Eligible for Execution: The Story of the Daryl Atkins Case

August 16, 1996 was the night Eric Nesbitt, an airman from the Langley Air Force base, was abducted and murdered near the Hampton area of Virginia.

At around 11:30pm on August 16, 1996, after a day of drinking and smoking marijuana, Daryl Atkins and William Jones made their way to a nearby 7-Eleven convenience store for one final beer run. Upon arriving, Atkins realized that he didn't have enough money to cover the cost of a beer, while Jones only had enough to buy one for himself. Atkins was unwilling to go home without alcohol and instead began panhandling customers arriving at the store. Unhappy with only the spare change he received, Atkins decided that more aggressive actions were necessary.

Twenty-one-year-old Eric Nesbitt, who in addition to being an airman at the base, also worked at the local auto parts store in efforts to earn extra money to repair his purple 1995 Nissan pickup truck. At 11:30pm on the 16^th, Nesbitt left the auto parts store with plans to meet a friend at the Air Force base later that night. On his way, he stopped to withdraw $60 for the weekend from the Crestar Bank ATM machine. Continuing his journey to the base, Nesbitt decided to stop again, this time for a snack at the same 7-Eleven store where Atkins and Jones were attempting to make beer purchases.

Nesbitt exchanged a few quick words with Atkins before entering the store. While backing out of the parking lot, Atkins whistled Nesbitt down. The two African American men, who stood no more than 5'4 and weighed no more than 120 pounds, made their way to the passenger-side window of the pickup. Atkins, who had ordered Nesbitt out of the driver's seat with a .38-caliber pistol, instructed Jones to drive. With the gun directed at the young airman, Atkins seized the $60 from Nesbitt's wallet which had been withdrawn earlier that night. Additionally, upon seeing Nesbitt's ATM card, Atkins ordered Jones to drive to the bank where Nesbitt withdrew an additional $200.

After leaving the bank, Jones drove back toward the neighborhood where the 7-Eleven was, stopping temporarily in a school's parking lot. There, they discussed what they planned to do with Nesbitt. Jones' suggestion was just to tie up Nesbitt and leave him somewhere so that the two could escape. However, they were unable to think of a good place to leave him in the Hampton area so they made their way to an area just outside of Yorktown, Virginia. At the instruction of Atkins, Jones drove the truck for approximately twenty minutes on Interstate 64. They then exited at Lee Hall and headed northeast on Highway 238, followed by turning onto Crafford Road (which later turns to Crawford Road), a curvy asphalt road. They took Crafford a half mile before crossing into York County and entering the national preserve area of the Colonial National Historical Park, where there were no stores, houses, people, or streetlamps. Due to the isolated nature of the area, witnesses were very unlikely. With Nesbitt's pleas to not kill him, the three continued down Crawford Road, stopping where Tower Lane joins. Atkins was familiar with the area; his grandfather's house was a mere three miles away. However, Jones claimed to have never been there before. "Unknowingly Atkins's decision to come to this location may have weakened his subsequent legal position significantly" (pg.9).

Atkins ordered Nesbitt out of the truck and to stand up straight. With Jones still in the truck, Atkins began to shoot. When Jones finally was able to exit the vehicle, he attempted to seize control of the gun while Atkins continued to fire shots. The struggle resulted in two additional fires, wounding Atkins. After the ordeal, Jones and Atkins left the scene in Nesbitt's truck. Jones dropped Atkins at the hospital since he desperately needed medical treatment for the gunshot wounds on his leg. Atkins provided the emergency room nurse, Jacquelyn McIntyre, with a story of how he had been assaulted and shot outside the hospital. Officer Anthony Tutone interviewed Atkins but was unable to detain him since no similar crimes had been reported that were consistent with the wounds Atkins had.

After Nesbitt's body was found, on August 20, Investigator F. Troy Lyons discovered that videotapes had been recovered from the Crestar Bank ATM machine with useable images of Nesbitt's possible murderers. With the help of the public, Atkins and Jones were identified and brought in to face severe charges. Their charges included "murder, abduction, robbery, and the use of a firearm in the commission of a crime" (pg. 24)

The Commonwealth Attorney responsible for prosecuting the case was Eileen M. Addison. Her team consisted of a small number of attorneys, including Benjamin Hahn and Cathy Krinick, who had previous experience with capital murder cases.

Under the rulings of Powell v. Alabama (1932), Gideon v. Wainwright (1963), Argersinger v. Hamlin (1972) and Scott v. Illinois (1979), Atkins and Jones both had the right to lawyers provided at the expense of the state. In the jurisdiction in which the case was taking place (York/Poquoson circuit), it is the responsibility of the trial court judge to assign a private attorney to represent criminal defendants. Judge Prentis Smiley Jr. appointed George M. Rogers III, an experienced criminal law attorney to represent Daryl Atkins. Since Jones was facing the possibility of capital punishment, he was entitled to two attorneys under Virginia law. Jones was appointed Timothy G. Clancy and Leslie Smith.

The main concern in the investigation of the murder of Eric Nesbitt was figuring out who the actual killer was. Virginia law states that "the willful, deliberate, and premeditated killing of any person during the commission of a serious crime, such as robbery, abduction, or rape, constitutes "capital murder," carrying a penalty of either life in prison or death" (pg.30). Those who only participate in a crime that results in death are only charged with "murder in the first degree" while the actual killer is "eligible for execution". With Atkins' recent history of violent crimes before the murder of Eric Nesbitt, including the shooting of Amanda Hamlin, he looked to be the most likely to have committed the killing. While being held in custody, Jones and Atkins both claimed that the other had been Nesbitt's killer. However, there were a number of inconsistencies found in the version of events that Atkins provided and his credibility was affected quite negatively due to recent felony convictions from previous incidents. Additionally, Atkins' cell-mate Stephen R. Burton claimed to have had conversations with Atkins in which he had admitted to being Nesbitt's shooter.

In November of 1996, Eileen Addison brought forth her case against Daryl Atkins to the grand jury. The jury obliged to an indictment for capital murder and associated charges: "The Grand Jury charges that: on or about August 17, 1996, in the County of York, Virginia, Daryl Renard Atkins did feloniously, willfully, deliberately, and with premeditation kill and murder Eric Michael Nesbitt in the commission of a robbery while armed with a deadly weapon" in violation of "Section 18.2-31, subparagraph 4, Virginia Code (1950) as amended. Capital murder of the victim of a robbery" (pg. 35). The grand jury also issued charges that were comparable against William Jones.

Addison had sufficient evidence to sway a jury into finding Atkins guilty, even though there were no eye-witnesses. She had evidence showing that Atkins was in fact familiar with the place of the crime, that he was guilty of murdering Eric Nesbitt with the testimony of Stephen Burton, along with the ATM photos of him holding the .38-caliber pistol. When the trial began on February 9, 1998, Atkins pled guilty to all his admitted crimes, including Nesbitt's abduction and robbery, but not guilty to capital murder and use of a firearm in the commission of a murder.

Since the crimes were committed within the York County area, the jury was drawn from York County/city of Poquoson area. "There was a high probability that any jury drawn from the communities of York County would be less sympathetic to Atkins and Jones than a jury selected from the general population of Hampton or Newport News" (pg. 9). It was likely that the jury drawn from the York circuit "would likely be whiter, more affluent, better educated, and more conservative that juries selected in either Hampton or Newport News" (pg. 106).

During the sentencing phase of the trial, Dr. Evan Nelson, a clinical psychologist, testified that Atkins had an IQ of 59. The defense presented Atkins's school records, court records, and interviews with people who knew Atkins to support Dr. Nelson's conclusion that Atkins had "mild retardation". The jury returned a sentence of death: "We, the jury, find the Defendant guilty of capital murder, as charged in Indictment Number One. We, the jury, find the Defendant guilty of use of a firearm in the commission of a murder, as charged in Indictment Number Four" (pg. 125).

Atkins appealed the decision to the Supreme Court of Virginia, arguing that since he was mentally retarded, he could not be put to death. His appeal was rejected by the Supreme Court based on the previous case of Penry v. Lynaugh (1989) that determined persons with mental retardation were not in violation of the ban against cruel and unusual punishment in the Eight Amendment to the Constitution. The prosecution proved that Atkins posed future danger, based on his past violent convictions. With the prosecution's witness Dr. Stanton Samenow, it was shown that Atkins's vocabulary, general knowledge, and behavior proved that he had an average intelligence. The Supreme Court ruled in a 6-3 decision that persons with mental retardation cannot be executed due to its violation of the Constitution's Eight Amendment.

In 2005, it was decided by a Virginia Jury that Atkins was in fact eligible for execution based on his improved intelligence level. Due to the contact he had with his lawyers, it was declared that he had been intellectually stimulated enough to have an increased IQ score above 70, which made him capable of being put to death under Virginia law. The prosecution argued that his use of alcohol and drugs resulted in poor school performance and had therefore produced lower IQ scores (pg. 251-257). The jury unanimously found that Atkins had not provided sufficient evidence to determine his mental retardation (pg. 258). The Court set his execution date for December 2, 2005, but was eventually stayed. In January 2008, Judge Prentis Smiley ruled for Atkins's sentence of life imprisonment and has since been upheld.

The final decision in the case of Atkins v. Virginia was one I can agree with. While the prosecution may have been able to prove that Daryl Atkins was not mentally retarded in 2005, it is apparent that he was mentally retarded at the time the crimes were committed. Regardless of how much Atkins' intelligence level increased over the years of the trial and his time in prison, he was still mentally instable in 1996 when Eric Nesbitt was murdered. Even though the case revolved around the unfortunate killing of a young airman over Atkins's craving to satiate his liquor habits, the case can be considered influential in the determination of similar cases in the future.

Source: Eligible for Execution by Thomas G. Walker