COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bray and Bumgardner 

Argued at Salem, Virginia 

GROVER F. HOSTETTER, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 2378-98-3 JUDGE JAMES W. BENTON, JR. 

 FEBRUARY 15, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY 

George E. Honts, III, Judge 

 Ross S. Haine, Assistant Public Defender, for 

appellant. 

 Richard B. Smith, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.

 A jury convicted Grover F. Hostetter, Jr., of driving under 

the influence of alcohol and two counts of involuntary 

manslaughter. He contends the trial judge violated Code 

§ 19.2-295.1 and constitutional due process protections by denying 

him the right to present at the sentencing proceeding relevant 

mitigating evidence. We affirm the convictions. 

 I. 

 The evidence at trial proved that Hostetter was driving a 

truck south on Route 11 a little faster than fifty miles per hour. 

The truck went onto the right shoulder of the southbound lane, 
came back into the southbound lane, and slid sideways into the 

northbound lane of the three-lane highway. Hostetter's truck 

struck a northbound car, killing the car's driver and her sister, 

a passenger. 

 Hostetter did not have a driver's license. The evidence 

proved that a strong odor of alcohol emanated from Hostetter's 

person and that empty and full beer cans were found at the scene 

among the debris. When hospitalized after the accident, 

Hostetter's blood alcohol level was .22 to .24% by weight by 

volume. 

 The jury convicted Hostetter of two counts of involuntary 

manslaughter, which were lesser-included offenses of the indicted 

offenses of aggravated involuntary manslaughter, and of driving 

under the influence of alcohol. Through evidence presented at the 

punishment phase pursuant to Code § 19.2-295.1, the Commonwealth 

proved Hostetter's prior criminal record. It established that 

Hostetter had been convicted of driving under the influence of 

alcohol, destroying a motor vehicle, obstruction of justice by 

threat of force, writing two checks on accounts with insufficient 

funds, using obscene language over a telephone, driving a motor 

vehicle after suspension of his driving privilege, and three 

counts of assault and battery. 

 In mitigation, Hostetter proved his school record. In 

addition, Dr. Elyce Pike provided expert testimony on Hostetter's 

limited mental capacity. She testified that Hostetter was mildly 

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retarded with an I.Q. of sixty and a corresponding mental age of 

seven or eight and that a person with this level of mental 

retardation would be incapable of abstract thinking or problem 

solving. She told the jury that such a person cannot inhibit 

behaviors, would be unable to control alcohol consumption, would 

be incapable of drinking responsibly, would never be able to pass 

the written test to obtain a driver's license, and would have 

diminished driving ability. 

 Dr. Pike also testified that people with Hostetter's limited 

mental capacity tend to mimic as a survival mechanism. She 

testified that "they don't want to appear mentally retarded, but, 

in some of the examinations, where you have . . . social 

situations . . . [these] people have a very, very limited ability 

to know what's going on. And that's what [Hostetter's 

examination] demonstrated." 

 Cathy Davis, a school psychologist and director of education 

for a public school system, testified as an expert in special 

education. Consistent with Dr. Pike's testimony, Davis described 

the limitations of people with Hostetter's mental capacities. She 

described their difficulties with controlling alcohol consumption, 

writing checks, and everyday living skills. 

 Hostetter submitted a letter from a community service board 

detailing his participation after the accident in a substance 

abuse program. Hostetter had attended 20 out of 21 sessions, with 

his one absence being excused. The letter reported that 

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"Hostetter has been a very quiet and attentive member of the 

therapy program. He just recently verbally acknowledged his 

alcoholism, and has done so on a regular basis since." The letter 

also stated that, "when pressed, [Hostetter] will acknowledge that 

his alcohol abuse contributed to the deaths of two people." 

 A manager at an automobile dealership testified that 

Hostetter had worked for him two years cleaning the facilities and 

washing cars. He testified that Hostetter had performed his job 

well, but needed help with "[r]eading directions, things like 

that." 

 Anthony Ruley, who had been co-habiting with Hostetter's 

sister for the previous 21 years, testified that he had known 

Hostetter for that period and that Hostetter had a "real hard" 

life. When Ruley testified that Hostetter's father threw beer at 

Hostetter and shot him, the prosecutor objected that the testimony 

was irrelevant. The trial judge sustained the objection "to that 

sort of detail." The trial judge similarly sustained an objection 

to Ruley's testimony concerning Hostetter's parents' abuse of 

alcohol. Ruley then testified that during an argument Hostetter's 

father shot Hostetter in the back. He further testified that 

Hostetter "was a good boy, he's had a hard life." 

 In rebuttal, the prosecutor presented the testimony of the 

brother, nephew, and sister-in-law of the two dead sisters. Each 

of these witnesses described the sisters' lives and the impact of 

their deaths on the family. William Reulein testified that the 

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decedents were his only sisters and that their parents had died 

when he was seventeen, leaving only the three of them. He 

described his sisters' adult lives and the impact of their deaths 

on him and his family. 

 Reulein's son described his first childhood memories of his 

aunts, and he testified concerning the impact of their deaths on 

him, his parents, and his children. Reulein's wife testified 

concerning the impact on her life of the death of her 

sisters-in-law. She described one of them as her best friend. 

 Before instructing the jury to consider Hostetter's sentence, 

the trial judge permitted Hostetter's counsel to proffer Ruley's 

expected testimony. Ruley said that Hostetter "had a terrible 

life." When Hostetter was young, his father "[threw] beer on him, 

kick[ed] him in the butt, many, many times, [and ran] him out of 

the house." Other uncles did the same to Hostetter. He testified 

that Hostetter "suck[ed] his fingers until he was about thirteen 

or fourteen years old, [until] he'd have sores around his face." 

He further testified that Hostetter's family consumed a lot of 

alcohol and treated Hostetter so badly when they were intoxicated 

that "it was just over the boundaries." He said that Hostetter's 

father "basically treated him like a dog all his life." The 

prosecutor objected on the ground of hearsay to Ruley's testimony 

that, when Hostetter was eight or nine, his aunt and uncle tied 

him to a tree in a cemetery and left him for more than an hour. 

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 In support of the proffer, Hostetter's counsel argued as 

follows: 

Your Honor, I think there's, part of the 

problem here is all the victim impact 

testimony comes in, explaining the impact of 

all these events on the victims' families, 

and going into great detail, in describing 

who the people were, or who the victims 

were, in this case, they're humanized, 

they're brought in from children to 

adulthood, and the jury's allowed to hear 

all that evidence as, as to who the victims 

are as people in this case, what we are 

trying to do, is present some evidence as to 

who the defendant is in this case, his life, 

his life history, what kind of person he is, 

what kind of background he comes from, what 

the jury had now, is this view of the 

victims and nothing from the defendant, so, 

so there's a confrontation issue here. . . . 

 The jury recommended a sentence of twelve months in jail 

for driving under the influence of alcohol and ten years on each 

count of involuntary manslaughter. The trial judge imposed 

those sentences and made the twelve month sentence concurrent 

with the ten year sentences for a total of twenty years. 

 II. 

 In pertinent part, Code § 19.2-295.1 provides that in the 

"proceeding limited to the ascertainment of punishment . . . [, 

after] the Commonwealth has introduced . . . evidence of prior 

convictions, . . . the defendant may introduce relevant, 

admissible evidence related to punishment." Applying this 

statute, the Supreme Court ruled as follows: 

[W]e hold that a trial court, in determining 

what evidence is relevant to punishment 

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under Code § 19.2-295.1 may be guided in the 

exercise of its discretion, subject to the 

rules of evidence governing admissibility, 

by the factors set forth in Code 

§ 19.2-264.4(B), as interpreted in Coppola 

[v. Commonwealth, 220 Va. 243, 257 S.E.2d 

797 (1979)]. The kind of evidence 

contemplated by [Code] § 19.2-295.1 bears 

upon the record of the defendant and the 

nature of his crime. Evidence of a good 

previous record, and extenuating 

circumstances tending to explain, but not 

excuse, the commission of the noncapital 

crime is admissible mitigating evidence. 

And, a trial court's discretionary ruling on 

this issue should not be disturbed on appeal 

absent a clear abuse of discretion. 

Commonwealth v. Shifflett, 257 Va. 34, 44, 510 S.E.2d 232, 236 

(1999) (footnote omitted). 

 Assuming without deciding that the evidence proffered by 

Hostetter was admissible, we hold that the error in excluding it 

was harmless. The defense proved extensive facts concerning 

Hostetter's mental deficiencies. In addition, Ruley testified 

that Hostetter's life had been "[r]eal hard," that Hostetter 

lived with his mother "practically all his life," that 

Hostetter's father had shot him in the back and threw beer cans 

at him, and that Hostetter "was a good boy, he's had a hard 

life." In addition, the jurors were aware of Hostetter's 

present and past crimes. 

 Given this evidence, it cannot reasonably be said that the 

jurors' verdict would have been different if they had also known 

that Hostetter's father and uncles had regularly thrown beer on 

him, kicked, and hit him. See Lavinder v. Commonwealth, 12 Va. 

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App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (holding that error 

is harmless when we can conclude "had the error not occurred, 

the verdict would have been the same"). Moreover, the 

introduction of evidence that Hostetter still sucked his thumb 

at age fourteen and was exposed to excessive alcohol consumption 

in the family would not have added any additional persuasive 

value to Hostetter's evidence. We note that Hostetter's expert 

witness testified concerning his limited mental capacity and his 

inability to control alcohol consumption or to drink 

responsibly. We cannot conclude that the verdict would have 

been affected by testimony tending to prove that these 

conditions had a genesis in his family life in addition to his 

mental retardation. Clearly, evidence was presented to the jury 

that Hostetter's problems flowed from extenuating circumstances. 

 Accordingly, we affirm the convictions. 

 Affirmed. 

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