Zirkle v. Commonwealth

Present: 	All the Justices
DANIEL LEE ZIRKLE
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. 	Record No. 002266 	September 14, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PAGE COUNTY
John J. McGrath, 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 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.

After the circuit court conducted an inquiry incident to
the tendered plea, 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
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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. 	We ordered that Zirkle's counsel file a brief and
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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 the sentence of death to determine whether
Zirkle's sentence was imposed under the influence of any
arbitrary factor and whether his sentence is excessive or
disproportionate.
II.
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.
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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-.' "
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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
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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.
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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.
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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
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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
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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
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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 in their brief that "every death
case contains an element of passion. 	Counsel for Mr. Zirkle
cannot point to any evidence in the record that would indicate
that the Court was influenced by passion, prejudice or any
other arbitrary factor. 	Counsel for Mr. Zirkle ask the Court
to review the proceedings . . . 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 even though it was not required to do so, the
circuit court, on several occasions, informed Zirkle that he
was entitled to offer 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
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
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(1979), cert. denied, 445 U.S. 972 (1980)), cert. denied, 498
U.S. 881 (1990).
Zirkle's counsel state that since they were "prevented by
Mr. Zirkle from presenting any evidence in mitigation, Counsel
for Mr. Zirkle 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."
We have examined the records in all capital murder cases
reviewed by this Court since the adoption of Code § 17.1-313.
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.
In Buchanan v. Commonwealth, 238 Va. 389, 384 S.E.2d 757
(1989), cert. denied, 493 U.S. 1063 (1990), we affirmed the
sentence of death imposed upon Douglas Buchanan who was
convicted of capital murder in violation of former Code
§ 18.2-31(g), now Code § 18.2-31(7), for killing his father in
the same transaction in which he killed his two half-brothers,
and stepmother. 	In Davidson v. Commonwealth, 244 Va. 129, 419
S.E.2d 656, cert. denied, 506 U.S. 959 (1992), we affirmed the
sentence of death imposed upon Mickey Wayne Davidson who used
a crowbar in the capital murder of his wife and two
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stepdaughters. 	We recognize that the sentences of death
imposed upon the respective defendants in Buchanan and
Davidson were based on the vileness predicate and that
Zirkle's sentence of death was based upon both vileness and
future dangerousness. 	This Court, however, has approved
sentences of death in comparable cases involving both the
future dangerousness and vileness aggravators. 	See Walker v.
Commonwealth, 258 Va. 54, 515 S.E.2d 565 (1999), cert. denied,
528 U.S. 1125 (2000); 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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