VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond, on Thursday, the 19th day of
January, 2006.
In Re: Robert F. Horan, Jr.,
Commonwealth’s Attorney, Petitioner
Record Nos. 060023 and 060024
Upon Petitions for a Writ of Mandamus and a Writ of Prohibition
Proceeding under the Court’s original jurisdiction
pursuant to Article VI, § 1 of the Constitution of Virginia
and Code § 17.1-309, the petitioner, Robert F. Horan, Jr.,
Commonwealth’s Attorney of Fairfax County, seeks the
issuance of a writ of mandamus and/or a writ of prohibition
directed to the Honorable Leslie M. Alden, Judge of the
Circuit Court of Fairfax County. Upon consideration of the
petitions and the parties’ briefs, a writ of mandamus is
issued and the petition for a writ of prohibition is
dismissed.
On January 3, 2006, in the capital murder case of
Commonwealth v. Dinh Pham, Criminal No. K105537, pending in the
Circuit Court of Fairfax County, Judge Alden granted Pham’s
motion to prohibit the death penalty. In a letter opinion
incorporated in that order, Judge Alden concluded that the
Vienna Convention on Consular Relations and Optional Protocol on
Disputes, Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820 (the
“Vienna Convention”), confers judicially enforceable individual
rights and that the Commonwealth violated those rights with
regard to Pham. Judge Alden further concluded that the
preclusion of the death penalty was an appropriate remedy for
the violation of Pham’s rights under the Vienna Convention and
thus prohibited the Commonwealth from seeking the death penalty
in that criminal proceeding. The Commonwealth’s Attorney then
filed the petitions for a writ of mandamus and a writ of
prohibition.
“Mandamus is an extraordinary remedy employed to compel a
public official to perform a purely ministerial duty imposed
upon him by law.” Richlands Med. Ass’n v. Commonwealth, 230 Va.
384, 386, 337 S.E.2d 737, 739 (1985); accord In re
Commonwealth’s Attorney for the City of Roanoke, 265 Va. 313,
317, 576 S.E.2d 458, 461 (2003). “A ministerial act is ‘one
which a person performs in a given state of facts and prescribed
manner in obedience to the mandate of legal authority without
regard to, or the exercise of, his own judgment upon the
propriety of the act being done.’” Richlands Med. Ass’n, 230
Va. at 386, 337 S.E.2d at 739 (quoting Dovel v. Bertram, 184 Va.
19, 22, 34 S.E.2d 369, 370 (1945)). “However, when the act to
be performed involves the exercise of judgment or discretion on
the part of the court or judge, it becomes a judicial act and
mandamus will not lie.” In re Commonwealth’s Attorney for the
City of Roanoke, 265 Va. at 318, 567 S.E.2d at 461.
As this Court previously explained:
[Mandamus] may be appropriately used and is often used
to compel courts to act where they refuse to act and ought
to act, but not to direct and control the judicial
discretion to be exercised in the performance of the act to
be done; to compel courts to hear and decide where they
have jurisdiction, but not to pre-determine the decision to
be made; to require them to proceed to judgment, but not to
fix and prescribe the judgment to be rendered.
Page v. Clopton, 71 Va. (30 Gratt.) 415, 418 (1878).
The provisions of Code § 18.2-31 specify the offenses that
constitute capital murder in Virginia, each one being punishable
as a Class 1 felony. The authorized punishment for a Class 1
felony is “death, if the person so convicted was 16 years of age
or older at the time of the offense and is not determined to be
mentally retarded . . . , or imprisonment for life and . . . a
fine of not more than $100,000.” Code § 18.2-10(a); see also
Code § 18.2-10(g) (except in cases for which the sentence of
death is imposed, a court may impose life imprisonment without a
fine). In other words, there are three sentencing options if a
defendant is found guilty of capital murder: (1) death; (2) life
imprisonment and a fine of not more than $100,000; or (3) life
imprisonment.
In the context of ruling on a pre-trial motion, Judge Alden
precluded the Commonwealth’s Attorney from seeking the death
penalty in the event Pham is found guilty of capital murder.
Under Judge Alden’s order, only life imprisonment, or life
imprisonment and a fine of not more than $100,000, would be at
issue in a penalty phase hearing. Judge Alden’s pre-trial order
not only eliminated one of the statutorily prescribed sentences
that could be imposed if Pham is found guilty of capital murder,
but her ruling is also tantamount to a refusal by Judge Alden to
conduct a penalty phase hearing at which the “future
dangerousness” and “vileness” aggravating factors set forth in
Code §§ 19.2-264.2 and –264.4(C) would be at issue. The
provisions of Code § 19.2-264.3(C), however, state that “[i]f
the jury finds the defendant guilty of an offense which may be
punishable by death, then a separate proceeding before the same
jury shall be held as soon as practicable on the issue of the
penalty, which shall be fixed as is provided in § 19.2-264.4.”
(Emphasis added.) When the action of a court is “a simple
refusal to hear and decide the case; and this [C]ourt having
held that no appeal lies from such refusal, it is exactly the
case to which the highly remedial writ of mandamus is most
frequently applied, in order to prevent a defect or failure of
justice.” Cowan v. Fulton, 64 Va. (23 Gratt.) 579, 584 (1873).
In Kirk v. Carter, 202 Va. 335, 335, 117 S.E.2d 135, 136
(1960), a petition for a writ of mandamus was filed “to require
the three-judge court . . . to hear and determine an election
contest . . . instituted by the petitioners.” The three-judge
court decided that the complaint filed in the election contest
proceeding had not been properly served on four of the officers
whose elections were being challenged. Id. at 336, 117 S.E.2d
at 136. Consequently, the three-judge court sustained a motion
to dismiss the complaint. Id. In the mandamus proceeding
before this Court, the respondents argued
that the decision represented their composite judicial
discretion as to the right and justice of the motion, and
that the writ of mandamus should not issue to compel a
change in their judicial opinion and thereby provide a
review in a case in which the statute, [former Code] § 24-
439, prohibited an appeal.
Id.
In granting the writ of mandamus, this Court disagreed with
the conclusion of the three-judge court regarding service of
process. The Court concluded that there was no statutory
requirement that the election contest complaint be filed prior
to the service of the complaint on the officers whose elections
were being contested. Id. at 336, 117 S.E.2d at 137. Because
former Code § 24-436 required that, “[i]n judging of such
election or return, the court shall proceed on the merits
thereof and decide the same according to the [C]onstitution and
laws,” this Court held that it was manifest error to deny a
decision on the merits. Id. at 337, 117 S.E.2d at 137. Relying
on the rationale in Richardson v. Farrar, 88 Va. (13 Hans.) 760,
15 S.E. 117 (1892), the Court stated:
[T]he lower court [in Richardson] had declined jurisdiction
on a preliminary question or point of form, and had
erroneously and illegally dismissed the complaint, for
which the petitioners were entitled to a writ of mandamus
directing the lower court to reinstate the case and proceed
to hear and determine it on its merits.
Kirk, 202 Va. at 337, 117 S.E.2d at 137.
Similarly, in Davis v. Sexton, 211 Va. 410, 177 S.E.2d 524
(1970), the Court held that a judge’s ruling in direct
contravention of a specific statutory provision was not within
his discretion. At the time of the decision in Davis, a
municipal judge (of a court not of record) was allowed to act as
counsel of record in cases not pending in the court where the
judge presided or in certain statutorily prescribed localities.
Id. at 411, 177 S.E.2d at 525. Richard W. Davis, a municipal
judge in the City of Radford, entered an appearance in a
criminal case pending in the Circuit Court of Giles County. Id.
at 410, 177 S.E.2d at 525. The circuit court judge hearing the
case entered an order removing Davis as counsel of record,
stating that it was the circuit court’s practice that county and
municipal judges would not be allowed to practice criminal law
in the circuit courts of that judicial circuit. Id. at 411, 177
S.E.2d at 525.
Davis sought a writ of mandamus to compel the circuit court
judge to allow him to practice criminal law in the Circuit Court
of Giles County, as allowed under the relevant statutes in
effect at that time. Id. In response, the circuit court judge
argued that his action fell “within his statutory rule-making
power and his inherent judicial authority.” Id. Since the
statutes specifically allowed judges of courts not of record to
practice law in certain circumstances, this Court held that it
was beyond the scope of the circuit court judge’s authority to
rule otherwise; “[t]he action taken by the [circuit court judge]
was therefore not within his discretion.” Id. at 413, 117
S.E.2d at 526. Thus, the Court issued a writ of mandamus
directing that Davis be permitted to practice criminal law in
the Circuit Court of Giles County. Id.
Similarly, in three cases from the late 1800’s, the Court
found that mandamus was proper because the respective judges
were without authority to decide that they could not hear a
particular case, which they had jurisdiction to decide. See
Page, 71 Va. (30 Gratt.) at 428 (“If a judge . . . refuses to
sign a proper bill, or to proceed to settle the matter of a bill
objected to, he may, in either case, be compelled by mandamus to
act”); Kent, Paine & Co. v. Dickinson, 66 Va. (25 Gratt.) 817,
823 (1875) (“It is well settled that applications for a mandamus
to a subordinate court are warranted by the principles and
usages of law in cases where the subordinate court having
jurisdiction of a case refuses to hear and decide the
controversy”); Cowan, 64 Va. (23 Gratt.) at 585 (mandamus proper
when a court refused to hear a case it had jurisdiction to
decide). Compare In re Commonwealth’s Attorney for Chesterfield
County, 229 Va. 159, 163, 326 S.E.2d 695, 697 (1985) (“by
prescribing a mandatory sentence, the General Assembly . . .
divested trial judges of all discretion respecting punishment”
and thus mandamus was appropriate to compel a trial judge to
implement a mandatory sentence), with In re Commonwealth’s
Attorney for the City of Roanoke, 265 Va. at 319, 576 S.E.2d at
462 (mandamus did not lie to compel a trial judge to enter
judgments of guilt in two criminal cases because “[r]equiring a
court or judge to enter a certain judgment unquestionably
infringes upon the exercise of judicial discretion”).
Pursuant to Code § 19.2-264.4(A), “[u]pon 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.” Before the penalty of death can be
imposed, the Commonwealth must
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.
Code § 19.2-264.4(C).
The role of a circuit court judge with regard to sentencing
when a jury has fixed punishment at death is set forth in Code
§ 19.2-264.5:
When the punishment of any person has been fixed at
death, the court shall, before imposing sentence, direct a
probation officer of the court to thoroughly investigate
the history of the defendant and any and all other relevant
facts, to the end that the court may be fully advised as to
whether the sentence of death is appropriate and
just. . . . After consideration of the report, and upon
good cause shown, the court may set aside the sentence of
death and impose a sentence of imprisonment for life.
Notwithstanding any other provision of law, if the court
sets aside the sentence of death and imposes a sentence of
imprisonment for life, it shall include in the sentencing
order an explanation for the reduction in sentence.
Under this statutory scheme, Judge Alden did not have the
authority to make a sentencing decision when ruling on a pre-
trial motion, thereby implicitly refusing to conduct a penalty
phase hearing with regard to the “future dangerousness” and
“vileness” aggravating factors. If a jury fixes Pham’s
punishment at death, Judge Alden will have the authority, under
Code § 19.2-264.5, to exercise judicial discretion to decide
whether to impose the death penalty. Judge Alden would likewise
have the authority, and thus the discretion, to decide in the
first instance whether to impose the death penalty or life
imprisonment if the case were tried without a jury. See Code
§ 19.2-257. No statute, however, authorizes Judge Alden to
exercise such sentencing discretion in a pre-trial context. In
other words, the action taken by Judge Alden was not within her
discretion. See Davis, 211 Va. at 413, 177 S.E.2d at 526. The
mere fact that Judge Alden made her decision when ruling on a
motion does not render the decision discretionary.
Furthermore, by directing the Commonwealth’s Attorney that
he may not seek the death penalty if Pham is found guilty of
capital murder, Judge Alden performed an executive function and
exercised discretion that resides solely in the Commonwealth’s
Attorney. See Va. Const. art. 3, § 1 (“The legislative,
executive, and judicial departments shall be separate and
distinct, so that none exercise the powers properly belonging to
the others, nor any person exercise the power of more than one
of them at the same time.”); Code § 15.2-1627(B) (“The attorney
for the Commonwealth . . . shall be a part of the department of
law enforcement of the county or city in which he is elected or
appointed, and shall have the duties and powers imposed upon him
by general law, including the duty of prosecuting all warrants,
indictments or informations charging a felony.”); see also
Genesee Prosecutor v. Genesee Circuit Court, 194 N.W.2d 693, 698
(Mich. 1972) (“[t]he conduct of a prosecution on behalf of the
people by the prosecutor is an executive act”); Polikov v. Neth,
699 N.W.2d 802, 808 (Neb. 2005) (“prosecutorial discretion is an
inherent executive power”). “‘[I]t is well established that the
choice of offenses for which a criminal defendant will be
charged is within the discretion of the Commonwealth’s
Attorney.’” Barrett v. Commonwealth, 268 Va. 170, 178, 597
S.E.2d 104, 107-08 (2004) (quoting Kauffmann v. Commonwealth, 8
Va. App. 400, 410, 382 S.E.2d 279, 284 (1989)). In addition,
“the institution of criminal charges, as well as their order and
timing, are matters of prosecutorial discretion.” Bradshaw v.
Commonwealth, 228 Va. 484, 492, 323 S.E.2d 567, 572 (1984). “A
prosecutor has the discretion to decide under which of several
applicable statutes the charges shall be instituted.” Hensley
v. City of Norfolk, 216 Va. 369, 373, 218 S.E.2d 735, 739
(1975). The discretion of the Commonwealth’s Attorney to choose
the offense for which a defendant will be charged includes the
discretion to decide whether to seek the death penalty when
capital murder is the charged offense. See Code § 19.2-163.7
(“If prior to indictment the attorney for the Commonwealth
declares in writing that the Commonwealth will not seek the
death penalty, the capital defense unit attorney may upon motion
before the circuit court seek to withdraw as counsel.”).
In State v. Bloom, 497 So.2d 2 (Fla. 1986), the Florida
Supreme Court granted a writ of prohibition when a trial court
interfered with the discretion of a prosecutor by granting a
defendant’s pre-trial motion to preclude empanelment of death-
qualified jurors and directed the prosecutor to proceed with the
trial as a non-capital case. The court recognized that, under
Florida’s constitution, “the decision to charge and prosecute is
an executive responsibility, and the state attorney has complete
discretion in deciding whether and how to prosecute.” Id. at 3.
The court held that the trial judge had “no authority to
interfere with the prosecutor’s discretion in proceeding with
[the] cause as a death penalty case.” Id. Continuing, the
court noted that allowing a trial judge to make that type of
pre-trial decision regarding the death penalty and its
application would “effectively create a statutorily unauthorized
trifurcated death sentence procedure.” Id.; see also State v.
Dostert, 313 S.E.2d 409, 417 (W.Va. 1984) (because “judicial
interference with the exercise of prosecutorial judgment as to
what charge to bring in a criminal prosecution is
impermissible,” a writ of prohibition was issued).
“Finally, the extraordinary remedy of mandamus may not be
used as a substitute for an appeal.” Richlands Med. Ass’n, 230
Va. at 387, 337 S.E.2d at 740. “[W]hen there is a clear right
to the relief sought, a legal duty to perform the requested act,
and no adequate remedy at law,” a writ of mandamus, however, may
be issued. Ancient Art Tattoo Studio, Ltd. v. City of Virginia
Beach, 263 Va. 593, 597, 561 S.E.2d 690, 692 (2002) (emphasis
added). The provisions of Code § 19.2-398 set forth the
circumstances in which the Commonwealth may appeal from a
circuit court’s pre-trial rulings in a felony case. For
example, the Commonwealth can appeal pre-trial decisions to
suppress evidence. See Code § 19.2-398(A)(2). In this
instance, the Commonwealth’s Attorney cannot, however, appeal
Judge Alden’s decision refusing to conduct a penalty phase
hearing upon proper evidence in accordance with Code §§ 19.2-
264.3(C) and –264.4. Thus, the Commonwealth’s Attorney clearly
has no adequate remedy at law.
For these reasons, the remedy of mandamus is required “in
order to prevent a defect or failure of justice.” Cowan, 64 Va.
(23 Gratt.) at 584. The petition for a writ of mandamus is
granted and the writ is issued directing Judge Alden to allow
the petitioner to seek the death penalty, in accordance with
Code §§ 19.2-264.3(C) and –264.4, in the criminal case of
Commonwealth v. Pham.
This ruling renders moot the petition for a writ of
prohibition, which is therefore dismissed.
The Clerk of this Court shall certify copies of this order
to the petitioner, to the respondent, to counsel for Dinh Pham,
and to counsel for the respondent, which certification shall
have the same force and effect as if a writ of mandamus were
formally issued and served.
This order shall be published in the Virginia Reports.
A Copy,
Teste:
Patricia L. Harrington, Clerk