Supreme Court of Virginia

Zirkle v. Commonwealth

Summary:

Zirkle had an ongoing relationship with Barbara Schifflett, who was the mother of their 4 year old daughter, Christina Zirkle.

In 1999 Barbara broke off the relationship due to abuse and obtained protective orders against Zirkle, who was eventually ordered to serve time behind bars for repeatedly violating four protective orders after the breakup.

Zirkle stewed in jail for 2 months and planned deadly revenge on her and her daughters, according to testimony from a fellow inmate. He made good on his plans days after his release.

His 14 year old step-daughter Jessica Schifflett was babysitting for Christina when Zirkle broke into the home on August 2, 1999. Jessica told Zirkle that he wasn't supposed to be in the home. Jessica refused to let Zirkle take Christina from the home and he stabbed her in the neck with a serrated knife.

He then kidnapped the 4-year-old and on his way to Page County, stopped to call Barbara at her job in Harrisonburg and told her to "Live in hell, bitch."

Zirkle drove Christina to a mountain overlook in the George Washington National Forest, where he stabbed her to death with the same kitchen knife used against Jessica and then tried to kill himself.

He recovered from his wounds, gave a confession, pled guilty to the murders, and waived appeals.

Citations:

Zirkle v. Commonwealth, 553 S.E.2d 520 (Va. 2001) (Direct Appeal) (Rockingham County).
Zirkle v. Commonwealth, 551 S.E.2d 601 (Va. 2001) (Direct Appeal) (Page County).

Final Meal:

None.

Final Words:

"I would just like to say that I'm sorry to everyone who's been hurt in this tragedy that I've had. I also want to thank my family for their love and support, my lawyers, my preacher, for their help in getting me through this. I want my soulmate Gracie to know that I love her with all of my heart and soul and I will always be with her."

ClarkProsecutor.org

Virginians for Alternatives to the Death Penalty

In September 2000, Daniel Lee Zirkle was sentenced to death for the murders of Christina Zirkle and Jessica Shifflett in August 1999. Zirkle was 31 years-old when the crime was committed.

The murders occurred on August 2, 1999. Jessica Shifflett was babysitting Christina at their home in Mount Crawford. Zirkle stabbed to death 14 year-old Jessica (his step-daughter) and abducted four year-old Christina (his daughter).

Zirkle then drove to Rockingham County. At an overlook in the George Washington National Forest, Zirkle slit Christina’s throat then tried to take his own life.

His motive in the murders was to get back at Barbara Shifflett, the girls’ mother. Barbara Shifflett and Zirkle had lived together for six years. Just prior to the August murders the two had separated.

Police had responded to several domestic violence calls from the residence. On the day of the murders, Barbara had gone to the Rockingham County Sheriff’s Office to have a warrant sworn out against Zirkle.

When Barbara returned home, she found Jessica dead. Sheriffs discovered Zirkle, with Christina’s body, a short while later.

On July 17, 2000, Daniel Lee Zirkle pleaded guilty to the murders. Zirkle was sentenced to death in Page County for the killing of his daughter and received a sentence of death in Rockingham County for the killing of Shifflett. Zirkle has been on death row since August 28, 2000.

Virginia Governor Warner Press Release

Statement by Governor Warner Regarding the Scheduled Execution of Daniel Lee Zirkle:

RICHMOND — Governor Mark R. Warner tonight issued the following statement on the scheduled execution of Daniel Lee Zirkle by the Commonwealth of Virginia.

“Mr. Zirkle pled guilty to the capital murder of his four year old daughter, Christina M. Zirkle, in Page County Circuit Court. He pled guilty to the capital murder of his former girlfriend's 14 year old daughter, Jessica L. Shifflett.

The evidence shows that on August 2, 1999, Mr. Zirkle murdered both girls by slashing and stabbing them in the neck. The death sentences imposed on Mr. Zirkle were reviewed and affirmed by the Virginia Supreme Court.”

“I have not been asked to intervene in the case of Daniel Lee Zirkle, there are no legal challenges to this scheduled execution, and accordingly, I expect the court-ordered sentence to be carried out.”

ProDeathPenalty.com

In September 2000, Circuit Judge Porter R. Graves Jr. ordered Zirkle put to death for the August 1999 knife slaying of 14-year-old Jessica Shifflett.

Zirkle killed the teen at her home in Mount Crawford before abducting his daughter, 4-year-old Christina Zirkle, and stabbing her to death hours later on a mountain overlook in Page County.

After the sentencing, about 2 dozen friends and family members of Barbara Shifflett, Zirkle's ex-girlfriend and the slain girls' mother, shed tears and exchanged hugs. Zirkle already had been sentenced to death in Page County for killing his daughter.

But Barbara said she still supports the 2 additional orders for his execution. "He took their lives," said a tearful Barbara, struggling to find words. "He deserved no less." Said family friend Lisa Dofflemyer: "It doesn't fix anything, but justice was served." Graves handed Zirkle one death sentence for killing Jessica Shifflett and another for a separate count of killing within 3 years of committing another murder.

Zirkle acted out of rage at Barbara Shifflett, with whom he'd lived for several years until she broke off their relationship because of ongoing abuse around the beginning of 1999, according to court testimony.

Zirkle, ordered to serve time behind bars for repeatedly violating four protective orders Barbara obtained against him after their breakup, stewed in jail for 2 months and planned deadly revenge on her and her daughters, according to testimony from a fellow inmate.

He made good on his plans days after his release. Jessica was babysitting her little sister when Zirkle broke into the girl's home Aug. 2, 1999. Jessica told Zirkle that he wasn't supposed to be in the home.

Jessica refused to let Zirkle take Christina from the home and he stabbed her in the neck with a serrated knife. In his confession to police he said he sent Jessica to "a special place." He then kidnapped the 4-year-old and on his way to Page County, Zirkle stopped to call Barbara at her job in Harrisonburg and told her to "Live in hell, bitch."

Worried, Barbara left her job and went straight to the Rockingham County Sheriff's Office to have a warrant sworn out against Zirkle for ignoring the court order again.

But it was too late. Zirkle drove Christina to a mountain overlook in the George Washington National Forest, where he stabbed her to death with the same kitchen knife used against Jessica and then tried to kill himself.

When Barbara returned home, she found Jessica dead. Zirkle recovered from the self-inflicted stab wound and he admitted details of the murder plot to doctors. The only remorse that survived with him was his failure to kill Barbara Shifflett, according to other inmates' testimony.

During his court case, he made clear his wish to be put to death - precluding two scheduled jury trials with guilty pleas and giving his lawyers explicit orders not to present evidence that might convince the judges against the death penalty. Marsha Garst, Rockingham County's commonwealth's attorney, argued for the condemned killer to get the 2 additional death sentences.

"That is what the law demands, what the facts of this case demand and what justice demands," Garst said. "What is the price of Jessica Shifflett's life?" she asked Graves. "The commonwealth asks you to answer that question with one word: death."

In August 2000, a Page County judge sentenced Zirkle to die for stabbing Christina to death. During his argument for the death penalty, Page Commonwealth's Attorney John Hennessy recalled the statement of a jail inmate who served time with Zirkle last year.

Zirkle told the inmate about his intention to kill Barbara Shifflett and both of her daughters. "We know, now, that he was deadly serious," Hennessy told McGrath.

The prosecutor paused several times as he emotionally described the violent struggle that forensic evidence suggests Christina put up when she was killed.

Before his sentencing, Zirkle told Circuit Judge John J. McGrath Jr. that he was not in control during the incident and that he would forgive his ex-girlfriend's family for unspecified offenses against him. Several relatives of his slain daughter's mother gasped during Zirkle's statements.

Authorities had to remove 2 from the courtroom. Zirkle complimented his lawyers and reiterated to McGrath that the decision not to contest the capital murder charge against him or yesterday's death sentence was his.

He then talked about his belief that it is his obligation to the victims' family. "I have to forgive them because, if I don't, I won't get to where I want to go," he said, eliciting an outburst from a relative of Jessica's that led to her removal from court. Zirkle did not elaborate. "I know that the Lord knows what happened, I couldn't control," he said. "I have nothing to prove to anyone." When McGrath imposed the death sentence, a member of the victims' family stood and clapped emphatically in Zirkle's direction.

Authorities removed him from court. The name of the man who murdered Barbara Shifflett’s daughters doesn’t even exist in her vocabulary anymore. She’s replaced it with the word "evil."

Shifflett will be present tonight in this southeastern Virginia town near the Greenville Correctional Center, but she won’t watch Daniel Lee Zirkle be injected with a cocktail of lethal drugs. "I just need to know when I leave there that justice has been done," Shifflett said. "It should have been done three years ago when I tried to get help." She tried to get help nearly three years ago to stop Zirkle from killing her two daughters, Jessica, 14, and Christina, 4.

Violating a court order, he went to Shifflett’s home in Mount Crawford, murdered Jessica and kidnapped Christina. He took the little girl to Story Book Trail on Massanutten Mountain in Page County, where he killed her. "I guess I just don’t know what justice would even feel like," she said with a tired sigh. In Shifflett’s place, her brother and a close friend will witness Zirkle’s demise. It irks her when people talk about killing criminals humanely, by lethal injection, Shifflett said. "People put their animals down like that every day," she said. "I don’t see how what he did was so humane [to deserve an easy death]."

Throughout more than two years of incarceration, Zirkle has continued to scorch Shifflett with words. He has repeatedly told fellow inmates his only mistake was not killing Shifflett, too. But hardest to swallow were comments he made during court proceedings after he asked for the death penalty.

He told a judge and people in the Page County courtroom, "I’ll be with my girls. I’ll look over my family." Even today, the statement still makes Shifflett’s skin crawl. "I know that’s not going to happen," she said through sniffles. "He’s going to hell straight forward, full blast." Shifflett said Zirkle set out to take what meant the most to her — her girls, Jessi and Christina. "They meant more than life to me," she said, her voice quivering. "Never could I imagine being without them for a day, much less than going on three years."

Commonwealth’s Attorney Marsha Garst was charged with getting justice for Shifflett and her two girls. Having fought hard for the death penalty for Zirkle, she hopes the execution will bring Shifflett at least a little peace. During one court appearance, she called Zirkle’s act "revenge by a black heart."

For Garst, the case was a strange twist of fate, having attended Turner Ashby High School with the murderer. She wonders how someone she knew as a "punk" teen-ager turned into a cold-blooded murderer. But, in case Zirkle changed his mind and appealed his death sentence, Garst had a method to remind her of the lives he stole.

In the corner of her office, she kept cardboard evidence boxes from the case that contained enlarged photos of Christina Marie Zirkle and Jessica Leanne Shifflett, images that still haunt the prosecutor. Still, Garst won’t go to Jarratt to witness the last beats of Zirkle’s heart. "I don’t see it as part of my job," she said. She would "take no joy in seeing anyone die," even if she believed execution was richly deserved.

UPDATE: "I would just like to say that I'm sorry to everyone who's been hurt in this tragedy that I've had," Zirkle said after being led into the death chamber.

National Coalition to Abolish the Death Penalty

Daniel Zirkle - Scheduled Execution Date and Time: 4/2/02 9:00 PM EST

Daniel Zirkle, guilty of the murders of Jessica Shifflet and Christina Zirkle, is scheduled to be executed by the state of Virginia on April 2, 2002. Zirkle, voluntarily entered two guilty pleas and requested a death sentence.

Furthermore, Zirkle has waived the rest of his appeals and is heading towards a sure execution date, with no clemency proceedings in progress. Please write the state of Virginia in Zirkle’s behalf to protest this state-sanctioned suicide.

Amnesty International

April 1, 2002

Amnesty International Condemns Impending Execution of Daniel Zirkle.

(Washington, DC) – As Virginia prepares to execute its second “volunteer” death row prisoner this year, Amnesty International calls on Virginia Governor Mark Warner to respect human rights standards and commute his death sentence. Amnesty International USA members around the country and in Virginia are contacting the Governor to express concern that a second Virginia death row inmate has dropped his appeals and opted for execution.

“Cases of ‘consensual’ executions represent about one in eight of the more than 700 men and women executed since 1977, and serve to reiterate the cruelty and brutalizing futility of a government policy which toys with human life and responds to killing with further killing,” said Mona Cadena, Field Organizer for the Mid-Atlantic Regional Office of Amnesty International USA.

There may be many factors contributing to a prisoner’s decision not to pursue appeals against his or her death sentence, including mental disorder, physical illness, remorse, bravado, religious belief, the severity of conditions of confinement including prolonged isolation and lack of physical contact visits, the bleak alternative of life imprisonment without the possibility of parole, pessimism about the appeals prospects, or simply as a mechanism for the prisoner to gain control over a situation in which they are otherwise helpless.

Daniel Zirkle was sentenced to death for the murders of Christina Zirkle and Jessica Shifflett in August of 1999. He pleaded guilty to the murders in July of 2000. As an organization that works on behalf of victims worldwide, Amnesty International has the deepest sympathy for the family and friends of Christina Zirkle and Jessica Shifflett.

“Amnesty International is opposed to all executions as a violation of human rights standards; the death penalty is not merely an act, but a process of dehumanization, brutalization, and extermination,” said Cadena. “Society should not be numbed into accepting a process that classifies certain people as unworthy of life.”

Daniel Lee Zirkle

Richmond Times-Dispatch

July 19, 2000

VIRGINIA: Maintaining a death wish apparently reaching back to the fatal stabbing of his own daughter, Daniel Lee Zirkle instructed his lawyers yesterday not to present evidence that could save him from execution.

Page County Circuit Judge John J. McGrath Jr. scheduled sentencing for Aug. 28. McGrath could order Zirkle, 31, of Timberville, put to death for killing 4-year-old Christina Zirkle last year. On Monday, Zirkle waived his right to a trial by jury and pleaded guilty to the killing, consenting to the possibility of a death sentence.

After prosecutors presented evidence in favor of the death penalty, Zirkle's defense lawyers told McGrath their client had instructed them not to argue against the death penalty. McGrath spent several minutes instructing Zirkle on the jeopardy he faced in the sentencing proceeding. A sullen Zirkle affirmed the judge's instructions and indicated that he has made clear his wish to die.

Zirkle is slated to face another capital murder count in Rockingham County stemming from the death of his daughter's half-sister, 14-year- old Jessica Shifflett. Authorities believe Zirkle killed Shifflett Aug. 2 before allegedly abducting Christina and killing her in George Washington National Forest in Page County.

Daniel Lee Zirkle

Richmond Times-Dispatch

A Page County judge yesterday sentenced Daniel Lee Zirkle to die for stabbing his 4-year-old daughter to death atop a mountain overlook last year. Before his sentencing, Zirkle told Circuit Judge John J. McGrath Jr. that he was not in control during the incident and that he would forgive his ex-girlfriend's family for unspecified offenses against him. Several relatives of his slain daughter's mother gasped during Zirkle's statements. Authorities had to remove 2 from the courtroom.

Zirkle, 32, killed his daughter, Christina, the same day he killed Jessica Shifflett, his daughter's 14-year-old half-sister. A Rockingham County judge is scheduled to sentence him next month for Jessica's murder. Zirkle complimented his lawyers and reiterated to McGrath that the decision not to contest the capital murder charge against him or yesterday's death sentence was his.

He then talked about his belief that it is his obligation to the victims' family. "I have to forgive them because, if I don't, I won't get to where I want to go," he said, eliciting an outburst from a relative of Jessica's that led to her removal from court. Zirkle did not elaborate. "I know that the Lord knows what happened, I couldn't control," he said. "I have nothing to prove to [anyone]."

Zirkle lived with ex-girlfriend Barbara Shifflett until their relationship soured around the start of last year. In the months that followed, Shifflett obtained several restraining orders against him, which Zirkle violated several times in visits to her home in Mount Crawford.

In May 1999, he was convicted of violating protective orders and assaulting Shifflett. He was ordered to serve 2 months in jail. Jessica Shifflett was baby-sitting Christina. After the teen-ager told him he wasn't supposed to be at the home, Zirkle killed her and took Christina with him. He stabbed Christina to death on an overlook in George Washington National Forest and tried to take his own life.

When McGrath imposed the death sentence yesterday, another member of Shifflett's family stood and clapped emphatically in Zirkle's direction. Authorities removed him from court. Zirkle had stunned observers when he pleaded guilty in July to the capital murder charge in Christina's case and did the same a month later in Jessica's death, precluding scheduled jury trials and allowing the judges to sentence him to death or life in prison. He asked for the death sentence each time.

During his argument for the death penalty yesterday, Page Commonwealth's Attorney John Hennessy recalled the statement of a jail inmate who served time with Zirkle last year. Zirkle told the inmate about his intention to kill Barbara Shifflett and both of her daughters. "We know, now, that he was deadly serious," Hennessy told McGrath. The prosecutor paused several times as he emotionally described the violent struggle that forensic evidence suggests Christina put up when she was killed.

As the hearing closed, Zirkle raised his hand to get McGrath's attention. "Your honor," he said, calmly, "thank you."

Virginia Executes Man for Double Slaying

By Maria Sanminiatelli - DailyPress.com

AP - April 3, 2002

JARRATT, Va. -- Daniel Lee Zirkle apologized for killing his 4-year-old daughter and her 14-year-old half-sister before he was executed for his crimes.

Sitting stiffly inside the witness box and fighting back tears Tuesday night, the best friend of the girls' mother clutched pins with the children's pictures and watched their killer die. The woman, who asked to be identified only as Lisa, said she volunteered to witness on behalf of Barbara Jo Shifflett, the victims' mother.

Zirkle, 33, died by injection at the Greensville Correctional Center at 9:07 p.m. after apologizing to "everyone who's been hurt in this tragedy that I've had." Accompanied by a spiritual adviser, Zirkle walked into the death chamber shortly before 9 p.m. looking pale and shaking slightly but otherwise calm.

He was strapped to a gurney and thanked his family, his lawyers and his preacher for their support. "I want my soulmate Gracie to know that I love her with all of my heart and soul and I will always be with her," he added before receiving his first dose of the lethal drugs. "Thank you, Jesus," he said before exhaling deeply and then going still.

Zirkle killed his daughter, Christina, in Page County on Aug. 2, 1999. Earlier that day, he stabbed to death Jessica L. Shifflett, 14, in neighboring Rockingham County. Zirkle and Barbara Jo Shifflett, the mother of both girls, had lived together in Rockingham for about six years, until April 1999.

On Aug. 2, 1999, Zirkle had just been released from jail for violating a protective order by assaulting Shifflett. A Rockingham jail inmate testified that Zirkle said he was "going to take care of all three of them when he got out of there. If he couldn't have them, nobody else would. He said he was going to kill them, all three."

While Shifflett was at work, Zirkle went to her house, stabbed Jessica and took Christina to an overlook on Storybook Trail in Page County, where he stabbed the child to death and cut his own throat. Zirkle admitted killing both girls and asked for the death sentence at both trials.

He also refused to let his lawyers present mitigating evidence. He was sentenced to death for the capital murders of both girls, and he received a third death sentence for killing within three years of committing another murder--his daughter. Zirkle did not appeal his sentence.

He was the second person executed this year in Virginia and the 85th since the U.S. Supreme Court allowed states to resume capital punishment in 1976.

Zirkle v. Commonwealth, 551 S.E.2d 601 (Va. 2001) (Direct Appeal) (Page County).

A grand jury in Page County issued an indictment against Daniel Lee Zirkle charging him with the capital murder of Christina Marie Zirkle pursuant to Code § 18.2-31(12) the "willful, deliberate and premeditated killing of a person under the age of fourteen by a person age twenty-one or older."

Prior to impaneling a jury on the morning of the scheduled trial, Zirkle's counsel informed the circuit court that Zirkle desired to enter a plea of guilty to the indictment and that he had instructed counsel not to present any evidence.

After consulting with counsel, Zirkle was arraigned, and he entered a plea of guilty to the indictment. Before accepting the plea of guilty, the circuit court considered a proffer of the evidence that the Commonwealth would have adduced during the guilt phase of the capital murder trial. Zirkle concurred in the proffer.

The circuit court conducted an inquiry incident to the tendered plea, and the court concluded that Zirkle was mentally competent and fully capable of understanding the proceedings, and that he fully understood the nature and effect of his plea of guilty and the possible penalties that could be imposed upon him. The circuit court found that Zirkle's guilty plea was made freely, intelligently, and voluntarily. The court accepted Zirkle's plea and found him guilty of capital murder.

Pursuant to Code § 19.2-264.4 the circuit court proceeded with the penalty phase of the capital murder trial. At the beginning of the penalty phase, Zirkle's counsel informed the court that Zirkle had directed them not to present any mitigation evidence and that such direction was made against the advice of counsel.

The circuit court asked Zirkle whether he understood that he could introduce evidence in mitigation and whether he had instructed his counsel not to present mitigation evidence. Zirkle responded, "I have."

The Commonwealth presented its evidence. After considering the evidence and a report prepared by a probation officer pursuant to Code § 19.2-299 , the circuit court found that there is a probability that Zirkle would commit criminal acts of violence in the future that would constitute a continuing serious threat to society, and that his conduct in committing the offense for which he was charged was outrageously or wantonly vile, horrible, or inhuman in that it involved depravity of mind and an aggravated battery to the victim. The circuit court entered final judgment fixing Zirkle's sentence at death.

Zirkle directed his counsel not to appeal the judgment of the circuit court. We entered an order that required the circuit court to conduct an evidentiary hearing to determine whether Zirkle's decision to waive his appeal was voluntary and intelligent. We also directed that the circuit court obtain Zirkle's written waiver under oath and file it with the transcribed record of the hearing in the event the court determined that Zirkle's decision was voluntary and intelligent.

After conducting a hearing, the circuit court found that Zirkle "freely and voluntarily waived his right to appeal ... and that [Zirkle] is fully aware of the consequences." The circuit court obtained an executed written waiver of Zirkle's right of appeal, signed by Zirkle in open court and under oath. Even though Zirkle waived his appeal of right and directed his counsel not to participate in any appeals on his behalf, this Court must review the imposition of the sentence of death.

In accordance with well-established principles of appellate review, we will review the evidence in the light most favorable to the Commonwealth, the prevailing party below. Lenz v. Commonwealth, 261 Va. 451, 455, 544 S.E.2d 299, 301 (2001)

Barbara Jo Shifflett and Zirkle lived together in Rockingham County from 1992 until April 3, 1999. Barbara Shifflett was the mother of two children, Jessica L. Shifflett and Christina M. Zirkle. Daniel Zirkle was Christina's biological father. On April 3, 1999, Barbara Shifflett took her daughters to spend the night with her sister, Peggy S. Shifflett. When Barbara Shifflett returned to her home about 9:00 p.m., Zirkle was there in bed. "[H]e jump[ed] up out of the bed, and he bump[ed]" Barbara Shifflett in the chest and stated that he wanted his "f'ing girls home now."

Barbara Shifflett and Zirkle began to argue. She "picked up" a telephone and tried to call for help by "call[ing] 911." Zirkle "jerked" the telephone from her hand and pushed her against a fish tank. When Barbara Shifflett tried to use a different telephone to call for help, Zirkle "jerked the phone out of [her] hand" and shoved her against a sofa. Barbara Shifflett went into Jessica's bedroom and used a telephone to call the police.

After the police arrived, Barbara Shifflett left the home to spend the evening with her sister, Peggy Shifflett. Zirkle placed a telephone call to Peggy Shifflett's home, and Peggy Shifflett answered the telephone and hung up the receiver. Barbara Shifflett described this incident as follows: "And he called back, and [Peggy] told him that he could not speak to me, to please not call back. He calls again, and I told her to let me speak to him. So I spoke to him. And he said that he wanted his f'ing daughters home, and he wanted them home now. And I told him no, that we wasn't coming home. And he said ... [h]e said, 'Do you want a war? Have a war. You'll pay, you f'ing b--.' "

Barbara Shifflett obtained a protective order which police officers served on Zirkle that night. The protective order directed Zirkle to stay away from Barbara Shifflett and the home he shared with her. The next day, Barbara Shifflett and her sister went to Barbara's home to retrieve some items. While they were in the home, Zirkle, who had entered the house, attacked Barbara Shifflett.

Eventually, Zirkle fled, police officers arrived at the home, and Barbara Shifflett obtained arrest warrants against Zirkle for assault and battery and violating the protective order. After the warrants had been issued, Zirkle continued to place telephone calls to Barbara Shifflett, and during one conversation, he told her that she "would be sorry, that [she] would pay."

Subsequently, Zirkle was arrested and convicted of assault and battery and violating the protective order. Zirkle was sentenced to incarceration in the Rockingham County Jail. Ricky Lee Dean, who was confined in the Rockingham County Jail with Zirkle, testified that Zirkle stated: "[H]e was going to take care of all three of them when he got out of there. If he couldn't have them, nobody else would. He said he was going to kill them, all three."

About 2:30 p.m. on August 2, 1999, Zirkle, who had been released from jail, placed a telephone call to Barbara Shifflett while she was at work. Shifflett testified: "I was at work.... At 2:30 [Zirkle] calls me and tells me to live in hell, bitch."

Around 4:30 p.m. that day, Barbara Shifflett left work to obtain another protective order from a magistrate. When she returned to work that evening, Barbara Shifflett learned that Zirkle's mother had made an "urgent" telephone call to her. Barbara Shifflett called Zirkle's mother, who informed Barbara Shifflett that Zirkle "had Christina." Barbara Shifflett immediately left work and drove her car home to check on Jessica, who had been "watching" Christina. While en route to her home, Barbara Shifflett used her cellular telephone to call Jessica, but no one answered the telephone.

When Barbara Shifflett arrived at her home, she entered the house and began to search for Christina. Barbara Shifflett "holler[ed]" for Christina and Jessica. Barbara Shifflett went to Jessica's bedroom, and the door was closed. When she opened the door, Barbara Shifflett found Jessica's body on the floor. Barbara Shifflett "called 911." When police officers arrived at the Shifflett residence, they examined Jessica's body and informed Barbara Shifflett that Jessica was dead. The officers also informed Barbara Shifflett that Christina had been killed.

Peter Monteleone, an investigator with the Page County Sheriff's Department, was dispatched to the Storybook Trail in Page County on August 2, 1999. He had been informed by the dispatcher that a 30-year-old male, who had threatened to commit suicide, "had taken his daughter and gone to the trail."

As Monteleone walked down the paved trail, he observed that the wooden deck area at the end of the trail contained "fresh blood stains." Monteleone saw "the upper part of a male torso" and a child's leg. The child's body was lying face down on the male's chest, the male's left arm was over the child, and there was a knife lying "right off of [Zirkle's] right hand."

Monteleone determined that Zirkle was alive and kicked the knife away from his hand. Monteleone tried to determine whether the child had a pulse, and she did not. Monteleone observed wounds to Christina's body. Michael Todd Foltz, a member of a rescue squad, arrived at the scene, checked Christina's vital signs, and pronounced her dead. Zirkle, who had a self- inflicted wound to his neck, was transported to a hospital for treatment.

Detective Daniel Comer of the Rockingham County Sheriff's Department interviewed Zirkle. The defendant stated that he had taken a knife from his mother's home and that he used the knife to kill Jessica and Christina.

Ronald J. Jackson, an inmate who was incarcerated with Zirkle after Zirkle had been arrested for the murders of Jessica and Christina, gave the following testimony: "An officer came in, when Mr. Zirkle first entered into the pod. Maybe a week or two after he had entered, an officer came in to let [Zirkle] know that he was going to contribute to the car wash that was being given for his daughters' grave site and the stones. And as the officer came over and explained what he was going to do, Mr. Zirkle said, 'Well, tell that bitch I said checkmate.' And he ran his thumb across his throat, and looked dead at the officer." Dr. Frances Patricia Field, the assistant chief medical examiner for the Northern Virginia Medical Examiner's Office, qualified as an expert witness on the subject of forensic pathology. She performed an autopsy on the body of Christina Zirkle.

Dr. Field testified as follows: "[Christina] had a superficial incised, or cut wound under her chin. She had a gaping incised stab wound on the front of her neck. She had some abrasions on the front of her left shoulder, or lower neck region; a bruise at the back of her right neck; a small bruise on her right abdomen; some abrasions, or scraping of the skin, on the right hand and right knee; and a bruise on her lower right leg. And there was a pressure mark on her left knee."

Field stated that the stab wound to Christina's neck extended "to a depth of approximately two and three quarter inches. It went through the tracheal, or the air passage. It also went between two cervical vertebrae, between the bony parts, and cut the spinal cord in half."

Dr. Field opined that this type of stabbing motion involved considerable force. Dr. Field testified that Christina would have lived "for a very short period of time[,][o]nly a few minutes" after this wound was inflicted. The cause of Christina's death was the stab wound to the neck. The stab wound to the neck involved cutting and stabbing motions, and the abrasions and bruises on the back of Christina's neck and the base of her head indicated that she struggled when Zirkle stabbed her with the knife.

Dr. William Massello, the assistant chief medical examiner for Western Virginia, qualified as an expert witness in the field of forensic pathology. He performed an autopsy on Jessica Shifflett's body. He testified that her body had five stab wounds to the neck. Two wounds were on the left side and extended into the neck approximately three to five inches. These wounds "cut through a major artery, a major vein, and the back portion of the windpipe in the front of the neck. And in doing so, they created ... they would have caused a lot of external bleeding, bleeding into the windpipe, or the airway, and also bleeding into the supporting tissue and the muscles of the neck."

Jessica's body had two additional wounds on the front of the neck. Those wounds extended "into the muscle of the neck, and into a glandular structure ... called the thyroid gland, which regulates your metabolic rate." When asked whether he was able to determine which of the five wounds would have been lethal to Jessica, Dr. Massello responded: "I couldn't tell you which one. But I can tell you that one of the two, or both on the left side of the neck, were terribly, terribly lethal, and either one of those wounds would have caused death within many seconds, or a few minutes, after being inflicted." Dr. Massello testified that the types of injuries on the child's neck were consistent with the blade size and type of knife taken from Zirkle.

In 1988, Zirkle was convicted of armed robbery. Nancy Berry, the victim of the robbery, testified that Zirkle entered a store where she was employed as a cashier, displayed a butcher knife, and demanded that she "[g]ive [him] some money." Berry gave Zirkle money from a cash register, and he left the store.

Zirkle pled guilty in 1999 to possession of marijuana and was convicted of that offense. The Commonwealth presented evidence that Zirkle had also threatened and abused members of Barbara Shifflett's family.

Zirkle v. Commonwealth, 553 S.E.2d 520 (Va. 2001) (Direct Appeal) (Rockingham County).

A grand jury in Rockingham County issued three indictments against Daniel Lee Zirkle charging him with the following offenses: the capital murder of Jessica Shifflett "as part of the same act or transaction in which he unlawfully, feloniously, willfully, deliberately and with premeditation killed Christina Zirkle" in violation of Code § 18.2-31(7) ; the capital murder of Jessica Shifflett "within the three year period in which he unlawfully, feloniously, willfully and deliberately with premeditation killed Christina Zirkle" in violation of Code § 18.2-31(8) and breaking and entering in the daytime of a dwelling house with the intent to commit murder while armed with a deadly weapon in violation of Code § 18.2-90 (Zirkle was convicted of the capital murder of Christina Zirkle and sentenced to death. See Zirkle v. Commonwealth, 262 Va. 320, 551 S.E.2d 601 (2001) .

On August 16, 2000, Zirkle's counsel informed the circuit court that Zirkle desired to enter pleas of guilty to the indictments and to request that the court impose upon him a sentence of death. Zirkle's counsel told the circuit court that they had discussed the pleas with Zirkle "in great length" and that they disagreed with him, but that he desired to enter the guilty pleas over their objections. Zirkle further advised his counsel that he would not permit them to participate in the penalty phase of the proceedings by presenting mitigating evidence.

The circuit court examined Zirkle extensively regarding counsel's representations to the court, which Zirkle confirmed. Zirkle was arraigned, and he entered pleas of guilty to the indictments. The circuit court considered a proffer of the evidence that the Commonwealth would have adduced during the guilt phase of the trial of the capital murder charges and the non- capital charge. Zirkle agreed with the Commonwealth's proffer.

The circuit court conducted an inquiry incident to the tendered pleas and concluded that Zirkle was mentally competent and fully capable of understanding the proceedings. The court also found that Zirkle fully understood the nature and effect of his guilty pleas and the possible penalties that could be imposed upon him. The circuit court found that Zirkle's pleas were made freely, intelligently, and voluntarily.

The circuit court accepted Zirkle's pleas and found him guilty of capital murder as charged in the indictments and guilty of breaking and entering with the intent to commit murder while armed with a deadly weapon. Zirkle received a life sentence for his conviction of breaking and entering with the intent to commit murder while armed with a deadly weapon, and even though he filed a notice of appeal from that conviction, he does not challenge that conviction or sentence on appeal.

Pursuant to Code § 19.2-264.4 , the circuit court proceeded with the penalty phase of the capital murder trial. Zirkle instructed his counsel not to present mitigation evidence. The court directed Zirkle's counsel to prepare to present mitigation evidence in the penalty phase of the proceeding in the event that Zirkle subsequently changed his mind. Zirkle again instructed his counsel to refrain from presenting evidence in the penalty phase of the proceeding. The circuit court, on numerous occasions, asked Zirkle whether he desired to present evidence during the penalty phase of the proceeding, and on each occasion, Zirkle responded in the negative.

The Commonwealth presented its evidence. After considering the evidence and a report prepared by the probation officer pursuant to Code § 19.2-299 , the circuit court found that the Commonwealth had proven beyond a reasonable doubt that there is a probability based upon the evidence of prior history of the defendant and the circumstances surrounding the offense that Zirkle would commit criminal acts of violence that would constitute a continuing serious threat to society, and that his conduct in committing the offense was outrageously and wantonly vile, horrible and inhuman, in that it involved torture, depravity of mind or aggravated battery to the victim, Jessica Shifflett. The circuit court entered a final judgment fixing Zirkle's punishment at death.

Zirkle apparently directed his counsel not to appeal the judgment of the circuit court. His counsel filed "a motion for direction and guidance" in the clerk's office of this Court. We entered an order that required the circuit court to conduct an evidentiary hearing to determine whether Zirkle's decision not to pursue an appeal was voluntary and intelligent. We also directed the circuit court to obtain Zirkle's written waiver under oath and file it with the transcribed record of the hearing in the event the court determined that Zirkle's decision was voluntary and intelligent.

After conducting a hearing, the circuit court concluded that Zirkle's "directions to his [c]ounsel not to participate in the appeal process and his decision not to participate in the appeal process were intelligently, voluntarily, and knowingly made and that [Zirkle] is mentally competent to make the decision to waive his appeal rights." The circuit court obtained an executed written waiver of Zirkle's right of appeal, signed by Zirkle in open court and under oath.