Zirkle v. Commonwealth

Present: 	All the Justices
DANIEL LEE ZIRKLE
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. 	Record Nos. 010227 & 010228 	November 2, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Porter R. Graves, Jr., Judge
As required by Code § 17.1-313, we review the sentence of
death imposed upon Daniel Lee Zirkle.
I.
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
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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
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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
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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.
Even though Zirkle waived his right of appeal and
directed his counsel not to participate in any appeals on his
behalf, this Court must review the imposition of the sentence
of death. 	We ordered that Zirkle's counsel file a brief and
present oral argument to this Court upon the matters contained
in Code § 17.1-313, which states in relevant part:
"A. 	A sentence of death, upon the judgment
thereon becoming final in the circuit court, shall
be reviewed on the record by the Supreme Court.
. . . .
"C. 	[T]he Court shall consider and determine:
"1. 	Whether the sentence of death was
imposed under the influence of passion,
prejudice or any other arbitrary factor; and
"2. 	Whether the sentence of death is
excessive or disproportionate to the penalty
imposed in similar cases, considering both the
crime and the defendant."
Thus, we review Zirkle's sentence of death to determine
whether it was imposed under the influence of any arbitrary
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factor and whether his sentence of death is excessive or
disproportionate.
II.
A.
The Proffered Evidence
Zirkle and Barbara J. Shifflett, who were not married,
shared a residence together. 	In April 1999, the Juvenile and
Domestic Relations District Court of Harrisonburg and
Rockingham Counties issued a protective order that directed
Zirkle to stay away from the residence he had shared with
Barbara Shifflett. 	Zirkle was convicted of violating that
order in May 1999 and was incarcerated.
On August 2, 1999, Barbara Shifflett left her home and
went to her place of employment. 	Her daughters, Jessica
Shifflett and Christina Zirkle, remained at the home.
Christina Zirkle was the natural child of the defendant.
Barbara Shifflett had instructed Jessica, who was 14 years
old, to take care of Christina, who was four years old.
Barbara Shifflett called her home several times that day to
"check on" the children.
In the afternoon of August 2, 1999, Zirkle, who had been
released from incarceration, placed a telephone call to
Barbara Shifflett and stated, "[l]ive in hell, bitch," and he
hung up the telephone. 	Barbara Shifflett became concerned,
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and she went to a magistrate who issued an arrest warrant
against Zirkle for violation of the protective order.
Subsequently, Barbara Shifflett received a telephone call from
the defendant's mother, JoAnn Zirkle, who informed Shifflett
that the defendant had taken Christina from Barbara
Shifflett's home.
Barbara Shifflett immediately left her place of
employment and began to drive her automobile to her home.
JoAnn Zirkle placed a "911 call" to emergency response
personnel because she was concerned that the defendant had
taken Christina Zirkle to an area in Page County called Story
Book Trail.
When Barbara Shifflett arrived at her home, she entered
the residence and began "crying out" for her daughters. 	She
ran though the home screaming for her daughters, but she was
unable to find them. 	Eventually, she found Jessica lying on
the floor in a bedroom. 	Barbara Shifflett was unable to
discern whether Jessica was "alive or dead." 	She observed
what she thought was red paint on Jessica's arm, but she later
learned that the liquid was actually Jessica's blood. 	Barbara
Shifflett attempted to revive Jessica, but she was unable to
do so. 	Barbara Shifflett ran out of her residence "yelling
for help."
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Officers from the Rockingham County Sheriff's Office
arrived at Barbara Shifflett's residence to inform her that
her other child, Christina, had been killed. 	Barbara
Shifflett asked the officers to help Jessica, who had been
stabbed in the throat. 	The officers tried but were unable to
revive Jessica.
Christina's body had been found by a Page County sheriff
investigator who had been dispatched to the Story Book Trail.
Christina had sustained a large neck wound, and her body was
lying on Zirkle's chest. 	A knife was lying near Zirkle's
extended arm. 	The investigator kicked the knife away from
Zirkle's hand because the officer was concerned with his
safety.
Zirkle was subsequently transported to a hospital where
he told a psychiatric medical resident that he killed
Christina and Jessica. 	Zirkle also admitted "his role" in the
murders to two detectives who interviewed him.
B.
Evidence Adduced During the Penalty Phase
The Commonwealth adduced the following evidence during
the penalty phase of the proceedings. 	Barbara Shifflett
testified that Zirkle had abused her physically and mentally.
For example, in December 1998, Zirkle shoved her against a
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refrigerator. 	In January 1999, Zirkle pushed her against a
cabinet, and she fell and cut her elbow.
In the spring of 1999, Zirkle became angry because
Christina and Jessica had spent the night with their cousins.
Zirkle became enraged and pushed Barbara Shifflett "into [a]
sofa." 	When Shifflett tried to place a telephone call for
help, Zirkle pushed her against a fish tank. 	During that
incident, Shifflett was able to place a telephone call to
police officers who responded to the residence. 	She left the
residence to spend the night with her sister, Peggy Shifflett.
Zirkle repeatedly placed telephone calls to Peggy Shifflett's
house, and he told Barbara Shifflett that he "wanted [her] and
the girls home, f'n girls home." 	When Barbara Shifflett
responded that she did not intend to return to the home,
Zirkle stated, "you want a war . . . you'll have a war you f'n
bitch, you'll pay." 	Even though a protective order had been
entered prohibiting Zirkle from entering the residence he
shared with Barbara Shifflett, when she returned to her home
the following day, the defendant had entered the home, hidden
in the shower, and attacked her.
Subsequently, Barbara Shifflett told the defendant during
a telephone conversation that they should terminate their
relationship. 	Zirkle responded that she would "pay for
breaking up his family."
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Lieutenant Daniel Comer, who is employed by the
Rockingham County Sheriff's Department, testified that Zirkle
admitted he had called Barbara Shifflett between the time he
killed Jessica and the time he killed Christina and told
Barbara Shifflett, "[l]ive in hell, bitch, live in hell."
Ricky L. Dean was in jail with Zirkle before Zirkle
killed Jessica and Christina in August 1999. 	Zirkle had a
conversation with Dean. 	Zirkle told Dean that when Zirkle
"got out he was going to kill all three of them, if he
couldn't have them nobody else would."
Frances Patricia Field, a forensic pathologist, performed
an autopsy on the body of Christina Zirkle. 	She testified
that when she examined Christina's body, she noticed bruised
areas on the back of Christina's head, at the base of her
neck, and on her back. 	The bruising on the back would have
been caused by blunt force injuries. 	Christina sustained an
injury to her left shoulder which was consistent with a
struggle.
Christina's body had a large wound on the front of the
neck and chest. 	According to Dr. Field, the wound was "both a
combined stab wound and incised wound. 	Also there's some
irregularity of the edges of the wound which indicate some
turning of the sharp instrument which caused the wound." 	Dr.
Field also testified that the wound contained jagged areas
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which could be consistent with either "the turning of [a]
blade" or with movement by the child. 	She stated: 	"The wound
cut across a large surface of skin and soft tissue at the
front of the neck and the stab wound went into the body to a
depth of about two and three-quarter inches going between two
vertebrae or backbones in the neck region and cut the spinal
cord in half which is a fatal wound." 	Dr. Field concluded
that this injury was caused by a knife. 	Dr. Field testified
that "[s]evering the spinal cord can produce a relatively fast
death although this is lower on the cord than one that would
be immediately fatal. 	But the severance of the cord at that
level plus the bleeding from the wound would result in a death
in a matter of a few minutes."
Dr. William Massello, an assistant chief pathologist for
Western Virginia, performed an autopsy on the body of Jessica
Shifflett. 	Jessica suffered a pattern of injuries to her neck
area which were caused before her death. 	She had five stab
wounds to her neck. 	Dr. Massello stated: 	"[T]wo stab wounds
actually went into the muscles and very deeply into the neck
going right across the neck from right to left and they
injured a major artery, a major vein on the left side and a
major vein on the right side. 	And the result was bleeding,
very substantial external bleeding from these wounds and
subsequent rapid death. 	[One] wound . . . did not go in as
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deeply. 	This [wound] went more directly into the neck only to
a depth of about a half an inch and did not strike any vital
structures and was not lethal per se . . . [T]he thyroid gland
which is a gland that regulates your metabolism was injured
and there was bleeding from there but was not to any degree as
injurious or as rapidly lethal as the two wounds to the left
side of the neck which cut the major arteries and veins in
there." 	Jessica also suffered bruises to her skull and had
defensive wounds on her fingers and hands.
Ronald J. Jackson, an inmate who was incarcerated with
Zirkle after he had been arrested for the murders of Jessica
and Christina, gave the following testimony. 	"An officer
. . . let Mr. Zirkle know that he was going to be a patron of
the car wash that was going to provide monies for the
headstones of the two victims. 	Mr. Zirkle, when the officer
had acknowledged that he was going to be a patron, Mr. Zirkle
said, 'Is Barbara going to be there? 	Tell that bitch I said
checkmate,' and [he] ran his finger across his throat, or his
thumb across his throat." 	Zirkle also told Jackson in a later
conversation: 	"Well, I wish I could have killed Ms. Shifflett
. . . It would have been all worth it."
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. 	He
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displayed a butcher knife, Berry gave him money from a cash
register, and Zirkle left the store. 	In 1999, Zirkle pled
guilty 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.
III. 	Passion, Prejudice, and Proportionality
A.
Counsel for Zirkle state that "every death case contains
an element of passion," but they "cannot point to any evidence
in the record that would indicate that the [c]ourt was
influenced by passion, prejudice or any other arbitrary
factor. 	Counsel . . . ask[] the [c]ourt to review the
proceedings contained in the Appendix and especially the
presentence report in considering this issue."
We have reviewed the record, and we find no evidence that
Zirkle's sentence of death was imposed under the influence of
passion, prejudice, or any other arbitrary factor. 	We also
observe that the circuit court repeatedly informed Zirkle that
he was entitled to present evidence in mitigation, but Zirkle
refused to permit his attorneys to present such evidence.
B.
The test of proportionality that we apply is whether
"juries in this jurisdiction generally approve the supreme
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penalty for comparable or similar crimes." 	Smith v.
Commonwealth, 239 Va. 243, 271, 389 S.E.2d 871, 886 (quoting
Stamper v. Commonwealth, 220 Va. 260, 284, 257 S.E.2d 808, 824
(1979), cert. denied, 445 U.S. 972 (1980)), cert. denied, 498
U.S. 881 (1990).
Zirkle's counsel state that since they were prevented
"from presenting any evidence in mitigation, [they] cannot
point to any evidence in the record that would indicate that
the sentence of death is excessive or disproportionate to the
penalty imposed in similar cases, considering both the crime
and the defendant. 	Counsel for Mr. Zirkle ask[] the Court to
carefully consider the previous cases reviewed by this Court
in determining whether the sentence imposed is excessive or
disproportionate to the penalty imposed in similar cases,
considering both the crime and the defendant."
We have examined the records in all capital murder cases
reviewed by this Court since the adoption of Code § 17.1-313
and its predecessor, Code § 17-110.1. 	Applying the test of
proportionality, we hold that the sentence of death imposed
upon Zirkle is neither excessive nor disproportionate to the
penalties imposed in similar cases, considering both the crime
and the defendant. 	See Zirkle v. Commonwealth, 262 Va. 320,
551 S.E.2d 601 (2001); Walker v. Commonwealth, 258 Va. 54, 515
S.E.2d 565 (1999), cert. denied, 528 U.S. 1125 (2000);
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Bramblett v. Commonwealth, 257 Va. 263, 513 S.E.2d 400, cert.
denied, 528 U.S. 952 (1999); Beck v. Commonwealth, 253 Va.
373, 484 S.E.2d 898, cert. denied, 522 U.S. 1018 (1997);
Clagett v. Commonwealth, 252 Va. 79, 472 S.E.2d 263 (1996),
cert. denied, 519 U.S. 1122 (1997); Goins v. Commonwealth, 251
Va. 442, 470 S.E.2d 114, cert. denied, 519 U.S. 887 (1996);
Stewart v. Commonwealth, 245 Va. 222, 427 S.E.2d 394, cert.
denied, 510 U.S. 848 (1993); George v. Commonwealth, 242 Va.
264, 411 S.E.2d 12 (1991), cert. denied, 503 U.S. 973 (1992).
IV.
Having reviewed the sentence of death pursuant to Code
§ 17.1-313, we decline to commute the sentence to imprisonment
for life. 	Accordingly, we will affirm the judgment of the
circuit court.
Affirmed.
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