5.1 Introduction

• Library: Trial of Capital Murder Cases in Virginia (Virginia CLE) (2019 Ed.)

5.1 INTRODUCTION

Sections 19.2-264.2 through 19.2-264.5 of the Virginia Code provide that a separate penalty trial must be conducted for persons convicted of capital murder as soon as practicable and must be heard by the same jury that determined guilt. ¹ Schiro v. Farley ² held that a capital sentencing proceeding is not a successive prosecution for double jeopardy purposes. The Schiro Court, however, recognized that the doctrine of collateral estoppel might bar the prosecution from proving a statutory aggravating factor, such as intentional murder, if the guilt-innocence phase demonstrated that the jury necessarily acquitted the defendant of intentional murder. ³

5.101 Conviction of Capital Murder and Noncapital Offense. A bifurcated sentencing proceeding may be necessary if the defendant is convicted of capital murder and a noncapital offense. The sentencing procedures for capital murder, found in section 19.2-264.4, differ from the procedures for noncapital felonies, found in section 19.2-295.1. The only apparent way to give effect to both sections is to hold two penalty phase hearings. The hearing pursuant to section 19.2-264.4 would determine the punishment

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for capital murder, and the proceeding pursuant to section 19.2-295.1 would determine the sentence for the noncapital felony offense. ⁴

5.102 Convictions on Two Separate Capital Murder Indictments. In Andrews v. Commonwealth, ⁵ the Supreme Court considered the penalty determination implications of convictions on two separate capital murder indictments:

The Commonwealth is free to indict the defendant under Code § 18.2-31(8) for the murder of more than one person within a three-year period when each of the constituent murders occurred as part of the same act or transaction, and also indict the defendant for capital murder under Code § 18.2-31(7) [killing of more than one person as part of the same act] for the same murders. However, if the Commonwealth obtains convictions on both indictments it may not seek to have separate punishments imposed for each offense. Rather it must elect which indictment it will proceed upon in the penalty-determination phase of the trial.

Severance v Commonwealth ⁶ distinguished Andrews as follows:

Here, two separate murders occurred months apart. They were separate crimes and events; they were not part of the same "act or transaction." The fact that each murder provided the predicate offense for a conviction under Code § 18.2-31(8) does not limit appellant's liability for conviction and sentencing on both charges. Code § 18.2-31(8) contains no temporal restriction mandating that the first of the two murders is a predicate murder and only the second is a capital murder.

5.103 Admissibility of Evidence Generally. "Evidence relevant to sentencing in the penalty phase of a capital murder trial is admissible

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'subject to the rules of evidence governing admissibility,'" and there is no "relaxed evidentiary standard" at the hearing. ⁷

5.104 No Instruction on Lingering Doubt as to Guilt. The only issue at the penalty trial is whether the defendant will be sentenced to death or life imprisonment. The issue of guilt having been resolved in the first phase of the trial, it is improper for counsel to again raise the issue in the penalty phase. ⁸ Thus, defendants are not entitled to an instruction that juries may consider "lingering doubt" about guilt...