Burns v. Commonwealth – July 28, 2009

Burns asked the trial court to find him “mentally retarded within the meaning of Code § 19.2-264.3:1.1.” In a civil proceeding, the trial court found that he was not mentally retarded. Burns alleges 17 errors on the part of the trial court as to that decision.

Burns was convicted by a jury of capital murder in the commission of rape and/or forcible sodomy in violation of Code 18.2-31, statutory burglary in violation of Code 18.2-90, rape in violation of Code 18.2-61, and forcible sodomy (anal intercourse) in violation of Code 18.2-67.1.1. The jury fixed his punishment as death on the capital murder conviction, finding that “there is a probability that [Burns] 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 or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or aggravated battery to the victim beyond the minimum necessary to accomplish the act of murder.” The jury also sentenced Burns to 18 years on the statutory burglary conviction, and to life imprisonment on each of the convictions for rape and forcible sodomy.

The SCV affirmed Burns’ convictions in 2001.

On habeas, the SCV remanded Burns’ case to the trial court for a mental retardation determination hearing pursuant to Code § 8.01-654.2. The judgment of the trial court summarily dismissing the question of Burns’ mental retardation prior to the issue going to the jury is the judgment Burns now appeals.

From
The Circuit Court of Shenandoah County; D.L. Hupp, Judge.

Counsel
James G. Connell, III, and Jonathan P. Sheldon (Devine, Connell & Sheldon, P.L.C.) for appellant.

Katherine B. Burnett (Office of the Attorney General) for appellee.

Assignments of Error

1. The trial court erred in granting summary judgment against Burns on the issue of whether he is mentally retarded within the meaning of Code § 19.2-264.3:1.1.

2. The trial court erred in granting summary judgment against Burns because the proceeding below was not a civil proceeding.

3. The trial court erred in granting summary judgment against Burns because the proceeding below was a criminal proceeding, or at least a quasi-criminal proceeding.

4. The trial court erred in granting summary judgment against Burns because the summary judgment denied Burns his statutory right to a jury determination of his claim of mental retardation.

5. The trial court erred in granting summary judgment against Burns because the summary judgment denied Burns his Eighth and Fourteenth Amendment rights to a determination of his mental retardation in accordance with due process and equal protection.

6. The trial court erred in granting summary judgment against Burns because the summary judgment denied Burns his Fourteenth Amendment right to a jury determination of his claim of mental retardation.

7. The trial court erred in granting summary judgment against Burns because the summary judgment denied Burns his Eighth and Fourteenth Amendment right against execution of the mentally retarded.

8. The trial court erred in granting summary judgment against Burns because the proceedings below denied Burns his right to be present at critical phases of his trial.

9. The trial court erred in granting summary judgment against Burns because Code § 19.2-264.3:1.1 does not require expert testimony at trial on the issue of intellectual functioning.

10. The trial court erred in granting summary judgment against Burns because the summary judgment violated the mandate of this Court requiring a jury determination of Burns’ mental retardation claim.

11. The trial court erred in granting summary judgment against Burns because the Commonwealth was improperly represented by both the Commonwealth’s Attorney and the Attorney General.

12. The trial court erred in refusing to adjudicate Burns incompetent, order a restoration of his competency, or halt the proceedings against him, and in granting summary judgment against Burns, because its actions violated Burns’ constitutional and statutory rights to be competent during the proceedings.

13. The trial court erred in refusing to adjudicate Burns incompetent, order a restoration of his competency, or halt the proceedings against him, and in granting summary judgment against Burns, because its actions violated Burns’ constitutional and statutory rights to a hearing on his competence.

14. The trial court erred in refusing to adjudicate Burns incompetent, order a restoration of his competency, or halt the proceedings against him, and in granting summary judgment against Burns, because its actions violated Burns’ constitutional and statutory rights to competence to be tested in conformity with accepted professional practice pursuant to Code § 19.2-263.3:1.1(B)(1), including administration of a standardized measure of intellectual functioning in conformity with professional practice.

15. The trial court erred in refusing to adjudicate Burns incompetent, order a restoration of his competency, or halt the proceedings against him, and in granting summary judgment against Burns, because its actions violated Burns’ Eighth and Fourteenth Amendment right to a mechanism to assert his claim of mental retardation.

16. The trial court erred in refusing to adjudicate Burns incompetent, order a restoration of his competency, or halt the proceedings against him, and in granting summary judgment against Burns, because its actions violated Burns’ due process right to the benefit of Virginia’s statutory procedure for asserting a claim of mental retardation.

17. The trial court erred in refusing to adjudicate Burns incompetent, order a restoration of his competency, or halt the proceedings against him, and in granting summary judgment against Burns, because its actions violated Burns’ right to rationally assist his counsel by participating in an intellectual functioning assessment.

18. The trial court erred in refusing to adjudicate Burns incompetent, order a restoration of his competency, or halt the proceedings against him, and in granting summary judgment against Burns, because the Commonwealth aggravated Burns’ mental illness and denied him access to professional testing of his intellectual functioning by subjecting Burns to solitary confinement and inadequate medication.

Date Granted
7-24-2009