5.2 “eligibility” and “selection” Phases

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

5.2 "ELIGIBILITY" AND "SELECTION" PHASES

The United States Supreme Court has spoken of the penalty trial as being divided into the "eligibility" phase and the "selection" phase. ¹⁷ However, Lawlor v. Commonwealth ¹⁸ rejected an argument that the trial court must bifurcate the penalty phase into two proceedings: one in which the jury must unanimously find one or more of the aggravating factors set forth in section 19.2-264.2 beyond a reasonable doubt, thereby making the defendant eligible for a sentence of death, followed by one in which the jurors consider mitigating evidence to determine whether to impose a sentence of death or life imprisonment without parole.

5.201 Eligibility Phase.

A. In General. "In the eligibility phase, the jury narrows the class of defendants eligible for the death penalty, often through consideration of aggravating circumstances." ¹⁹ To authorize the imposition of a sentence of death, the Commonwealth must establish beyond a reasonable doubt (i) the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing serious threat to society or (ii) that the defendant's conduct in committing the offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim. ²⁰ "The aggravating circumstances required for imposition of the death penalty are not elements of the crime of capital murder. They relate only to the punishment authorized after conviction of the offense." ²¹ Thus, in the case of a juvenile transfer order, the

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juvenile court is not required to make a probable cause determination of the sufficiency of the evidence in support of the statutory predicates for imposition of the death penalty. ²²

With one exception, ²³ the defendant's age is not an element of the crime. "Therefore, the defendant's age is properly raised at sentencing, not during the guilt phase of the trial." ²⁴ Following the decision in Roper v. Simmons, ²⁵ juveniles are no longer eligible for the death penalty.

In In re Horan, ²⁶ the trial judge granted a pretrial motion to prohibit the Commonwealth from seeking the death penalty because the Commonwealth had violated the Vienna Convention on Consular Relations and Optional Protocol on Disputes. The Virginia Supreme Court issued a writ of mandamus directing the trial judge to allow the commonwealth's attorney to seek the death penalty. The court noted that, under the Virginia statutory scheme, the trial judge does "not have authority to make a sentencing decision when ruling on a pre-trial motion. . . . [and that the judge] performed an executive function and exercised discretion that resides solely in the Commonwealth's Attorney."

B. Intellectual Disability as Eligibility Factor. ²⁷

Note: In 2014 the United States Supreme Court, in Hall v. Florida, ²⁸ explicitly adopted the term "intellectual disability" to replace the former term "mental retardation" in that case and all of its subsequent cases. See the preceding footnote regarding this change of terminology in Virginia's statutes.

In Atkins v. Virginia, ²⁹ the United States Supreme Court held that executions of intellectually disabled defendants are "cruel and unusual punishments" prohibited by the Eighth Amendment. The Court offered no guidance for defining or determining intellectual disability/mental retardation but merely noted:

[I]n this case, for instance, the Commonwealth of Virginia disputes that Atkins suffers from mental retardation. Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. . . . "We leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences." ³⁰

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The General Assembly responded to the Atkins decision by enacting section 19.2-264.3:1.1 of the Virginia Code, subsection (A) of which presently provides:

"Intellectual disability" means a disability, originating before the age of 18 years, characterized concurrently by (i) significantly subaverage intellectual functioning as demonstrated by performance on a standardized measure of intellectual functioning administered in conformity with accepted professional practice, that is at least two standard deviations below the mean ³¹ and (ii) significant limitations in adaptive behavior as expressed in conceptual, social and practical adaptive skills.

Prieto v. Commonwealth ³² held that subsection (C) of section 19.2-264.3:1.1 "clearly mandates that the issue of mental retardation be determined by the jury as part of the sentencing phase. Therefore, the circuit court did not err in denying Prieto's motion for a pretrial determination of mental retardation." The court also held that "the issue of mental retardation is not to be separated from the issue of punishment, but is to be determined by the jury as part of the sentencing phase of the bifurcated trial." ³³ Defense counsel had requested a trifurcated proceeding divided into a guilt phase, a mental retardation phase, and a sentencing phase.

Subsection (B) of section 19.2-264.3:1.1 sets forth the requirements for assessing intellectual disability while section 19.2-264.3:1.2 provides for expert assistance in preparing and presenting information concerning the defendant's intellectual disability. Although the admission of expert testimony is normally committed to the sound discretion of the trial judge, "where a statute designates express qualifications for an expert witness, the witness must satisfy the statutory criteria in order to testify as an expert." In Atkins v. Commonwealth, ³⁴ the witness did not meet the requirements for testifying about intellectual disability: to "be skilled in the administration of measures of adaptive behavior."

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Subsection (D) of section 19.2-264.3:1.1 provides the verdict forms to be used when the issue of intellectual disability is raised.

Subsection (C) of section 19.2-264.3:1.1 provides that "the defendant shall bear the burden of proving that he is a person with intellectual disability by a preponderance of the evidence." Placing the burden of proof on the defendant may conflict with Ring v. Arizona, ³⁵ which held that Arizona's enumerated aggravating factors operated as "the functional equivalent of an element of a greater offense," and "if a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact—no matter how the State labels it—must be found by a jury beyond a reasonable doubt." The Virginia approach is thus subject to attack on the grounds that the absence of intellectual disability constitutes an element of death eligibility that the prosecution must prove beyond a reasonable doubt. For example, a New Jersey appellate court has held that Ring requires, "as a matter of due process, that the absence of...