5.5 Exclusion of Mitigating Evidence

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

5.5 EXCLUSION OF MITIGATING EVIDENCE

5.501 Irrelevant Evidence. Subsection (B) of section 19.2-264.4 provides that "evidence may be presented as to any matter the court deems relevant to sentence" and also speaks of evidence "which may be admissible, subject to the rules of evidence governing admissibility." ¹⁸¹ Although Virginia trial courts liberally admit evidence in mitigation, in a few cases the Supreme Court of Virginia has upheld the trial court's exclusion of matters offered in mitigation. For example, Coppola v. Commonwealth ¹⁸² approved exclusion of evidence of the effect of the defendant's incarceration on his two young sons and evidence that his co-defendant had received a life sentence. Sheppard v. Commonwealth ¹⁸³ stated that an accomplice's life sentence "for almost identical involvement in the same crimes" is irrelevant and may not be shown in mitigation. Andrews v. Commonwealth ¹⁸⁴ upheld the exclusion of an actual box of cremains as having no probative value; the exclusion was not prejudicial because a photograph of the box was admitted into evidence. In contrast, the court held that "Andrews should have been able to present the poem [he had written] as mitigating evidence against the Commonwealth's remarks that Andrews was a 'killing machine.'" Mackall v. Commonwealth ¹⁸⁵ upheld a trial court's exclusion of extensive evidence of mitigation that was

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deemed to be irrelevant. Among other things, the court excluded the defendant's statements to a former probation officer that he wanted to be transferred from a particular prison because he had too many friends "from the wrong group" and statements to another prison official that he doubted he would "be able to make it" upon his release. The Fourth Circuit Court of Appeals refused to review the exclusion of this evidence because the defendant "did not base his claims of error on a constitutional right to admit mitigating testimony or contend that the refusal of the trial court to admit his testimony rendered his sentencing proceeding fundamentally unfair." ¹⁸⁶ The court's opinion highlights the need to relate alleged errors to violations of federal constitutional rights.

The trial court's authority to limit mitigation evidence at the penalty trial of capital cases is called into question by United States Supreme Court pronouncements on the required scope of mitigation evidence. In Green v. Georgia, ¹⁸⁷ the convicted capital defendant was precluded from introducing hearsay testimony that a separately tried co-defendant had admitted to killing the victim. (Georgia did not recognize the "declaration against penal interest" exception to its hearsay rule.) Noting that the testimony was highly relevant to the sentencing decision, the Court made its own assessment of the reliability of the hearsay and held that exclusion of this evidence violated the Due Process Clause of the Fourteenth Amendment. ¹⁸⁸

The Fourth Circuit, however, subsequently characterized Green as a "narrow exception" based on "unique circumstances," where the excluded statement strongly tended to show that the defendant was innocent. These "compelling circumstances" were not present in Buchanan v. Angelone, ¹⁸⁹ where the declaration against interest...