In the early morning hours of April 27, 2001,
Christopher Scott Emmett beat his sleeping coworker John Langley to
death with the base of a brass motel room lamp in order to rob Langley
and use his cash to buy crack cocaine.
Weldon Roofing Company employed Emmett and Langley as
laborers for its roofing crews. During late April 2001, both men were
assigned to a project in the City of Danville and shared a room at a
local motel where the roofing crew was staying.
On the evening of April 26, 2001, Emmett, Langley,
Michael Darryl Pittman, and other members of the roofing crew cooked
dinner on a grill at the motel, played cards, and drank beer. During the
course of the evening, Langley loaned money to Emmett and Pittman, who
used the money to buy crack cocaine.
At approximately 11:00 p.m. that evening, Rainey
Bell, another member of the roofing crew, heard a noise he described as
"bang, bang" coming from the room Emmett and Langley shared. Shortly
after midnight, Emmett went to the motel office and asked the clerk to
call the police, saying that he had returned to his room, "seen blood
and stuff . . . and didn’t know what had took place."
The police arrived at the motel at 12:46 a.m. on
April 27, 2001 and accompanied Emmett back to his room. There they
discovered Langley’s dead body lying face down on Langley’s bed beneath
a comforter. Blood spatters were found on the sheets and headboard of
Langley’s bed, on the wall behind it, and on the wall between the
bathroom and Emmett’s bed. A damaged brass lamp stained with Langley’s
blood was discovered beneath Langley’s bed.
In his initial statement to police, Emmett denied
killing Langley. He stated that he had returned to the room and gone to
bed. Emmett claimed to have discovered the blood and Langley’s body
later that night when he got up to use the bathroom. Observing what
appeared to be bloodstains on Emmett’s personal effects, the police took
possession of Emmett’s boots and clothing with his permission.
Emmett suggested that the blood might be his own
because he had injured himself earlier in the week. Subsequent testing,
however, revealed that Emmett’s boots and clothing were stained with
Langley’s blood.
Later in the morning of April 27, Emmett voluntarily
accompanied the police to the Danville police station. There he agreed
to be fingerprinted and gave a sample of his blood. Emmett admitted to
the police that he had been drinking and using cocaine on the previous
evening.
Over the course of the next several hours, Emmett
related different versions of the events of the previous evening to the
police. He first implicated Pittman as Langley’s murderer, but
ultimately Emmett told the police that he alone had beaten Langley to
death with the brass lamp.
Emmett was given Miranda warnings and he gave a full,
taped confession. Emmett stated that he and Pittman decided to rob
Langley after Langley refused to loan them more money to buy additional
cocaine. Emmett stated that he struck Langley five or six times with the
brass lamp, took Langley’s wallet, and left the motel to buy cocaine.
"Based upon the amount of blood and bruising of
Langley’s brain tissue at the point of impact," the medical examiner
opined that "Langley was not killed immediately by the first blow from
the lamp, but might have been unconscious after the first blow was
struck and may have suffered ‘brain death’ prior to actual death."
At the conclusion of the guilt phase of Emmett’s
trial, Emmett was convicted by a jury of the capital murder and robbery
of Langley. At the separate sentencing hearing, the Commonwealth sought
the death penalty based upon Virginia’s statutory aggravating factors of
future dangerousness and of vileness based upon aggravated battery and
depravity of mind.
In support of the future dangerousness factor, the
prosecutor presented Emmett’s prior criminal history, to the extent it
could be determined. The prosecutor was unable to establish why Emmett
was incarcerated as a juvenile.
Emmett’s juvenile criminal record had been destroyed
pursuant to North Carolina procedure, and defense counsel intentionally
avoided opening the door to Emmett’s extensive juvenile criminal history.
The history presented consisted of juvenile convictions for felonious
larceny and for assault and battery arising from an incident in which
Emmett, while incarcerated in a maximum-security juvenile detention
facility, rushed a guard and locked him in a closet in order to escape.
In addition, the prosecutor presented evidence of an
adult conviction for involuntary manslaughter arising from an incident
in which Emmett, while driving a van in the wrong direction and under
the influence of alcohol, struck and killed a motorcyclist. Testimony
was presented that the drunken Emmett was smiling after the driver was
killed and told an officer "‘that there was no need to worry about the
man on the motorcycle. He was already dead, and that he, (Emmett) could
do nothing to help him.’"
As noted by the state court, the evidence showed that
Emmett lacked remorse for this earlier violent crime and for the current
case of killing a coworker. Indeed, Emmett himself confessed that he
killed Langley simply because it "just seemed right at the time." Such
lack of regard for a human life speaks volumes on the issue of future
dangerousness and leaves little doubt of its probability. In support of
the vileness factor, the prosecutor highlighted to the jury the
aggravated nature of the beating that Emmett inflicted upon his victim.
As noted by the state court, Emmett’s actions
demonstrated both aggravated battery and depravity of mind. Specifically,
"the use of a blunt object to batter the skull of the victim repeatedly
and with such force that blood spatters several feet from the victim is
clearly both qualitatively and quantitatively more force than the
minimum necessary to kill the victim."
Additionally, "the evidence established that Emmett
violently attacked a co-worker with whom he had apparently enjoyed an
amicable relationship. The brutality of the crime amply demonstrates the
depravity of mind involved in the murder of Langley."
Emmett v. Commonwealth, 264 Va. 364, 569
S.E.2d 39 (Va. 2002) (Direct Appeal).
Defendant was convicted following jury trial in the
Circuit Court, City of Danville, Joseph W. Milam, Jr., J., of capital
murder in the commission of a robbery and was sentenced to death. On
mandatory review of death sentence, the Supreme Court, Lawrence L.
Koontz, Jr., J., held that: (1) having waived right to appeal, defendant
could not assert that death sentence was improper merely on ground that
there may have been reversible errors committed at trial; (2) testimony
by victim-impact witnesses and minor misstatements by prosecutor during
closing argument at penalty phase did not unduly influence or prejudice
jury; (3) crime scene and autopsy photographs did not unduly prejudice
jury or improperly inflame jurors' passions; (4) defendant's prior
inconsistent statements were relevant to show consciousness of guilt and
did not unduly influence jury; (5) evidence supported aggravating
factors of future dangerousness and vileness; and (6) death sentence was
not disproportionate. Affirmed.
KOONTZ, Justice.
In a bifurcated trial conducted pursuant to Code §
19.2-264.3, a jury convicted Christopher Scott Emmett of the capital
murder of John Fenton Langley in the commission of robbery, Code §
18.2-31(4), and fixed Emmett's punishment at death. The trial court
imposed the death sentence in accordance with the jury's verdict. Code §
17.1-313(A) mandates that we review the imposition of a death
sentence.FN1
FN1. Emmett was also convicted of robbery and
sentenced to life imprisonment for that crime. Emmett noted an appeal of
his convictions, but on February 8, 2002 he filed a motion to withdraw
that appeal. Pursuant to the February 22, 2002 order of this Court, the
case was returned to the trial court with instructions to determine
whether Emmett's decision to waive his appeal was voluntarily and
intelligently made. At a hearing on March 4, 2002, the trial court
accepted Emmett's voluntary waiver of his right to appeal, finding that
he fully understood the consequences of doing so. On March 8, 2002, the
trial court entered an order to that effect and returned the record to
this Court in order that we might conduct the mandated review of
Emmett's death sentence.
BACKGROUND
Weldon Roofing Company employed Emmett and Langley as
laborers for its roofing crews. During late April 2001, both men were
assigned to a project in the City of Danville and shared a room at a
local motel where the roofing crew was staying.
On the evening of April 26, 2001, Emmett, Langley,
Michael Darryl Pittman, and other members of the roofing crew cooked
dinner on a grill at the motel, played cards, and drank beer. During the
course of the evening, Langley loaned money to Emmett and Pittman, who
used the money to buy crack cocaine.
At approximately 11:00 p.m. that evening, Rainey
Bell, another member of the roofing crew, heard a noise he described as
“bang, bang” coming from the room Emmett and Langley shared. Shortly
after midnight, Emmett went to the motel office and asked the clerk to
call the police, saying that he had returned to his room, “seen blood
and stuff ... and didn't know what had took place.”
The police arrived at the motel at 12:46 a.m. on
April 27, 2001 and accompanied Emmett back to his room. There they
discovered Langley's dead body lying face down on Langley's bed beneath
a comforter. Blood spatters were found on the sheets and headboard of
Langley's bed, on the wall behind it, and on the wall between the
bathroom and Emmett's bed. A damaged brass lamp stained with Langley's
blood was discovered beneath Langley's bed.
In his initial statement to police, Emmett denied
killing Langley. He stated that he had returned to the room and gone to
bed. Emmett claimed to have discovered the blood and Langley's body
later that night when he got up to use the bathroom.
Observing what appeared to be bloodstains on Emmett's
personal effects, the police took possession of Emmett's boots and
clothing with his permission. Emmett suggested that the blood might be
his own because he had injured himself earlier in the week. Subsequent
testing, however, revealed that Emmett's boots and clothing were stained
with Langley's blood.
Later in the morning of April 27, Emmett voluntarily
accompanied the police to the Danville police station. There he agreed
to be fingerprinted and gave a sample of his blood. Emmett admitted to
the police that he had been drinking and using cocaine on the previous
evening. Over the course of the next several hours, Emmett related
different versions of the events of the previous evening to the police.
He first implicated Pittman as Langley's murderer, but ultimately Emmett
told the police that he alone had beaten Langley to death with the brass
lamp.
Emmett was given Miranda warnings and he gave a full,
taped confession. Emmett stated that he and Pittman decided to rob
Langley after Langley refused to loan them more money to buy additional
cocaine. Emmett stated that he struck Langley five or six times with the
brass lamp, took Langley's wallet, and left the motel to buy cocaine.
PROCEEDINGS
Emmett was indicted for capital murder and robbery.
In the guilt-determination phase of a bifurcated jury trial beginning on
October 9, 2001, the Commonwealth presented evidence in accord with the
above-recited facts.
In addition, the Commonwealth presented evidence from
the medical examiner that based upon the amount of blood and bruising of
the victim's brain tissue at the point of impact, Langley was not killed
immediately by the first blow from the lamp. The medical examiner
conceded, however, that Langley might have been unconscious after the
first blow was struck and may have suffered “brain death” prior to
actual death.
After the jury convicted Emmett of capital murder and
robbery, during the penalty-determination phase of the trial, the
Commonwealth presented evidence of Emmett's prior criminal history. This
evidence included an account of an instance in which, while incarcerated
in a maximum-security juvenile detention facility, Emmett participated
in an escape that involved a guard being “rushed” and locked in a
closet.
In addition, the criminal history evidence showed
that while driving a vehicle under the influence of alcohol, Emmett was
involved in an accident in which the driver of a motorcycle was killed
in 1996. After the accident Emmett said “that there was no need to worry
about the man on the motorcycle. He was already dead, and that [Emmett]
could do nothing to help him.” Emmett was convicted of involuntary
manslaughter.
The Commonwealth also presented extensive victim-impact
testimony from members of Langley's family. Emmett objected to various
statements made by the victim-impact witnesses who appeared to urge the
imposition of the death penalty. The trial court sustained these
objections and directed the jury to disregard the statements. Emmett
presented evidence in mitigation from his mother, sister, and a family
friend.
Emmett's mother testified that Emmett's father had
been abusive, and “he just never took care of his family.” Both Emmett's
mother and sister testified that Emmett had become withdrawn in the
months prior to Langley's murder. The friend described Emmett as “a
caring person” who had helped her disabled husband with yard work and
had assisted her in caring for her son when he was injured and unable to
walk.
The jury returned its verdict imposing the death
sentence based upon both the statutory aggravating factors of future
dangerousness and vileness. Following consideration of a presentence
report, the trial court imposed the jury's sentence of death.
DISCUSSION
As we have previously noted, Emmett has voluntarily
waived his right to appeal his convictions and, thus, to have the
proceedings of his trial reviewed for reversible error. The Commonwealth
contends that this waiver bars Emmett from asserting that the death
sentence was imposed as a result of passion, prejudice, or other
arbitrary factors because certain evidence was erroneously admitted or
that certain remarks by the Commonwealth's Attorney during the penalty-phase
closing argument were improper and should have been stricken from the
record.
We agree with the Commonwealth that, having waived
his right of appeal, Emmett may not assert that his sentence of death is
improper merely on the ground that there may have been reversible errors
committed in his trial. We consistently adhere to the contemporaneous
objection requirement of our Rule 5:25 and the further requirement of
Rule 5:27 that trial error must be the subject of an assignment of
error. See, e.g., Overton v. Commonwealth, 260 Va. 599, 604, 539 S.E.2d
421, 423 (2000) (applying Rule 5:25 to failure to object to victim
impact testimony or introduction of photographs in Code § 17.1-313(C)
review of death sentence); George v. Commonwealth, 242 Va. 264, 284, 411
S.E.2d 12, 23-24 (1991), cert. denied, 503 U.S. 973, 112 S.Ct. 1591, 118
L.Ed.2d 308 (1992) (consolidation of charges not the subject of
assignment of error not considered in passion and prejudice review); see
also Rule 5:17(c). Emmett's waiver of appeal implicates both of these
procedural requirements for our review of potential trial errors, and we
decline to create an exception to these requirements.
However, “[t]he review process mandated by Code §
17.1-313(C) cannot be waived. Rather, the purpose of the review process
is to assure the fair and proper application of the death penalty
statutes in this Commonwealth and to instill public confidence in the
administration of justice.” Akers v. Commonwealth, 260 Va. 358, 364, 535
S.E.2d 674, 677 (2000).
The review process mandated by Code § 17.1-313(C)(1)
is meaningless without the recognition that the erroneous admission of
some evidence or some other error in an incident of trial might result
in a prejudicial verdict. Indeed, the import of the review mandated by
Code § 17.1-313(C)(1) is that a sentence of death may be imposed
erroneously as the result of passion, prejudice, or other arbitrary
factors even where there is, or could be, no finding of reversible error
in the trial proceedings.
Accordingly, in this case, while we will not consider
the merits of any assertion that evidence was improperly admitted or
that the Commonwealth's Attorney made improper statements, we will
nonetheless consider the potential impact such evidence and statements
may have had on the jury's decision to impose the death sentence.
Emmett makes several arguments in support of the
contention that the sentence of death was imposed upon him as the result
of passion, prejudice, or other arbitrary factors. Chiefly, he points to
the emotionally charged testimony of the victim's family members and
their statements that appeared to urge the imposition of the death
penalty. However, each time a victim-impact witness's testimony broached
this subject, Emmett objected, and the trial court instructed the jury
to disregard the witness's statement.
A jury is presumed to follow the instructions of the
trial court. Weeks v. Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 145
L.Ed.2d 727 (2000); LeVasseur v. Commonwealth, 225 Va. 564, 589, 304
S.E.2d 644, 657 (1983), cert. denied, 464 U.S. 1063, 104 S.Ct. 744, 79
L.Ed.2d 202 (1984). Accordingly, we do not believe that this testimony
unduly influenced or prejudiced the jury in its determination whether to
impose the death sentence.
In further support of his assertion that his death
sentence was imposed as a result of passion or prejudice, Emmett points
to misstatements by the Commonwealth's Attorney during his closing
argument in the penalty-determination phase of the trial to the effect
that any one of the blows to the victim could have proven fatal, and a
reference to Emmett's prior conduct as having occurred in a prison
rather than as in a maximum-security juvenile detention facility. He
further contends that the Commonwealth's Attorney intended to inflame
the jurors' passions by telling them that “nobody is safe from this guy”
and that Emmett is dangerous because “[h]e has nothing to lose.”
We agree that the Commonwealth's Attorney
mischaracterized the medical examiner's testimony and that he
inaccurately referred to the juvenile detention facility as a prison.
However, these misstatements were minor and not unduly prejudicial in
light of the trial court's instruction to the jury that the argument of
counsel was not evidence.
Reviewing the Commonwealth's Attorney's argument as a
whole, we do not believe that any of the instances cited by Emmett,
individually or cumulatively, created an atmosphere of passion or
prejudice that influenced the jury's sentencing decision. See Burns v.
Commonwealth, 261 Va. 307, 344, 541 S.E.2d 872, 896, cert. denied, 534
U.S. 1043, 122 S.Ct. 621, 151 L.Ed.2d 542 (2001).
Emmett further contends that crime scene and autopsy
photographs admitted into evidence were unduly gruesome and would have
inflamed the jury's passion in favor of imposing the death sentence.
While undoubtedly shocking and gruesome, photographs that accurately
depict the crime scene and the condition of the victim are relevant to
show motive, intent, method, malice, premeditation, and the
atrociousness of the crimes. Payne v. Commonwealth, 257 Va. 216, 223,
509 S.E.2d 293, 297 (1999).
They also are relevant to show the likelihood of
Emmett's future dangerousness. Id. Having reviewed these exhibits, we
cannot say that they would have unduly prejudiced the jury or improperly
inflamed the jurors' passions so as to taint their decision in favor of
imposing the death sentence.
Emmett also contends that the admission of his prior
inconsistent statements to the police denying responsibility for the
murder and attempting to shift the blame to Pittman was unduly
prejudicial. These statements were clearly relevant to show Emmett's
consciousness of guilt. See Rollston v. Commonwealth, 11 Va.App. 535,
548, 399 S.E.2d 823, 831 (1991) (“A defendant's false statements are
probative to show he is trying to conceal his guilt, and thus is
evidence of his guilt”); see also Carter v. Commonwealth, 223 Va. 528,
532, 290 S.E.2d 865, 867 (1982) (holding that trier-of-fact need not
believe a defendant's explanation of events and may infer consciousness
of guilt from his false testimony).
There is no indication in the record that the
Commonwealth introduced these statements for any improper purpose, and
we perceive nothing in the record to support the suggestion that the
jury was unduly influenced by this evidence in considering whether to
impose the death sentence.
Finally, Emmett asserts that the evidence was
insufficient for the jury to have found that either aggravating factor
necessary under Code § 19.2-264.2 to the imposition of a death sentence
was present in this case and, thus, that the sentence of death must have
resulted from passion, prejudice, or other arbitrary factors. There is
no merit to this assertion.
With regard to the future dangerousness predicate,
the Commonwealth introduced evidence of Emmett's prior participation in
an escape from a maximum-security juvenile detention facility, which
included an assault on a guard, and his subsequent conviction as an
adult for involuntary manslaughter. The evidence also showed that Emmett
lacked remorse for this earlier violent crime and for the instant
killing of a co-worker. Indeed, Emmett himself confessed that he killed
Langley simply because it “just seemed right at the time.” Such lack of
regard for a human life speaks volumes on the issue of future
dangerousness and leaves little doubt of its probability.
With regard to the statutory vileness predicate, the
Commonwealth's evidence supports two of the alternative circumstances
that can support a finding of vileness, i.e., aggravated battery and
depravity of mind. See Goins v. Commonwealth, 251 Va. 442, 468, 470
S.E.2d 114, 131, cert. denied, 519 U.S. 887, 117 S.Ct. 222, 136 L.Ed.2d
154 (1996) (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.” 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). The use of a blunt object to batter the skull of
the victim repeatedly and with such force that blood spatters several
feet from the victim is clearly both qualitatively and quantitatively
more force than the minimum necessary to kill the victim.
Emmett's actions also 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.” Id. The evidence established that Emmett violently
attacked a co-worker with whom he had apparently enjoyed an amicable
relationship. The brutality of the crime amply demonstrates the
depravity of mind involved in the murder of Langley. Cf. Akers, 260 Va.
at 364, 535 S.E.2d at 677.
Pursuant to Code § 17.1-313(C)(2) we must also
determine whether Emmett's death sentence is “excessive or
disproportionate to the penalty imposed in similar cases, considering
both the crime and the defendant.” Emmett first notes that Code §
17.1-313(E) directs this Court to consider “such records as are
available as a guide in determining whether the sentence imposed in the
case under review is excessive.” He asserts that because records of
unappealed capital murder convictions in which a sentence of life
imprisonment was imposed are not collected for consideration during our
proportionality review, the review is inadequate because the comparison
base is skewed in favor of the death penalty.
We have previously rejected this argument and
determined that the statute does not require us to collect data from
unappealed cases. Bailey v. Commonwealth, 259 Va. 723, 741-42, 529
S.E.2d 570, 580-81, cert. denied, 531 U.S. 995, 121 S.Ct. 488, 148 L.Ed.2d
460 (2000). In Bailey, we held that Code § 17.1-313(E) grants this Court
the discretion to determine what records to accumulate for our review
process and that, “so long as the methods employed assure that the death
sentence is not disproportionate to the penalty generally imposed for
comparable crimes, due process will be satisfied and the defendant's
constitutional rights protected.” Id.
Emmett further contends that sentencing bodies in the
Commonwealth generally have not imposed the death penalty in capital
murder cases where the predicate crime was robbery. In support of this
contention, Emmett asserts that a review of the 50 most recent capital
murder appeals in this Court would reveal that 17 of the 26 convictions
where robbery was the gradation offense resulted in life sentences.
Moreover, he contends that the facts of the cases in which life
sentences were imposed are comparable or similar to the facts involved
in his own crime or more egregious.
Our proportionality analysis encompasses all capital
murder cases presented to this Court for review and is not limited to
cases selectively chosen by a defendant. “The test is not whether a jury
may have declined to recommend the death penalty in a particular case
but whether generally juries in this jurisdiction impose the death
sentence for conduct similar to that of the defendant.” Stamper v.
Commonwealth, 220 Va. 260, 283-84, 257 S.E.2d 808, 824 (1979), cert.
denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980).
Additionally, the question of proportionality does not turn on whether a
given capital murder case “equal[s] in horror the worst possible
scenario yet encountered.” Turner v. Commonwealth, 234 Va. 543, 556, 364
S.E.2d 483, 490, cert. denied, 486 U.S. 1017, 108 S.Ct. 1756, 100 L.Ed.2d
218 (1988).
“The purpose of our comparative review is to reach a
reasoned judgment regarding what cases justify the imposition of the
death penalty.” Orbe v. Commonwealth, 258 Va. 390, 405, 519 S.E.2d 808,
817 (1999), cert. denied, 529 U.S. 1113, 120 S.Ct. 1970, 146 L.Ed.2d 800
(2000).
Although we cannot insure that “complete symmetry”
exists among all death penalty cases, “our review does enable us to
identify and invalidate a death sentence that is ‘excessive or
disproportionate to the penalty imposed in similar cases.’ ” Id. (quoting
Code § 17.1-313(C)(2)); see also Akers, 260 Va. at 365, 535 S.E.2d at
677. The purpose of performing a comparative review is not to search for
proof that a defendant's death sentence is perfectly symmetrical with
others, but to identify and invalidate a death sentence that is aberrant.
Orbe, 258 Va. at 405, 519 S.E.2d at 817.
Emmett's assertion that a raw statistical analysis of
the most recent capital murder cases reviewed by this Court involving
the gradation offense of robbery compels the conclusion that a sentence
of death would be inappropriate in his case represents an overly
simplistic and unwarranted application of the proportionality review
process.
We do include consideration of the predicate
gradation offense or status of the defendant or victim that elevates a
murder to a capital crime in narrowing our focus to determine
proportionality. However, we also take into account other factors
including, but not limited to, the method of killing, the motive for the
crime, the relationship between the defendant and the victim, whether
there was premeditation, and the aggravating factors found by the
sentencing body.
In doing so, we fulfill the statutory mandate to
consider “both the crime and the defendant.” By merely considering the
most recent capital murder cases appealed to this Court where the
gradation offense was robbery, Emmett has not based his argument on a
probative selection of prior cases, but on an incidental ratio that has
little or no bearing on the crime or the defendant in this case.
Having conducted the appropriate proportionality
review, we find that other sentencing bodies generally impose the death
penalty for comparable or similar crimes. See, e.g., Akers, 260 Va. 358,
535 S.E.2d 674; Graham v. Commonwealth, 250 Va. 79, 459 S.E.2d 97
(1995), cert. denied, 516 U.S. 997, 116 S.Ct. 535, 133 L.Ed.2d 440
(1995); Watkins v. Commonwealth, 238 Va. 341, 385 S.E.2d 50 (1989), cert.
denied, 494 U.S. 1074, 110 S.Ct. 1797, 108 L.Ed.2d 798 (1990); Stout v.
Commonwealth, 237 Va. 126, 376 S.E.2d 288, cert. denied, 492 U.S. 925,
109 S.Ct. 3263, 106 L.Ed.2d 609 (1989); Watkins v. Commonwealth, 229 Va.
469, 331 S.E.2d 422 (1985), cert. denied, 475 U.S. 1099, 106 S.Ct. 1503,
89 L.Ed.2d 903 (1986); Poyner v. Commonwealth, 229 Va. 401, 329 S.E.2d
815, cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 158 (1985).
Accordingly, we hold that the sentence of death imposed in this case was
not disproportionate.
CONCLUSION
Having reviewed the sentence of death pursuant to
Code § 17.1-313, we decline to commute that sentence. Accordingly, we
will affirm the judgment of the trial court.FN2
FN2. The United States Supreme Court in Atkins v.
Virginia, 536U.S. 304, ---- 122 S.Ct. 2242, 2252, 153 L.Ed.2d 335
(2002), recently held that the execution of mentally retarded persons
violates the Eighth Amendment's prohibition against cruel and unusual
punishments. The Court did not establish an express standard for
determining when an individual would be considered mentally retarded and
left to the States the task of developing appropriate ways to enforce
this constitutional restriction upon executions. Atkins, 536 U.S. at
----, 122 S.Ct. at 2250.
The General Assembly has not had the opportunity to
address this matter following the decision in Atkins.At trial, Emmett
did not assert that he is mentally retarded. Moreover, our review of the
record reveals nothing that even suggests that he is mentally retarded.
Emmett received a high school equivalency diploma, attended a community
college, and was regularly employed during his adult life prior to
committing the murder in question. Accordingly, we conclude that Emmett
does not suffer from any mental retardation that would constitutionally
restrict the imposition of the death sentence in this case. Affirmed
