                   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.


     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,


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
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.



                               - 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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