Commonwealth v. Fisher

This matter comes before me on Defendant’s motion to introduce certain evidence in the event of and during any sentencing phase in this proceeding. The evidence Defendant seeks to introduce relates to prison conditions faced by inmates sentenced to life in prison without parole, and will be offered to rebut any claim by the Commonwealth of the Defendant’s future dangerousness to society.

It is clear from Cherrix v. Commonwealth, 257 Va. 292, 513 S.E.2d 642 (1999), that a defendant has no due process right to present such testimony at sentencing as a mitigation factor. Less clear from case law is a defendant’s right to offer such evidence to rebut an assertion by the Commonwealth of a defendant’s future dangerousness.

The Defendant’s motion to offer such evidence at any sentencing phase in this matter is granted, assuming that the Commonwealth intends to argue that the Defendant is a future danger. Mr. Petrovich may call Mr. Stan Young, Warden of the Virginia Department of Corrections’ Wallen Ridge facility, to testify.