Virginia Capital Statutory Scheme

The following is a rough guide of the Code of Virginia as it pertains to capital murder.

[Jump to: Elements | Capital Sentencing | Other Provisions]

I. Elements of Capital Murder

1. First degree murder - § 18.2-32 PLUS

2. “Predicate” offenses – § 18.2-31 (must find one or more of the following)

§ 18.2-31(1) – Abduction (with intent to extort money, extort a pecuniary benefit or defile a victim)

§ 18.2-31(2) – Murder for Hire (commission of crime by principal, accessory’s absence at commission of offense; accessory was involved as instigator, advisor or contrivor prior to crime; generally accessory must have promised the principal something of value)

§ 18.2-31(3) – Murder by an Inmate (killing of any person in a Commonwealth-operated detention facility)

§ 18.2-31(4) – Robbery (killing in commission of actual or attempted robbery)

§ 18.2-31(5) – Sex Crimes (rape, attempted rape, forcible sodomy, attempted forcible sodomy, object sexual penetration)
Practice Tip: doesn’t include attempted object sexual penetration

§ 18.2-31(6) – Killing of a Law Enforcement Officer

§ 18.2-31(7) – Multiple Murder (same act/transaction)

§ 18.2-31(8) – Serial Murder (2 murders in 3 years)

§ 18.2-31(9) – Drug Offenses (manufacture, distribution, sale or possession with intent; not including simple possession)

§ 18.2-31(10) – Continuing Criminal Enterprise (“CCE” or “King Pin Rule”; defined in § 18.2-248)

§ 18.2-31(11) – Pregnancy (requires knowledge of pregnancy and intent to cause death to fetus)

§ 18.2-31(12) – Child Under the Age of Fourteen (victim 13 yrs or younger and defendant 21 yrs or older)

§ 18.2-31(13) – Terrorism (act of terrorism defined in § 18.2-46.4 – intent to intimidate civilian population at large or influence a government entity through intimidation)

§ 18.2-31(14) -  Murder of a judge

§ 18.2-31(15) -  Murder of a witness who is under subpoena in a criminal case.

II. Capital Sentencing Procedures

1. Death Eligibility (Aggravating Factors) - § 19.2-264.2 (Conditions for Imposition of Death Sentence) (one of these factors must be found beyond a reasonable doubt)

Future Dangerousness (probability that the defendant would commit criminal acts of violence that would constitute a continuing serious threat to society)

OR

Vileness (conduct was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind or an aggravated battery to the victim)

If no aggravating factor, defendant is sentenced to life in prison without the possibility of parole.

2. Imposition of Death Sentence on “Death Eligible” Defendants - § 19.2-264.4 (Sentencing Proceeding)

a. Mitigating Circumstances - § 19.2-264.4(B) (non-exclusive list)

• Lack of significant history or prior criminal activity
• Offense committed while defendant under influence of extreme mental or emotional disturbance
• Victim was participant in defendant’s conduct or consented to act
• Defendant’s ability to appreciate criminality of actions significantly impaired at time of offense
• Defendant’s age at time of commission of crime
• “Subaverage intellectual functioning” (NOT mental retardation)

b. Sentencing options - § 19.2-264.4(A)

• Life in prison without the possibility of parole
• Death (must be found unanimously; if not, life without parole - § 19.2-264.4(E)

III. Other Provisions

Post-Sentence Reports – § 19.2-264.5 (including Victim Impact Statements, pursuant to § 19.2-299.1)

Procedure for Trial By Jury – § 19.2-264.3 (including provision for resentencing by a new jury on remand)

Victim Impact Evidence

§ 19.2-11.01(B) – Definition of “victim” (persons directly affected by crime; spouse, child, parent, legal guardian)

§ 19.2-299.1 – Victim Impact Statements (court shall permit “victim” to prepare written statements)

§ 19.2-264.4 – Victim Impact Testimony (court shall permit “victims” to testify in presence of accused regarding impact of offense, subject to limitations)

§ 19.2-299.1 – Limitation on Victim Impact Evidence (for identification, economic loss, physical or psychological injury, change in welfare of lifestyle; may not suggest penalty)

Mental Health Experts - § 19.2-264.3:1

§ 19.2-264.3:1(A) – Appointment (upon motion by defense and finding that defendant is indigent, court shall appoint mental health expert for a variety of purposes, set forth in (A))

§ 19.2-264.3:1(B) – Evaluations (evaluations may be combined with guilt/innocence mental evaluations pursuant to § 19.2-169.5)

§ 19.2-264.3:1(C) – Report (expert must prepare and submit report to defense regarding specified items)

§ 19.2-264.3:1(D) – Disclosure (report must be disclosed to prosecution following notice pursuant to subsection (E))

§ 19.2-264.3:1(E) – Notice (defense may present expert testimony in mitigation, but give written notice at least 21 days prior to trial)

§ 19.2-264.3:1(F) – Rebuttal Expert (prosecution entitled to rebuttal expert after defense gives notice pursuant to subsection (E); defense is barred from presenting his expert evidence if he fails to submit to prosecution’s evaluation.)

§ 19.2-264.3:1.3 – Limitation on Rebuttal (prosecution may only use evidence derived by statements made by defendant in rebuttal to issues raised by defendant in mitigation; may not use such evidence to prove aggravating circumstances)

Mental Retardation - § 19.2-264.3:1.1 (determination of mental retardation)

§ 19.2-264.3:1.2 – Expert Assistance (may be available; prosecution may be entitled to rebuttal expert)

§ 19.2-264.3:3 – Limitation on Rebuttal Expert (prosecution may only use evidence derived by statements made by defendant in rebuttal to issues raised by defendant in mitigation; may not use such evidence to prove aggravating circumstances)

Charging of Unrelated Offenses in Same Trial – Va. Sup. Ct. R. 3A:6(b)

Appellate Review of Death Sentence

§ 17.1-313