ANDREWS v. COMMONWEALTH

evant issue is whether the circuit court erred in admitting victim impact evidence arising from an unrelated crime over Andrews' objection. If the evidence was improperly admitted, the burden would not be upon Andrews to show that its admission was prejudicial, but upon the Commonwealth to show that the court's error in admitting the evidence was harmless because no prejudice could have resulted.

[45-47] In Virginia, "the death penalty may not be imposed unless the trier of fact finds one or both of the two aggravating factors that we have referred to as `vileness' and `future dangerousness. `" Schmitt v. Commonwealth, 262 Va. 127, 149, 547 S.E.2d 186, 201 (2001), cert. denied, 534 U.S. 1094 (2002). We have held that evidence of unadjudicated criminal conduct is admissible to determine a defendant's future dangerousness because it has a tendency to show that the accused would commit criminal acts of violence in the future. See Walker v. Commonwealth, 258 Va. 54, 64-65, 515 S.E.2d 565, 571 (1999), cert. denied, 528 U.S. 1125 (2000); Stockton v. Commonwealth, 241 Va. 192, 209-10, 402 S.E.2d 196, 206 (1991), cert. denied, 502 U.S. 902 (1991). We have also held that victim impact testimony regarding a capital offense is admissible because it is probative of the depravity of mind component of the vileness predicate. See Weeks v. Commonwealth, 248 Va. 460, 476, 450 S.E.2d 379, 389-90 (1994), cert. denied, 516 U.S. 829 (1995). Victim impact testimony regarding unadjudicated criminal conduct, however, is not relevant to the vileness predicate because the testimony concerns an offense unrelated to the capital offense upon which the defendant is being sentenced.

Code § 19.2-264.4, in pertinent part, provides that:

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. . . .

A1. In any proceeding conducted pursuant to this section, the court shall permit the victim, as defined in § 19.2-11.01, upon the motion of the attorney for the Commonwealth, and with the consent of the victim, to testify in the presence of the accused regarding the impact of the offense upon the victim.

(Emphasis added.) The plain language of this statute limits victim impact testimony to "the impact of the offense," referring to an "offense which may be punishable by death." Accordingly, as a matter of law, victim impact testimony at a proceeding held in a capital murder trial to determine whether the defendant shall be sentenced to death or life imprisonment is limited to the testimony of the victims, as defined in Code § 19.2-11.01(B), of the capital offense for which the defendant has been found guilty.

Generally, the victim is defined in Code § 19.2-11.01(B) as a person "who has suffered physical, psychological or economic harm" as the result of the commission of a criminal act and includes, among others, the child of that person.

In this case, neither Kennedy nor her father was a victim of the capital murders for which Andrews had been found guilty. Kennedy's testimony, by the Commonwealth's own admission at trial, was solely presented as victim impact testimony of unrelated and unadjudicated criminal conduct. We therefore hold that the circuit court erred in admitting Kennedy's testimony. Moreover, because it is self-evident that the jury could have based its penalty-determination verdict imposing the death sentences on Andrews based in part on consideration of this improperly admitted evidence, we cannot say that this error was harmless. Accordingly, we must vacate the death sentences and remand the case for a new penalty-determination proceeding.

Because we have determined that there was reversible error in the penalty-determination phase of Andrews' trial which will necessitate a remand for a new penalty-determination proceeding, we need not conduct the inquiry prescribed by Code § 17.1-313(C) "[w]hether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor" and "[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant." Atkins v. Commonwealth, 257 Va. 160, 179-80, 510 S.E.2d 445, 457 (1999). Nonetheless, we will briefly address additional issues concerning the conduct of the penalty-determination phase of the trial that are likely to have relevance on remand. Id. at 180, 510 S.E.2d at 457; see also Powell, 261 Va. at 535, 552 S.E.2d at 357.

C. Exclusion of Mitigating Evidence

As stated in the opening brief, the assignments of error that Andrews addresses under his eighth question presented are:

29. The trial court erred in preventing Andrews from introducing relevant and material testimony from Gary Bass of the Virginia Department of Corrections.

30. The trial court erred by excluding relevant mitigating evidence.

113. The trial court erred in excluding the relevant mitigating testimony of Caroline Long Burry at the penalty phase.

115. The trial court erred in excluding mitigating evidence of a poem that Andrews wrote.

116. The trial court erred in preventing Andrews from admitting and publishing to the jury the box containing his father's remains as mitigation evidence.

117. The trial court erred in preventing Andrews from presenting relevant testimony to rebut the prosecution's allegation that Mr. Andrews would constitute a "continuing serious threat to society."

i. Admission of Cremains

Cremains, commonly referred to as ashes, are the human remains collected following cremation of the body. See, e.g., Code § 54.1-2808.1; Shilling v. Baker, 279 Va. 720, 727-28, 691 S.E.2d 806, 810-11 (2010).

Taymullah, Andrews' mother, testified that when Andrews was 14 years old, his father was murdered while on death row in a penitentiary in Texas. After the father was cremated, Taymullah suggested to her sons that they scatter their father's cremains at a local reservoir, but Andrews resisted the idea. Instead, Andrews kept the box of cremains in his room and eventually carried them around in a backpack "[e] very where he went."

When Andrews' counsel attempted to show the box of cremains to the jury, the circuit court inquired about the relevance of doing so. Andrews' counsel acknowledged, "I'm not trying to prove anything," but maintained that the cremains had a "dramatic effect" on Andrews' life and that his mother should be allowed to take the box of cremains from the backpack and show it to the jury. The Commonwealth questioned the probative value of showing the jury the cremains and argued that it was "calculated purely to appeal to the emotion of the jurors." The court agreed that showing the jury the box of cremains was "not probative of anything," but ruled that it would allow Taymullah to look inside the backpack and identify the box of cremains as those that Andrews carried around with him.

In accord with the circuit court's ruling, Taymullah looked inside Andrews' backpack and testified that the black box inside contained Andrews' father's cremains. Photographs of the backpack and the black box then were introduced into evidence without objection.

Andrews contends that the box of his father's cremains is "powerful mitigating evidence." Apart from "squeamishness," Andrews maintains there was no reason for the circuit court to prevent the jury from seeing this significant item of his life history. Andrews asserts that if a defendant has "no right to sanitize" the evidence against him, then the Commonwealth has no right to sanitize a defendant's mitigation evidence. Andrews recognizes the unsettling and disturbing nature of presenting physical evidence of human remains, but asserts that the box of cremains is a critical part of his background and character which the jury was entitled to see.

The Commonwealth responds that the effort to show the box of cremains to the jury was probative of no particular fact and was attempted only to provoke an emotional reaction from the jury. The Commonwealth alleges that Andrews' counsel conceded this at trial with the statement, "I'm not trying to prove anything." In any event, the Commonwealth contends that Andrews can show no prejudice from the circuit court's ruling in light of the testimony of his mother that he carried the box of cremains around in his backpack.

After Taymullah testified, a photograph of the box was entered into evidence. Thus, the jury was only denied the opportunity to see the actual box of cremains. We cannot see, nor has Andrews established, how showing the jury the actual box of cremains would have any probative value. Accordingly, we hold that the circuit court did not err in preventing the jury from seeing the box of cremains.

ii. Admission of Andrews' Poem

Taymullah also testified that Andrews loved to write poetry. Andrews' counsel attempted to introduce into evidence a poem that Andrews purportedly had written before the crimes:

I've been struggling in this smokeless fire for 19 years

over my lifetime I shed my pain through unwanted tears been through hell back burning since adalescence [( sic)]

will I enter heaven or return for final destination born into a world filled with complete darkness didn't understand love so my heart hardened forereal forrea] [( sic)]

The Commonwealth objected to the poem as hearsay. Andrews' counsel argued that it was not hearsay because it was "not offered for the truth of the matter asserted." Rather, it was "offered to show that he writes poems and things of that nature." The circuit court ruled that the poem was inadmissible.

Andrews contends that the poem was not hearsay because it was not offered for the truth of the matter asserted because he was obviously not seeking to prove that he had been in "a smokeless fire for 19 years" or that the world is "filled with complete darkness." Rather, Andrews maintains that the poem was offered to reveal his character and to give the jurors a glimpse of his personality. Moreover, Andrews asserts that the poem was highly relevant to the jurors' sentencing decision and that "virtually no limits are placed on the relevant mitigating evidence a capital defendant may introduce concerning his own circumstances." Tennard v. Dretke, 542 U.S. 274, 285 (2004) (internal quotation mark omitted); Lockett v. Ohio, 438 U.S. 586, 608 (1978). Andrews stresses that since the Commonwealth repeatedly portrayed him as a "killing machine," it was error to exclude this evidence of his "humanity, insight, thoughtfulness, and feelings."

The Commonwealth responds that the poem was nothing more than self-serving hearsay, not subject to cross-examination. The Commonwealth also contends the poem was cumulative evidence because it was not probative of any fact not established by his mother's testimony that Andrews wrote poetry. The Commonwealth finally contends that Rule 5:25 bars Andrews' assertion that the content of the poem would influence the jurors in their decision about whether his life was worth preserving.

[51-52] We have repeatedly held that "[a]n out-of-court statement not admitted for `the truth of the matter asserted' is not hearsay, and therefore is not barred by the general rule against the admissibility of hearsay." Hodges v. Commonwealth, 272 Va. 418, 432, 634 S.E.2d 680, 687 (2006). In this case, the poem was offered as evidence of Andrews' character; it therefore was not barred by the hearsay rule. Moreover, Andrews should have been able to present the poem as mitigating evidence against the Commonwealth's remarks that Andrews was a "killing machine." Finally, the poem itself was not cumulative of the fact that Andrews wrote poetry because the jury was not given the opportunity to hear or read the type of poetry Andrews wrote and give weight, if any, to its mitigating effect. For these reasons, we hold that the circuit court erred in excluding the poem from evidence, and its admission will not be barred in the new penalty-determination proceeding.

iii. Testimony of Gary Bass

The Commonwealth objected to the anticipated testimony of Gary Bass, Chief of Operations for the Virginia Department of Corrections. The Commonwealth argued that Bass' anticipated testimony about general prison conditions was prohibited under our decision in Walker, 258 Va. at 70, 515 S.E.2d at 574-75, excluding so-called "prison life" evidence. See also, e.g., Burns, 261 Va. at 338-40, 541 S.E.2d at 893; Cherrix v. Commonwealth, 257 Va. 292, 310, 513 S.E.2d 642, 653, cert. denied, 528 U.S. 873 (1999). Andrews' counsel responded that Bass would testify to how co-defendants such as Andrews and Crawford will not have contact with each other in prison. Andrews' counsel then made a specific proffer of Bass' testimony concerning the various levels of prison security that Andrews would be designated to if sentenced to life without parole. The Commonwealth again objected to Bass' proposed testimony, arguing that it was about general prison conditions, which are not relevant to the future dangerousness inquiry.

The circuit court limited Bass' testimony to two questions: (1) whether Bass was aware of policies and procedures of management of inmates within the Department of Corrections, and (2) whether steps will be taken to segregate Andrews from an individual with whom he had a negative contact in the past. During Bass' testimony, the court allowed an addition question: whether these policies of the Department of Corrections have been successful in the past. The court disallowed any additional questions regarding prison life testimony.

During its closing argument, the Commonwealth made the following statements:

If [Andrews] is given life in prison, one day there's going to be an error. Guards are going to get too close, an inmate is going to get too close, the door is going to be accidently left open and the Defendant is going to act again.

. . . .

Now, if the Defendant is given life in prison, he's going to be in a prison. He's going to have a day-to-day life. And who knows whether that's good or bad; I suspect it's not (unintelligible).

But there's always that possibility that during the period in time that he's imprisoned that he'll have a good day. Food[`s] better than it used to be, a visitor came, guards didn't hassle me today, got to watch T.V., something. There's a possibility if the Defendant is given life in prison that he's going to have a good day.

He doesn't deserve a good day. The victims don't get that. He took everything these victims had and everything they ever will have. You see the prison can't treat him inhumanly. They've got to treat him- they've got to feed him, they've got to give him some recreation. They've got to take care of him. There's a possibility he's going to have a good day.

Andrews' counsel moved the circuit court to reopen the case and allow Bass to testify, arguing that the Commonwealth "open[ed] the door" when it talked about "what [a] day in the life of prison would be and how there could be a good day in prison and discussed prison life testimony" that Andrews was not allowed to provide. The court agreed to instruct the jury to disregard the statements made by the Commonwealth concerning prison life evidence and to consider only the evidence "from Mr. Bass and the Department of Corrections."

The circuit court then asked the Commonwealth's Attorney if he was going to make any references to prison life in his rebuttal. The Commonwealth's Attorney replied, "I am indeed." The court stated it would therefore give the instruction after the closing arguments had concluded. Andrews' counsel asked that the Commonwealth not be allowed to make any further argument regarding prison life during rebuttal. The court responded, "We'll see what he says. If he . . . says something inappropriate, we'll deal with it."

During the Commonwealth's rebuttal, the circuit court overruled Andrews' further objection to the interjection of commentary on prison life after the Commonwealth asserted to the jury that "[t]here is no safe haven for [Andrews.] There is no locking him up and throwing away the key and forgetting about it." Before submitting the case to the jury, the court instructed the jurors to "disregard any of [the Commonwealth's] arguments or statements regarding prison life."

[53-54] We have consistently held that evidence of general prison conditions is not relevant to the future dangerousness inquiry. See Morva, 278 Va. at 350, 683 S.E.2d at 565; Porter, 276 Va. at 247-52, 661 S.E.2d at 437-40; Juniper, 271 Va. at 427, 626 S.E.2d at 424. Accordingly, we reject Andrews' bare assertion that our prior cases were wrongly decided and find that the circuit court properly excluded Bass from testifying regarding general prison conditions such as the various security measures utilized in maximum security facilities. However, when the Commonwealth acknowledged that it would reference general prison conditions during its closing, the court should have been proactive and prohibited the Commonwealth from doing so, instead of taking a "wait-and-see" approach. Moreover, having already decided to give a curative instruction after the first instance of improper argument, the court clearly should have prevented the Commonwealth from making any additional improper arguments of the same type.

It is not necessary today to address whether the Commonwealth "opened the door" to prison life evidence by referring to general prison conditions in its closing argument. Nevertheless, we observe that the doctrine of "curative admissibility" allows a party to introduce otherwise inadmissible evidence, such as prison life evidence, when necessary to counter the effect of improper evidence or argument previously presented by the other party. See Elliott, 267 Va. at 417, 593 S.E.2d at 284.

Having persuaded the circuit court to prevent Andrews from presenting general prison life evidence, the Commonwealth gained an unfair advantage in referring to prison conditions in its closing. Even after the court had ruled that such argument was improper, the Commonwealth's Attorney's emphatic assertion that he would return to the topic in his rebuttal demonstrates the importance the Commonwealth placed on this aspect of its argument in impressing upon the minds of the jurors the possibility that sentencing Andrews to life in prison would be inadequate to protect society or sufficiently punish him for his crimes.

Because the necessity for remand on other grounds effectively moots the question of whether the circuit court properly exercised its discretion by only giving a curative instruction to the jury rather than permitting Andrews to reopen the case to allow Bass to testify on "prison life" topics, we express no opinion thereon. However, we reiterate that in this case it was plain error to delay giving the instruction and to permit the Commonwealth to compound the error that necessitated that instruction during its rebuttal argument.

iv. Testimony of Dr. Caroline Long Burry

Andrews contends that the circuit court erred in excluding relevant mitigating evidence from Dr. Caroline Long Burry, associate professor at the University of Maryland's School of Social Work. Dr. Burry was prepared to testify regarding the risk factors and protective factors that have been identified by the Department of Justice as predictive of future violent conduct in youth. Andrews' counsel proffered that once Dr. Burry identified those factors and established the empirical framework, then it would be left to the jury to determine which factors applied to Andrews and to determine the mitigating value of those factors. Andrews' counsel later explained that Dr. Burry's testimony was not offered to predict future dangerousness, rather it was offered as mitigation evidence to show Andrews' "background and circumstances as a child" and the likely violence in his future based on the risk factors.

The circuit court excluded Dr. Burry's testimony, reasoning that her testimony, based solely on empirical data, was not admissible because it is not particularized to Andrews. The court, however, allowed Andrews to proffer a record of Dr. Burry's testimony.

Outside the presence of the jury, Dr. Burry testified to the risk factors that the Department of Justice has identified in youth that are predictive of future violent conduct. Before doing so, Dr. Burry stressed that the risk factors are cumulative, meaning an individual with more risk factors is more prone to later violence. Dr. Burry identified individual risk factors such as hyperactivity, lack of concentration, restlessness, risk-taking, aggressiveness, early initiation of violent behavior, nonviolent antisocial behavior, and favorable attitudes toward antisocial or deviant behavior. Dr. Burry next identified family risk factors such as parent criminality, child neglect and abuse, parental substance abuse, parent/child separation, and instability. Dr. Burry further identified risk factors related to education, peer groups, and community. Finally, Dr. Burry identified counterbalancing protective factors such as intelligence, positive social orientation, resilient temperament, and attachment to pro-social family members that make future violent conduct less likely even when risk factors are present.

Andrews contends that given the mitigation evidence they heard regarding his background, the jurors could have put Andrews into a framework of risk factors versus protective factors. Andrews maintains that Dr. Burry's testimony would have enabled the jury to understand that, through no fault of his own, Andrews was subject to many of these risk factors. For example, Dr. Burry testified that "none of these [risk factors] are a youngster's choice. You know, your family is your family. You don't choose to be maltreated. You don't choose to have a parent be a criminal or a parent abusing substances." Andrews asserts that Dr. Burry's testimony would have helped the jury to understand why his horrific and traumatic background diminishes his moral culpability. According to Andrews, this is the essence of mitigating evidence and should not have been denied. See Penry v. Lynaugh, 492 U.S. 302, 319 (1989) ("[E]vidence about the defendant's background and character is relevant because of the belief, long held by . . . society, that defendants who commit criminal acts that are attributable to a disadvantaged background . . . may be less culpable than defendants who have no such excuse." (internal quotation marks omitted)).

The Commonwealth responds that the circuit court properly excluded Dr. Burry's testimony. The Commonwealth contends her evidence was not admissible to rebut the claim of Andrews' future dangerousness because it was evidence about the dangerousness of other offenders. Moreover, the Commonwealth asserts that her testimony was not relevant because it related to factors in juveniles that predict violent conduct, but it was never proffered that her evidence would have any scientific validity to predict that the then 27-year-old Andrews would not be violent. Finally, the Commonwealth maintains that the jurors needed no expert assistance in order to determine whether the disturbing facts of Andrews' life provided a reason to sentence him to life instead of death. We disagree.

A defendant in a capital case has the constitutional right to present virtually unlimited relevant evidence in mitigation. See Tennard and Lockett, supra. The Commonwealth misconstrues the point of Dr. Burry's mitigating evidence testimony. As Andrews' counsel made clear at trial, Dr. Burry's testimony was not offered as rebuttal to the future dangerousness inquiry. Instead, Dr. Burry's testimony was offered to explain Andrews' background and to show that the person he is today was the product of forces beyond his control. We are of opinion that this mitigating evidence presents an issue regarding the weight of the evidence, a question for the jury, rather than the admissibility or relevance of the evidence. We hold that the circuit court erred in excluding the testimony of Dr. Burry in its entirety. Accordingly, upon remand, Andrews will be permitted to introduce evidence such as that proffered generally by Dr. Burry for the purpose of mitigation.

D. Prosecutorial Misconduct

As stated in the opening brief, the assignments of error that Andrews purports to address under his tenth question presented are:

26. Andrews' rights were violated when the prosecutor made improper arguments that were based upon facts not in evidence.

27. The trial court erred in refusing to prevent the prosecutor from making improper references to prison conditions during closing arguments.

28. The prosecuting attorneys violated Andrews' rights by making improper remarks that were calculated to arouse prejudice and biases against Andrews.

118. The prosecuting attorneys violated Andrews' rights by improperly purporting to speak for the victims and their families in asking the jury to return a sentence of death.

119. The prosecuting attorneys violated Andrews' rights by referring to facts not in evidence and using rhetoric intended to inflame the passions and biases of the jury at the penalty phase.

Because at the time of the errors alleged in assignments of error 26, 28, and 119 Andrews failed to timely object, timely ask for a cautionary instruction, or timely move for a mistrial, we will not consider his arguments with regard to these issues. Rule 5:25; Schmitt v. Commonwealth, 262 Va. 127, 148, 547 S.E.2d 186, 200-01 (2001), cert. denied, 534 U.S. 1094 (2002) ("Unless a defendant has made a timely motion for a cautionary instruction or for a mistrial, we will not consider his assignments of error alleging that improper remarks were made by the prosecutor."). Similarly, on brief Andrews does not make a particularized argument concerning the alleged error by the court "in refusing to prevent the prosecutor from making improper references to prison conditions during closing arguments" as a basis for finding prosecutorial misconduct. Accordingly, despite having concluded in the prior section of this opinion that the court erred in permitting the Commonwealth to address prison life conditions in its closing argument, we hold that Andrews has waived his right to rely upon this issue, as stated in assignment of error 27, to support his claim of prosecutorial misconduct. Rule 5:17(c)(4); Rule 5:27. Thus, we will address only assignment of error 118.

"`The making of improper statements in argument is reversible error, where such statements are so impressive as to remain in the minds of the jurors and influence their verdict.' " Kitze v. Commonwealth, 246 Va. 283, 288, 435 S.E.2d 583, 585 (1993) (quoting McLane v. Commonwealth, 202 Va. 197, 205, 116 S.E.2d 274, 281 (1960)). In his opening brief, Andrews provided a citation to the joint appendix indicating the point in the closing argument he contends the Commonwealth purported to speak on behalf of the victims and their families. The citation provided, however, is to a portion of Andrews' counsel's closing argument. We have reviewed the Commonwealth's entire closing argument and we have concluded that Andrews' argument is most likely directed toward the following statement made by the Commonwealth toward the end of its closing argument following the assertion that Andrews would have "good days" in prison:

The victims don't even get the prospect, the possibility, they don't get the prospect of a good day, the possibility of that. They don't get a fraction of the life that this Defendant gets. They get nothing. They don't get the opportunity to cope with their surroundings. He does. The victims[] lot in these cases are not even Incomparable to the Defendant. He gets life; they get death. It's really what we're talking about here, folks. No one can call that justice.

It would mean that the value of the victims or the dignity of the victims as compared to this Defendant's was exceedingly small. Exceedingly small. There are victims and there's families of victims and those grief stricken survivors confronted with butcher[y] of the Defendant-the butchery of someone who's near and dear.

What capital punishment says to those folks is we take your loss seriously. We value these victims. We know that these victims are filled with rage and pain.

Contrary to Andrews' assertion that the Commonwealth purported to speak for the victims and their families, the context of the prosecutor's statements was a proper comment on victim impact as it relates to the sentencing decision to be made by the jury. Cf. Weeks v. Commonwealth, 248 Va. 460, 476, 450 S.E.2d 379, 390 (1994), cert. denied, 516 U.S. 829 (1995). Thus, based upon our review of the record, we cannot say that Andrews was "substantially prejudiced" by the prosecutor's statement during closing argument. See Avent, 279 Va. at 204-05, 688 S.E.2d at 260-61.

VI. CONCLUSION

For these reasons, we will affirm Andrews' convictions for capital murder and the other felony convictions and terms of imprisonment imposed thereon. We will vacate the four death sentences, and remand the case for a new penalty-determination proceeding to be conducted consistent with the views expressed in this opinion on the two convictions under Code § 18.2-31(4) and, at the Commonwealth's election, the conviction under either Code § 18.2-31(7) or Code § 18.2-31(8).

Record No. 100374 — Affirmed in part, vacated in part, and remanded.

Record No. 100375 — Affirmed.