COURT OF APPEALS OF VIRGINIA

Present: Judg es Benton, Bray and Bumgardner Argued at Salem, Virginia

GROVER F. HO STETTER, JR. MEMORANDUM OPINION * BY v. Record No. 2378-98-3 JU DGE 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, As sistant Attorn ey 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 Grov er F. Hostetter, Jr ., of driv ing under the influence of alcohol and two coun ts of involuntary manslaughter. He contends the trial judge violated Code § 19.2-295.1 and consti tutional due process pr otections by denying him the right to presen t at the sentencing proceeding relevant mitigating evidence. We affirm the convictions. I. The evidence at tr ial proved that Host etter was driving a truck south on Route 11 a little faster than fifty miles per hour. The truck went onto th e right shoulder of the sout hbound lane,came back into the so uthbound lane, and slid sideways into the northbound lane of th e three-lane highway. Hostette r's truck struck a northbound ca r, killing the car's dr iver and her sister, a passenger. Hostetter did not have a driver's li cense. Th e evidence proved that a st rong odor of alcohol em anated from Hostetter's person and that empty and full beer cans we re found at the scene among the debris . When hospitalized after the accident, Hostetter's bl ood alcohol level was .22 to .24% by weight by volume. The jury convicted Hostetter of two coun ts of involuntary manslaughter, which were lesser-included offenses of the indicted offenses of aggr avated involuntary mansla ughter, and of driving under the influenc e of alcohol. Through evid ence presented at the punishment phase pursua nt to Code § 19.2-295 .1, the Comm onwealth proved Hostetter's prio r criminal record. It established that Hostetter had been convicted of driving under the in fluence of alcohol, destroying a motor vehicle, obstru ction of justice by threat of force, writin g two checks on accounts with insufficient funds, using obscene la nguage over a teleph one, driving a motor vehicle after su spension of hi s driving privil ege, and three counts of assa ult and battery. In mitigation, Host etter proved his sc hool record. In addition, Dr. Elyc e Pike provided expert testimony on Hostetter's limited mental capacity . She testifie d that Hostette r was mildly - 2 -retarded with an I.Q. of sixty and a corresponding mental age of seven or eight and th at a person with th is level of mental retardation wo uld be incapable of abstra ct thinking or problem solving. She to ld the jury that such a person cann ot inhibit behaviors, would be un able to contro l alcohol consum ption, would be incapable of drinking responsibly, would ne ver be able to pass the written test to obtain a driver's li cense, and would have diminished driving ability. Dr. Pike also testified that people with Hostetter' s limited mental capacity tend to mimic as a surviv al mechanism. She testified that "they do n't want to ap pear mentally retarded, but, in some of the exam inations, wher e you have . . . social situations . . . [these ] people have a very, very limited ability to know what's goin g on. And that's what [Hostetter's examination] demonstrated." Cathy Davis, a school psychologist and di rector of education for a public school sy stem, testified as an expert in special education. Consistent with Dr. Pike's testimony, Davis described the limitations of people with Ho stetter's me ntal capacities. She described their di fficulties with controlling alcohol cons umption, writing checks, and everyday li ving skills. Hostetter subm itted a letter from a community service board detailing his pa rticipation afte r the accident in a substance abuse program. Hostetter had atte nded 20 out of 21 sessions, with his one absence being excused. The letter reported that - 3 -"Hostetter has been a very quiet and atte ntive member of the therapy progra m. He just re cently verbally acknowledged his alcoholism, and ha s done so on a regular ba sis since." The letter also stated that, "whe n pressed, [Hostetter] will acknowledge that his alcohol abuse contributed to the deaths of two people." A manager at an automobile dealersh ip testified that Hostetter had work ed for him two ye ars cleaning the facilities and washing cars. He testified that Hostette r had performed his job well, but needed help with "[r]ea ding directions , things like that." Anthony Ruley, who had been co-habiting with Hostetter's sister for the previous 21 years, testifie d that he had known Hostetter for that period and that Host etter had a "real hard" life. When Ruley test ified that Hostetter's father threw beer at Hostetter and shot him, the prosec utor objected th at the testimony was irrelevant. The trial judge su stained the obje ction "to that sort of detail." The trial judg e similarly sustai ned an objection to Ruley's testim ony concerning Hostette r's parents' abuse of alcohol. Rule y then testified that during an argument Hostetter's father shot Host etter in the back. He further test ified that Hostetter "was a go od boy, he's ha d a hard life." In rebuttal, the pr osecutor presented th e testimony of the brother, nephew, and si ster-in-law of the two dead sisters. Each of these witnesse s described the si sters' lives and the impact of their deaths on the family. William Reul ein testifie d that the - 4 -decedents were his only sisters and th at their pare nts had died when he was seve nteen, leaving only th e three of them. He described his sist ers' adult lives and the impact of th eir deaths on him and hi s family. Reulein's son described his first childhood me mories of his aunts, and he testifie d concerning the impact of their deaths on him, his parents, an d his children. Reul ein's wife testified concerning the impact on he r life of the death of her sisters-in-law. She described on e of them as he r best friend. Before instructing th e jury to cons ider Hostette r's sentence, the trial judge pe rmitted Hostette r'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 bu tt, many, many times, [and ran] him out of the house." Other uncles did the same to Host etter. He testified that Hostetter "suck[ed ] his fingers un til he was ab out thirteen or fourteen years old, [until] he'd ha ve sores around his face." He further testif ied that Hostetter's fami ly consumed a lot of alcohol and treate d Hostetter so badly when they were intoxicated that "it was just over the boundaries." He said th at Hostetter's father "basically tr eated him like a dog all his life ." The prosecutor objected on the ground of hearsay to Ru ley's testimony that, when Hostetter wa s eight or nine, his aunt and uncle tied him to a tree in a ce metery and left him fo r more than an hour.

- 5 -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

- 6 -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.

- 7 -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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