5.13 Resentencing Hearings

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

5.13 RESENTENCING HEARINGS

Reversal for error in a sentencing proceeding ²⁷⁵ requires only a new sentencing hearing, not a new trial. At the resentencing hearing, "the physical evidence admitted and marked as exhibits in the first trial may be considered, so much of the transcript of the testimony and proceedings in the first trial as may be necessary to show the nature of the offense charged and the circumstances under which it was committed may be read in open court, and such additional evidence as may be competent and relevant to the issue of punishment may be adduced." ²⁷⁶

Virginia law permits the introduction of evidence from the defendant's first trial that is needed to show the nature of the offense and circumstances under which it was committed at the resentencing hearing, but this evidence must be the same evidence presented at the previous trial. A judge's own interpretation of the earlier evidence in the form of a statement of facts that is created just for the resentencing jury is not admissible for the purpose absent the agreement of the parties." ²⁷⁷

At the resentencing proceeding, the defendant is not permitted to challenge the Commonwealth's evidence of guilt or argue "residual doubt" concerning his guilt. The use of live testimony and/or transcribed testimony from the first trial "is a matter submitted to the circuit court's discretion." ²⁷⁸

[Page 412]

"When a criminal case ends in a mistrial, the rulings made by the trial court prior to or during the aborted trial do not automatically carry over to a subsequent retrial." . . . "In the absence of a ruling in the second trial adopting the rulings of the aborted trial, the defendant is required to renew his motions with specificity in order to preserve the record of the trial court's rulings and the defendant's objections thereto for any subsequent appeal of the retrial." ²⁷⁹

The doctrines of res judicata and collateral estoppel are akin to, but distinct from, the "law of the case" doctrine, which "compels compliance on remand with the dictates of a superior court and forecloses relitigation of issues expressly or impliedly decided by the appellate court." ²⁸⁰

In re Commonwealth ²⁸¹ held that although the case had been remanded for a determination of intellectual disability, "a circuit court presiding during a remand of a capital murder proceeding retains authority and discretion to resolve [other] legal issues that the litigants raise." It is questionable whether a remand for...