5.3 Aggravating Factors

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

5.3 AGGRAVATING FACTORS

The "vileness" factor and the "future dangerousness" factor of section 19.2-264.2 of the Virginia Code are written in the disjunctive; thus, they are independently capable of supporting a death sentence. The finding of at least one aggravating factor must be unanimous in order for a defendant to be eligible for the death penalty. ⁵⁵ Any error in applying an aggravating factor may be harmless error if the death sentence was based on both aggravating factors and at least one factor was correctly applied. For example, invalid application of the vileness factor was harmless when the jury also lawfully found the future dangerousness factor. ⁵⁶ In Stringer v. Black, ⁵⁷ the United States Supreme Court stated: "assuming a determination by the state appellate court that an invalid factor would not have made a difference to the jury's determination, there is no constitutional violation resulting from introduction of an invalid factor in an earlier stage of the proceedings." A federal court conducting habeas corpus review of a state court's determination of aggravating circumstances is limited to determining whether the state court's finding was so arbitrary and capricious as to constitute an independent due process or Eighth Amendment violation. ⁵⁸

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The Fourth Circuit has held that "the Constitution does not prohibit consideration at the sentencing phase of information not directly related to either statutory aggravating or statutory mitigating factors, as long as that information is relevant to the character of the defendant or the circumstances of the crime." ⁵⁹ Mitchell v. United States ⁶⁰ held that entry of a guilty plea is not a waiver of the Fifth Amendment privilege against self-incrimination for sentencing purposes, nor may a sentencing court draw an adverse inference from the defendant's silence at sentencing. The Court expressed no opinion on the separate question of "whether silence bears upon the determination of a lack of remorse, or upon acceptance of responsibility. . . ." However, Smith v. Commonwealth ⁶¹ noted that "a trial court may consider a defendant's lack of remorse at sentencing, even when the defendant has chosen to enter an Alford plea." Lawlor v. Commonwealth ⁶² stated that "[w]hile it is proper for a court to consider a defendant's 'present tense refusal to accept responsibility or show remorse,' . . . [a] defendant must not be penalized at sentencing for having mounted a legal defense to the charge against him." However, at least in dicta, United States v. Runyon ⁶³ suggested that "penalizing a capital defendant for failure to articulate remorse burdens his Fifth Amendment privilege against self-incrimination and . . . the Fifth Amendment may well prohibit considering a defendant's silence regarding the non-statutory aggravating factor of lack of remorse."

Although the United States Supreme Court has declined to "fashion general evidentiary rules . . . which would govern the admissibility of evidence at capital sentencing proceedings," it has recognized that evidence obtained in violation of the Sixth Amendment right to counsel is inadmissible at sentencing proceedings. ⁶⁴ In the case of a guilty plea, however, Terry v. Commonwealth ⁶⁵ held that "a defendant who pleads guilty unconditionally while represented by counsel may not assert independent claims relating to events occurring prior to the entry of the guilty plea." Thus, in the context of a valid guilty plea, a statement obtained in violation of the Sixth Amendment could be used at sentencing.

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5.301 Vileness. The "vileness" factor requires that the defendant's conduct in committing the offense be outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim. ⁶⁶ Vileness can be demonstrated by torture, depravity of mind, or aggravated battery—any one of which, standing alone, may support imposition of the death penalty. ⁶⁷

In Green v. Commonwealth, ⁶⁸ the defendant filed a pretrial motion asking the court to rule that the evidence available to the Commonwealth would be insufficient, as a matter of law, to establish the vileness aggravating factor. The Virginia Supreme Court held that "there is no procedure in Virginia that allows a circuit court, in a pre-trial context, to rule on the sufficiency of the Commonwealth's evidence in a criminal case. Instead, the court must determine the sufficiency of that evidence based on the record made at trial."

While the jury must be unanimous in finding the vileness factor, the jury need not be unanimous as to whether the vileness consisted of torture, depravity of mind, or aggravated battery. "Depravity of mind, aggravated battery, and torture are not discrete elements of vileness that would require separate proof but rather are 'several possible sets of underlying facts [that] make up [the] particular element.'" ⁶⁹ Without mentioning Apprendi v. New Jersey, ⁷⁰ the court treated vileness as the "element" that must be found by a unanimous jury, while depravity of mind, aggravated battery, and torture are underlying facts that need not be found unanimously. By way of example, the court stated that "the jury must unanimously find force as an element of the crime of robbery, but whether the force is created by the use of a gun or a knife is not an element of the crime and therefore does not require jury unanimity."

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In Teleguz v. Commonwealth, ⁷¹ the Virginia Supreme Court noted that in determining vileness it may be "an open question" as to whether the acts committed by the actual murderer can be imputed to the "mastermind" who hired the perpetrator. Nonetheless, the court found sufficient evidence of vileness in the mastermind's own actions of selecting the murder weapon and directing the actual manner of the murder—cutting the victim's throat.

A. Torture. The Virginia Supreme Court has not offered an extensive definition of "torture," although Jones v. Commonwealth ⁷² noted that torture ordinarily connotes conduct preceding the death of the victim, while mutilation, gross disfigurement, or assault committed upon a corpse evinces depravity of mind. It also appears that the term torture is limited to physical abuse of the victim, because the court has indicated that psychological torture constitutes evidence of depravity of mind ⁷³ or future dangerousness. ⁷⁴ Lawlor v. Commonwealth ⁷⁵ noted that "Virginia's vileness aggravating factor is identical to the State of Georgia's aggravating factor" under which the Supreme Court of Georgia defined the torture element of its statute:

Torture occurs when a living person is subjected to the unnecessary and wanton infliction of severe physical or mental pain, abuse, agony or anguish. Besides serious physical abuse, torture includes serious sexual abuse or the serious psychological abuse of a victim resulting in severe mental anguish to the victim in anticipation of serious physical harm.

B. Aggravated Battery. Although every murder constitutes an aggravated battery to the victim, Smith v. Commonwealth ⁷⁶ defined aggravated battery for sentencing purposes as "a battery which, qualitatively and quantitatively, is more culpable than the minimum necessary to accomplish an act of murder." ⁷⁷ An aggravated battery is not proven where the evidence

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shows that the victim died almost instantaneously from a single gunshot wound, ⁷⁸ but infliction of multiple wounds may meet the test for an aggravated battery. ⁷⁹

Yarbrough v. Commonwealth ⁸⁰ stated:

We have never expressly confined our consideration of the acts taken to accomplish the murder to those wounds which actually caused the victim's death. To the contrary, we have held that acts that facilitate the murder, such as restraining the victim by force or assaulting the victim in the commission of a predicate felony are additional factors to be considered. Here, the evidence fairly establishes that Yarbrough both restrained and assaulted Hamby in order to facilitate the murder, acts which constituted an aggravated battery beyond that necessary to accomplish the murder.

C. Depravity of Mind. Any act of murder arguably involves depravity of mind, but Smith v. Commonwealth ⁸¹ rejected such a broad construction. "Depravity of mind," the Smith court stated, means "a degree of moral turpitude and psychical debasement surpassing that inherent in the definition of ordinary legal malice and premeditation."

D. Validity of Vileness Factor. There has been no definitive United States Supreme Court decision on Virginia's application of the vileness factor, although the Virginia definition may have some of the deficiencies noted in Maynard v. Cartwright, ⁸² in which the Court found an Oklahoma statute to be unconstitutionally vague because it permitted imposition of the death penalty upon a finding that a murder was "especially heinous, atrocious or cruel." The Court has held that it is error to impose a death sentence based upon the "vileness" factor when the jury is instructed only in the statutory language of the factor. ⁸³ For example, in Shell v. Mississippi, ⁸⁴

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the Court struck down a jury instruction that stated "[t]he word heinous means extremely wicked or shockingly evil; atrocious means outrageously wicked and vile; and cruel means designed to inflict a high degree of pain with indifference to or even enjoyment of the suffering of others."

The United States Supreme Court upheld an Idaho statute making it an aggravating circumstance to have killed with "utter disregard for human life," namely, a "cold-blooded" and "pitiless" slaying. ⁸⁵ In Tuilaepa v. California, ⁸⁶ the Court stated that, for purposes of vagueness analysis, "our concern is that the factor have some 'common-sense core of meaning . . . that criminal juries should be capable of understanding.'" In Clark v. Commonwealth, ⁸⁷ the Virginia Supreme Court observed that the statutory terms "outrageously or...