2006 Code of Virginia § 19.2-264.4 - Sentence proceeding

19.2-264.4. Sentence proceeding.

A. Upon a finding that the defendant is guilty of an offense which may bepunishable by death, a proceeding shall be held which shall be limited to adetermination as to whether the defendant shall be sentenced to death or lifeimprisonment. Upon request of the defendant, a jury shall be instructed thatfor all Class 1 felony offenses committed after January 1, 1995, a defendantshall not be eligible for parole if sentenced to imprisonment for life. Incase of trial by jury, where a sentence of death is not recommended, thedefendant shall be sentenced to imprisonment for life.

A1. In any proceeding conducted pursuant to this section, the court shallpermit the victim, as defined in 19.2-11.01, upon the motion of theattorney for the Commonwealth, and with the consent of the victim, to testifyin the presence of the accused regarding the impact of the offense upon thevictim. The court shall limit the victim's testimony to the factors set forthin clauses (i) through (vi) of subsection A of 19.2-299.1.

B. In cases of trial by jury, evidence may be presented as to any matterwhich the court deems relevant to sentence, except that reports under theprovisions of 19.2-299, or under any rule of court, shall not be admittedinto evidence.

Evidence which may be admissible, subject to the rules of evidence governingadmissibility, may include the circumstances surrounding the offense, thehistory and background of the defendant, and any other facts in mitigation ofthe offense. Facts in mitigation may include, but shall not be limited to,the following: (i) the defendant has no significant history of prior criminalactivity, (ii) the capital felony was committed while the defendant was underthe influence of extreme mental or emotional disturbance, (iii) the victimwas a participant in the defendant's conduct or consented to the act, (iv) atthe time of the commission of the capital felony, the capacity of thedefendant to appreciate the criminality of his conduct or to conform hisconduct to the requirements of law was significantly impaired, (v) the age ofthe defendant at the time of the commission of the capital offense, or (vi)even if 19.2-264.3:1.1 is inapplicable as a bar to the death penalty, thesubaverage intellectual functioning of the defendant.

C. The penalty of death shall not be imposed unless the Commonwealth shallprove beyond a reasonable doubt that there is a probability based uponevidence of the prior history of the defendant or of the circumstancessurrounding the commission of the offense of which he is accused that hewould commit criminal acts of violence that would constitute a continuingserious threat to society, or that his conduct in committing the offense wasoutrageously or wantonly vile, horrible or inhuman, in that it involvedtorture, depravity of mind or aggravated battery to the victim.

D. The verdict of the jury shall be in writing, and in one of the followingforms:

(1) "We, the jury, on the issue joined, having found the defendant guilty of(here set out statutory language of the offense charged) and that (afterconsideration of his prior history that there is a probability that he wouldcommit criminal acts of violence that would constitute a continuing seriousthreat to society) or his conduct in committing the offense is outrageouslyor wantonly vile, horrible or inhuman in that it involved (torture)(depravity of mind) (aggravated battery to the victim), and having consideredthe evidence in mitigation of the offense, unanimously fix his punishment atdeath.

Signed ____________________________________ foreman"

or

(2) "We, the jury, on the issue joined, having found the defendant guilty of(here set out statutory language of the offense charged) and havingconsidered all of the evidence in aggravation and mitigation of such offense,fix his punishment at (i) imprisonment for life; or (ii) imprisonment forlife and a fine of $ ______________

Signed ____________________________________ foreman"

E. In the event the jury cannot agree as to the penalty, the court shalldismiss the jury, and impose a sentence of imprisonment for life.

(1977, c. 492; 1980, c. 160; 1990, cc. 316, 754; 1998, c. 485; 2000, c. 838;2003, cc. 1031, 1040.)