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Eaton v. Commonwealth9/21/1990
approximately two and one-half hours, the foreman sent a note to the trial court requesting further instruction: "We continue to be deadlocked with the same vote after two and a half hours. The Death Verdict indicates we must be unanimous. The Life imprisonment does not indicate a unanimous vote is necessary. Please clarify." The trial court responded: "I cannot instruct you beyond the instruction which you have received; if you are unable to agree upon the penalty, please advise the court." No other response
came from the jury until three and one-half hours later when it returned a unanimous verdict fixing punishment at death.
Eaton contends that, upon receiving the note, the trial court was required to discharge the jury and impose a life sentence pursuant to Code § 19.2-264.4(E). That provision states: "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." Further, Eaton maintains that if the trial court did not dismiss the jury, it should have given a supplemental charge informing it that if it could not reach a unanimous decision, the trial court would impose a life sentence.
Neither option proposed by Eaton was warranted. Obviously, the jury was not finally deadlocked. When a jury is deciding a matter of the gravity of a capital murder sentence, two and one-half hours is not an excessive time for deliberation. The jury had been instructed fully regarding the law applicable to sentencing, and the trial court did not abuse its discretion in its response to the jury's inquiry.
The state has a strong interest, in a capital sentencing proceeding, in having the conscience of the community expressed by a jury on the ultimate question of life or death. Lowenfield v. Phelps, 484 U.S. 231, 238 (1988). The court is entitled to encourage the jury to continue its deliberations for a reasonable time even after the jury has indicated that it is deadlocked. Id.; U.S. v. Gordon, 817 F.2d 1538, 1543 (11th Cir. 1987), cert. dismissed, 487 U.S. 1265 (1988); accord United States v. Thibodeaux, 758 F.2d 199, 203 (7th Cir. 1985). In our view, Code § 19.2-264.4(E) becomes applicable only after it has become apparent to the trial judge, following a reasonable period of deliberation, that further deliberations would be fruitless and that the jury's deadlock is final.
XII. PASSION, PREJUDICE, AND PROPORTIONALITY
Code § 17-110.1(C) requires us to review the death sentence on the record to consider and determine:
1. Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; and
2. Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
[30-31] We have accumulated the records of all capital murder cases reviewed by this Court, pursuant to Code § 17-110.1(E), giving particular attention to those cases in which the death penalty was based solely upon the "future dangerousness" predicate, e.g., Savino v. Commonwealth, 239 Va. 534, 391 S.E.2d 276 (1990); Fisher v. Commonwealth, 236 Va. 403, 374 S.E.2d 46 (1988), cert. denied, 490 U.S. 1028, 109 S. Ct. 1766 (1989); Pope v. Commonwealth, 234 Va. 114, 360 S.E.2d 352 (1987), cert. denied, 485 U.S. 1015 (1988); Peterson v. Commonwealth, 22
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