atkins claims brought in a
state court proceeding, both on direct review and state habeas review.
This does not affect our prior determination that Walker is not entitled
to a jury in this case because he is in federal court. Accordingly, the
district court did not err by refusing to empanel a jury to determine
Walker's mental retardation claim.
Based on the foregoing, we affirm the judgment of the
GREGORY, Circuit Judge, concurring in part and
dissenting in part:
In Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct.
2242, 153 L.Ed.2d 335 (2002), the Supreme Court held that the imposition
of the death penalty on individuals with mental retardation violates the
Eighth Amendment. While the Supreme Court “le[ft] to the States the task
of developing appropriate ways to enforce the constitutional restriction
upon their execution of sentences,” id. at 317, 122 S.Ct. 2242 (quoting
Ford v. Wainwright, 477 U.S. 399, 405, 416-17, 106 S.Ct. 2595, 91 L.Ed.2d
335 (1986)) (internal quotations omitted), it surely set some floor for
determining who is mentally retarded.
The Supreme Court found that “[b]ecause of their
disabilities in areas of reasoning, judgment, and control of their
impulses, ... [mentally retarded persons] do not act with the level of
moral culpability that characterizes the most serious adult criminal
conduct. Moreover, their impairments can jeopardize the reliability and
fairness of capital proceedings against mentally retarded defendants.”
Id. at 306-07, 122 S.Ct. 2242. Thus, there is a substantive component of
the Eighth Amendment that must not be eviscerated by judicial
interpretation of state definitions of mental retardation. Yet, today's
result allows the Commonwealth to defeat any mental retardation claim,
no matter how compelling in its entirety, by cherry picking evidence
relevant to a single component of Virginia's definition. This does
satisfy Atkins' mandate.
While I agree that both prongs of the Virginia
definition must be satisfied for a defendant to prove mental retardation,
I depart from the majority's assertion that each component of the
definition may always be read in isolation. The Virginia statute itself
states that the defendant must “prov[e] that he is mentally retarded by
a preponderance of the evidence” and not that the defendant must prove
each component by a preponderance of the evidence. Va.Code Ann. §
19.2-264.3:1.1(C) [hereinafter Section 3:1.1]. Furthermore, though we
are guided by state law, this Court has an obligation to fulfill the
federal Supreme Court directive from Atkins that persons with mental
retardation shall not be executed. The spirit of Atkins cannot be upheld
by an interpretation of a mental retardation definition that ignores
vast quantities of relevant evidence as well as blatant constitutional
violations that prevent a petitioner from presenting his claim. For
example, it must not be that a court tasked with following Atkins may
find it immaterial that the defendant was diagnosed as mentally retarded
by scoring more than two standard deviations below the mean on an I.Q.
test, regardless of how low the score, simply because a defendant can
have intimate relations with a woman or obtain a driver's license.
The majority cites to our decision in Green v.
Johnson, 515 F.3d 290 (4th Cir.2008) to support its conclusion that it
is unnecessary to reach Walker's intellectual functioning arguments. In
Green, we found that under Virginia law, “Green must prove both prongs
of Virginia's statutory definition for mental retardation in order to
establish that he is mentally retarded.” Id. at 301 (citation omitted).
We then affirmed the district court's dismissal of petitioner's Atkins
claim based on evidence relevant to the adaptive functioning prong of
Virginia's definition of mental retardation. Id. at 301-03.
I believe Green comes perilously close to the
substantive floor set in Atkins by seemingly analyzing the two prongs of
the Virginia definition independently.FN1 In Green, however, we affirmed
the dismissal of the mental retardation claim only after finding that
“the district court's (and magistrate judge's) consideration of the
evidence [relevant to petitioner's adaptive functioning] was thorough.”
Id. (“The magistrate judge set forth in detail the expert testimony
presented by both sides at the evidentiary hearing and explained its
findings and conclusions with respect to [petitioner's] adaptive skills.”).
Thus, although close, the constitutional floor set in Atkins was
protected by a thorough and complete review of petitioner's evidence of
mental retardation. The same cannot be said of the case before us now.
FN1. Green at least analyzes both prongs. This Court
in Green, in contrast to the majority here, undertook an analysis of the
intellectual functioning prong as an alternative basis for its holding.
515 F.3d at 300. In this capital case, a case that has generated an
appellate record of over 2,300 pages, the district court's opinion
spanned fewer than ten pages. In particular, the district court's
“consideration of the evidence” on the adaptive functioning prong in
this case amounted to at most three sentences. J.A. 2370-71. Based on
this record, we cannot have the degree of confidence required to affirm
the district court's dismissal of Walker's Atkins claim by looking
exclusively to the adaptive functioning prong.
Furthermore, this Court in Green was not faced with
serious errors by the district court that affected the petitioner's
ability to present his mental retardation claim in the first instance: a
blatant due process violation affecting Walker's ability to present
evidence of significantly subaverage intellectual functioning and a
failure by the district court to consider Walker's evidence of generally
accepted professional practices in interpreting the results of
intellectual functioning tests. These errors cannot be harmless, as the
majority finds, when the floor set by Atkins is not secure.
Nor did we face in Green a case in which the district
court specifically failed to adhere to a previous order from this Court.
In Walker v. True II, 399 F.3d 315 (4th Cir.2005), we described the
nature of the evidentiary hearing that Walker should have been afforded
on remand: “Walker is entitled under law both to an evidentiary hearing
in which he is afforded an opportunity to fully develop the factual
basis of his mental retardation claim and to consideration by the courts
of all of the evidence that is relevant to that claim under Virginia's
statutory framework.” Id. at 327 (internal citations omitted) (emphasis
added). If our decision in Walker v. True II is to have any significance,
we must remand this case so that Walker may receive the consideration to
which he is entitled.
Because I find that the district court committed
clear error by not properly considering Walker's evidence of significant
limitations in adaptive behavior, I also consider Walker's claims on the
intellectual functioning prong. On that prong, I find both that the
district court violated Walker's procedural due process rights and erred
in failing to consider Walker's evidence of generally accepted
professional practices in interpreting the results of intellectual
functioning tests. Based on these errors, this Court should remand for
the district court to consider all evidence relevant to Walker's Atkins
claim. Moreover, I do not read our precedent to mean that any evidence
on one prong, no matter how slight, may always be cited by the district
court to preclude our review of a petitioner's full Atkins claim under
Virginia law. Atkins requires a reasonable appellate review to uphold
the constitutional proscription of the use of capital punishment on
offenders who are mentally retarded. Thus, I respectfully dissent from
section II of this opinion.
On this record, I would find that the district court
committed clear error by not properly considering Walker's evidence of
significant limitations in adaptive behavior. Based on this error alone,
I believe this Court has an obligation to consider Walker's claim that
his due process rights were violated and his claim that the district
court failed to follow this Court's previous decision and consider
Walker's evidence of generally accepted professional practices in
interpreting intellectual functioning tests' results.
The majority finds that Walker's Atkins claim fails
because Walker possesses some adaptive skills. However, the district
court made no finding that Walker was unequivocally functioning at such
a level that he could not be classified as a person with mental
retardation. The district court simply parroted several findings of the
Commonwealth's expert that should have been considered along with all
other evidence proffered on the issue of adaptive functioning. This
three-sentence reasoning by the district court should not withstand any
level of scrutiny.
While the district court acknowledged that Walker
“suffers from below average mental intelligence, struggles to perform
some basic activities, exhibits anti-social behavior, and obtains
financial support from others,” the court dismissed Walker's claim by
citing evidence that he “has committed various crimes requiring the
ability to relate to others, associated with women on a personal and
intimate level, engaged in homemaking activities, seduced under-aged
girls, used others to help him avoid authorities, independently invoked
his Miranda rights, used his brother's identity to obtain a driver's
license, and obtained goods for himself while in prison.” J.A. 2370-71.
Although the clear error standard under which we
review the district court's findings is quite deferential, this Court
may reverse the district court where its determination was “made without
properly taking into account substantial evidence to the contrary.”
Miller v. Mercy Hosp., Inc., 720 F.2d 356, 361 (4th Cir.1983). Thus, the
question here is whether the district court properly took into account
Walker's expert testimony regarding his limitations in adaptive behavior.
In its decision, the district court did not
specifically discuss any of Walker's evidence; instead, it merely
summarized the testimony of the Warden's expert, Dr. Hagan. On its face,
this seems like a classic “battle of the experts,” and thus it would be
extremely difficult to find that the district court erred in believing
one expert's testimony over another.FN2 However, the district court did
not purport to lend more credence to Dr. Hagan's testimony than to
Walker's experts. Rather, the court apparently found that Dr. Hagan's
testimony somehow negated Walker's showing of significant limitations in
adaptive behavior. But as Walker's experts testified, the activities
cited by the district court are entirely consistent with mental
retardation.FN3 This adheres to the logic that the American Association
on Mental Retardation (“AAMR”) says one must follow when applying the
definition of mental retardation:
FN2. Indeed, this is the majority's interpretation of
the district court's opinion. Supra at 328. However, even the majority
seems to assume that the court credited Dr. Hagan's testimony over
Walker's experts' testimony. FN3. Thus, the district court was not
necessarily “presented with conflicting evidence,” as the majority
states. Supra at 328. “Within an individual, limitations often coexist
with strengths.” This means that people with mental retardation are
complex human beings who likely have certain gifts as well as
limitations. Like all people, they often do some things better than
other things. Individuals may have capabilities and strengths that are
independent of their mental retardation. AAMR, User's Guide: Mental
Retardation: Definition, Classification, and Systems of Support 8 (10th
ed. 2002) (2007). In particular, individuals with mental retardation can
have intimate relationships, perform homemaking activities, craft simple
lies, and invoke FN4 their Miranda rights. With regard to the crime
cited by Dr. Hagan which purportedly demonstrated that Walker had the
“ability to relate to others,” Walker's expert testified that his
execution of the scheme, including giving the victim his phone number,
did not demonstrate a high level of cognitive or conceptual ability.
FN4. In fact, the record indicates that Walker did
not affirmatively invoke his Miranda rights but rather merely remained
silent. Because the district court did not properly consider Walker's
evidence of significant limitations in adaptive behavior, the district
court committed clear error. This basis is sufficient for this Court to
proceed to Walker's arguments on the intellectual functioning prong. In
addition, I believe that Atkins requires more in this case than simply
relying on the Commonwealth's evidence of Walker's adaptive functioning,
to the exclusion of all else, in order to dismiss Walker's claim of
Because the majority relies only on the
Commonwealth's evidence of Walker's adaptive functioning, it fails to
recognize a blatant due process violation by the district court. This
constitutional violation resulted in the exclusion of two empirical
tests that satisfied the intellectual functioning component of
Virginia's definition of mental retardation, thus preventing Walker from
fully developing the basis for his claim, in contradiction of our
previous decision in Walker v. True II, 399 F.3d at 327.
In order to establish “significantly subaverage
intellectual functioning,” Virginia requires the “administration of at
least one standardized measure generally accepted by the field of
psychological testing.” Section 3:1.1(B)(1). The statute further directs
the Commissioner of Mental Health, Mental Retardation and Substance
Abuse Services (the “Department”) to “maintain an exclusive list of
standardized measures of intellectual functioning generally accepted by
the field of psychological testing.” Id.
On January 4, 2005, the Department published the
exclusive list of standardized measures as required by Section 3:1.1 (the
“January list”). It is undisputed that the January list was in effect at
the time that this Court reversed the district court's dismissal of
Walker's petition. Included in the January list were three standardized
tests administered to Walker: the Comprehensive Test of Nonverbal
Intelligence (“CTONI”), the General Ability Measure for Adults (“GAMA”),
and the Wechsler-series tests.
Walker's scores on two tests, the GAMA and CTONI,
were indisputably two standard deviations below the mean, and both of
those tests were included in the January list. Walker relied on the
January list in developing the record to support his Atkins claim, and
Walker was required to submit all expert disclosures by September 7,
2005. The Department only publishes its list on its website, and
according to Walker, the January list remained posted until after the
commencement of Walker's evidentiary hearing, which began on November 1,
2005. On the first day of the hearing, Dr. James Morris, the Director of
the Office of Forensic Services for the Department and the person with
“final responsibility for what's included or not included on the list,”
J.A. 1598, testified that the GAMA qualified as an approved measure on
Virginia's published list. Dr. Morris also testified that the public
could rely on the list that was published on the Department's website,
which contained both the GAMA and the CTONI.
Then, in January 2006, after the close of the
evidence, the Warden filed a post-hearing brief. This brief referenced a
new list of I.Q. tests approved by the Department for use in capital
proceedings. That new list (“the October list”) bore a date of October
31, 2005, which was the day prior to Walker's hearing. According to
Walker, neither the Warden nor Dr. Morris disclosed the existence of the
new list to the district court or himself before this post-hearing brief.
The October list did not include either the GAMA or the CTONI as
Following the evidentiary hearing, the district court
found that Walker could not prove that he scored two standard deviations
below the mean on an approved measure. In reaching this conclusion, the
district court relied on the October list and excluded Walker's scores
on the GAMA and CTONI. Under the Due Process Clause of the Fifth
Amendment to the United States Constitution, no person shall be
“deprived of life, liberty, or property, without due process of law.” At
a minimum, procedural due process requires both fair notice and an
opportunity to be heard. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct.
893, 47 L.Ed.2d 18 (1976); Mullane v. Cent. Hanover Bank & Trust Co.,
339 U.S. 306, 314-15, 70 S.Ct. 652, 94 L.Ed. 865 (1950). In order to
determine whether an individual has received fair notice, this Court
“must examine the relevant facts of each case.” United States v. Hoechst
Celanese Corp., 128 F.3d 216, 224 (4th Cir.1997). While “[g]enerally,
ignorance of the law or a mistake of the law is no defense,” courts will
determine “fair notice” by examining whether particular persons would
reasonably know the consequences of their conduct. See id. (internal
citations and quotations omitted); see also Goodman v. United States,
151 F.3d 1335, 1337 (11th Cir.1998) (per curiam).
This concept of fair procedure is of “special
importance ... in the capital sentencing context.” Lankford v. Idaho,
500 U.S. 110, 125, 111 S.Ct. 1723, 114 L.Ed.2d 173 (1991). This Circuit
has impliedly recognized this concept as well. In United States v.
Barnette, 211 F.3d 803, 824 (4th Cir.2000), this Court vacated a death
sentence where the defendant was unable to present surrebuttal evidence
to counter rebuttal evidence of an aggravating factor because such an
action violated the concept of “simple fairness.”
The district court excluded two of Walker's I.Q. scores that
indisputably were two standard deviations below the mean. In applying
the October list instead of the January list without affording Walker
the opportunity to develop evidence of mental retardation in accordance
with the October list, the district court thus violated Walker's
procedural due process rights.
The district court also determined that Walker failed
to show that he was mentally retarded before age eighteen. In
particular, the district court found that [e]ach WISC-R [“Weschler
Intelligence Scale for Children-Revised”] administered to Petitioner
before the age of eighteen supports a finding that Petitioner, while
suffering from below average mental intelligence, is not mentally
retarded. The evidence presented by Petitioner of his below average
mental intelligence and limitations in conceptual, practical, and social
skills do not constitute mental retardation or outweigh the results of
the three WISC-R administrations in 1982, 1984, and 1987. J.A. 2368.
Apparently, the district court did not consider the impact of the Flynn
effect and Standard Error of Measurement (“SEM”) on the 1984
administration of the WISC-R.FN5 See id.
FN5. Dr. Daniel Reschly testified that the Flynn
effect and SEM should be considered in interpreting I.Q. scores, and
thus Walker's score of seventy-six on the 1984 administration of the
WISC-R would be within the range of mental retardation. I.Q. tests are
almost universally scaled so that the mean for the population is 100,
with a standard deviation of fifteen. For such tests, an individual must
score seventy or lower for the score to be at least two standard
deviations below the mean. However, several phenomena have been
identified that may be considered for purposes of adjusting or
interpreting I.Q. scores. The Flynn effect is the theory that I.Q. tests
rise by .3 points per year after they are normed, and thus one must
consider when an individual is administered an I.Q. test compared to
when that test was last normed. The SEM is an interpretative tool that
reflects the idea that I.Q. scores have a ninety-five percent confidence
interval, and thus an individual's true score is somewhere within a five-point
range of the reported score. I find that the district court erred in
determining that the 1984 WISC-R full scale score of seventy-six could
not satisfy the intellectual functioning prong of the Virginia mental
retardation definition. For its part, the district court did not express
any opinion regarding whether the Flynn effect could be taken to
account,FN6 but rather found that this Court's decisions in Walton v.
Johnson, 440 F.3d 160 (4th Cir.2006), and Hedrick v. True, 443 F.3d 342
(4th Cir.2006), foreclosed consideration of the SEM.
FN6. The failure to consider the Flynn effect itself
was error because this Court in Walker v. True II, 399 F.3d at 323, held
that “on remand the district court should consider the persuasiveness of
Walker's Flynn Effect evidence.” The district court rejected Walker's
contention that his 1984 WISC-R full scale score of seventy-six could
support his claim of mental retardation because it interpreted this
Court's decisions in Walton and Hedrick as standing for the proposition
that courts should “refus[e] to use the standard error of measurement to
lower IQ scores in Atkins cases due to the inherent speculation of using
the standard error of measurement to lower an IQ score when it could
just as likely be used to raise an IQ score.” J.A. 2370. However, the
district court misconstrued the import of these two decisions. In Walton,
this Court found that the petitioner's claim regarding the SEM should be
dismissed because “Walton does not explain what this ‘standard error of
measurement’ is or why it should reduce his particular score to 70 or
less. Walton can only speculate that this standard measure error ...
actually lowered his given score of 77 enough to meet Virginia's mental
retardation standard.” 440 F.3d at 178. Similarly, in Hedrick, the Court
declined to consider the SEM because the petitioner did not provide
expert evidence regarding the application of the SEM, and thus “only
speculation on [the Court's] part would lower Hedrick's IQ score of 76.”
443 F.3d at 368. Fairly read, Walton and Hedrick stand for the
proposition that bare allegations, without more, are insufficient to
state a claim for Atkins relief, and the decisions do not imply that the
SEM can never be considered on account of “inherent speculation.”
Nor can the district court's ruling be sustained on
the ground that Walker provided no evidence on the accepted professional
practice regarding the SEM. The definitions of mental retardation
promulgated by the AAMR and the American Psychiatric Association state
that the SEM should be considered in diagnosing mental retardation. J.A.
879, 888-89. Moreover, Walker's experts testified that the SEM creates a
band of approximately five points around a particular I.Q. score, which
means that an individual who scores within five points of two standard
deviations below the mean should be diagnosed as having mental
Had the district court taken into account the Flynn
effect and SEM, Walker's score of seventy-six on the 1984 WISC-R may
have been two standard deviations below the mean. Given this, the
district court erred in not considering this score for purposes of
subaverage intellectual functioning or for onset before the age of
eighteen. In particular, even if a score such as this is not conclusive
proof of subaverage intellectual functioning, it is certainly consistent
with onset before the age of eighteen, and thus it should have been
considered in that regard. Thus, the district court erred in
interpreting our precedent as foreclosing consideration of the SEM in
assessing scores on I.Q. tests and in not considering the Flynn effect.
Like the due process violation, these errors thwarted Walker's efforts
to develop the basis for his mental retardation claim, in contradiction
of our previous decision in Walker v. True II, 399 F.3d at 327.
The Supreme Court has unambiguously held that a
person with mental retardation can not be executed. I fear that the
substance of this constitutional prohibition is put in jeopardy by
affirming a district court's dismissal of an Atkins claim based on scant
evidence exclusively relevant to the adaptive component of a state's
mental retardation definition where, as here, the empirical tests
forming the basis of the intellectual functioning component were
excluded. Accordingly, I would find that in this case, the district
court erred by finding that Walker had not shown significant limitations
in adaptive behavior without meaningfully considering Walker's expert
testimony in that regard, applying the October list without giving
Walker the opportunity to develop and present evidence in accordance
with the new list, and refusing to consider Walker's evidence of
generally accepted professional practices in interpreting the results of
intellectual functioning tests, in particular his evidence regarding the
SEM. On this basis, I must dissent.