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 pretrial 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 deathqualified 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