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1995 SESSION
LD0564346Patrons--McClure, Albo, Bloxom, Brickley, Cantor, Davies, Forbes, Johnson, Marshall, McDonnell, Miller, Mims, O'Brien, Scott, Sherwood, Tata, Way and Wilkins; Senators: Barry, Calhoun, Waddell and Woods
Be it enacted by the General Assembly of Virginia:
1. That § 19.2-264.4 of the Code of Virginia is amended and reenacted as follows:
§ 19.2-264.4. Sentence proceeding.
A. Upon a finding that the defendant is guilty of an offense which may be punishable by death, a proceeding shall be held which shall be limited to a determination as to whether the defendant shall be sentenced to death or life imprisonment. In case of trial by jury, where a sentence of death is not recommended, the defendant shall be sentenced to imprisonment for life.
B. In cases of trial by jury, evidence may be presented as to any matter
which the court deems relevant to sentence, except that
including evidence of the specific harm caused by the defendant's commission
of the offense and the impact that the commission of the offense had on the
victim or victims. For purposes of this section, a victim shall be as
defined in § 19.2-299.1. However, reports under the provisions of §
19.2-299, or under any rule of court, shall not be admitted into evidence.
Evidence which may be admissible, subject to the rules of evidence governing admissibility, may include the circumstances surrounding the offense, the history and background of the defendant, and any other facts in mitigation of the offense. Facts in mitigation may include, but shall not be limited to, the following: (i) The defendant has no significant history of prior criminal activity, (ii) the capital felony was committed while the defendant was under the influence of extreme mental or emotional disturbance, (iii) the victim was a participant in the defendant's conduct or consented to the act, (iv) at the time of the commission of the capital felony, the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was significantly impaired, (v) the age of the defendant at the time of the commission of the capital offense or (vi) mental retardation of the defendant.
C. The penalty of death shall not be imposed unless the Commonwealth shall prove beyond a reasonable doubt that there is a probability based upon evidence of the prior history of the defendant or of the circumstances surrounding the commission of the offense of which he is accused that he would commit criminal acts of violence that would constitute a continuing serious threat to society, or that his conduct in committing the offense was outrageously or wantonly vile, horrible or inhuman, in that it involved torture, depravity of mind or aggravated battery to the victim.
D. The verdict of the jury shall be in writing, and in one of the following forms:
(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 (after consideration of his prior history that there is a probability that he would commit criminal acts of violence that would constitute a continuing serious threat to society) or his conduct in committing the offense is outrageously or wantonly vile, horrible or inhuman in that it involved (torture) (depravity of mind) (aggravated battery to the victim), and having considered the evidence in mitigation of the offense, unanimously fix his punishment at death.
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 having considered all of the evidence in aggravation and mitigation of such offense, fix his punishment at imprisonment for life.
Signed . . . . . . . . . . . . . . . . . . . ., foreman"
E. In the event the jury cannot agree as to the penalty, the court shall dismiss the jury, and impose a sentence of imprisonment for life.