Since Key-El was decided, more courts around the country have held that such evidence is inadmissible, either because it is too ambiguous to be probative, or because it violates the Fifth Amendment. See Combs v. Coyle, 205 F.3d 269 (6th Cir. 2000); People v. Rogers, 68 P.3d 486 (Colo.Ct.App. 2002); State v. Moore, 131 Idaho 814, 965 P.2d 174 (1998); State v. Remick, 149 N.H. 745, 829 A.2d 1079 (2003); State v. Leach, 102 Ohio St.3d 135, 807 N.E.2d 335 (2004); Hartigan v. Commonwealth, 31 Va.App. 243, 522 S.E.2d 406 (1999); State v. Clark, 143 Wash.2d 731, 24 P.3d 1006 (2000); State v. Adams, 221 Wis.2d 1, 584 N.W.2d 695 (1998); Spinner v. State, 75 P.3d 1016 (Wyo. 2003). We think the better view is that the evidence is too ambiguous to be probative when the "pre-arrest silence" is in the presence of a police officer, and join the increasing number of jurisdictions that have so held. To the extent that Key-El is inconsistent with this view, it is hereby overruled.
Two days later, Jerman filed a motion to set aside the verdict on his abduction conviction. He noted that as of his trial date, the rule in Coward v. Commonwealth, 164 Va. 639, 646, 178 S.E. 797, 800 (1935), required that a jury not be informed of post-sentencing considerations that could affect the length of a sentence that a defendant serves. Jerman asked the circuit court to apply the holding in Hartigan v. Commonwealth, 31 Va. App. 243, 522 S.E.2d 406 (1999), which was decided after his trial but before his sentencing. In Hartigan, the Court of Appeals held that "when evidence of prior sentences may lead the jury to speculate that parole is still available to the defendant, a trial judge is required to instruct the jury that the defendant, if convicted, will be ineligible for parole."
The Fifth Amendment privilege is part of a broader evidentiary family of "testimonial privileges." See Hartigan v. Commonwealth, 31 Va. App. 243, 249, 522 S.E.2d 406 (1999). Other members of the family include the spousal privilege, the attorney-client privilege, the doctor-patient privilege, and the priest-penitent privilege.
1 at issue here, we conclude that the statutory interpretation urged by Auer is contrary to the manifest purpose of Code § 19.2-295.1. Plainly, the legislative intent underlying Code § 19.2-295.1 is to assure that sufficient information regarding the convicted defendant's criminal record is provided during the punishment proceeding to enable the jury "`to impose the sentence as seemed to them to be just.'" Hartigan v. Commonwealth, 31 Va.App. 243, 254, 522 S.E.2d 406, 411 (1999) (quoting Coward v. Commonwealth, 164 Va. 639, 646, 178 S.E. 797, 800 (1935)), aff'd en banc, 32 Va.App. 873, 531 S.E.2d 63 (2000). "`The sentencing decision . . . is a quest for a sentence that best effectuates the criminal justice system's goals of deterrence (general and specific), incapacitation, retribution and rehabilitation.'"
When reviewing a trial judge's decision refusing a proffered jury instruction, "'the appropriate standard of review requires that we view the evidence with respect to the refused instruction in the light most favorable to [the proponent of the instruction].'" Hartigan v. Commonwealth, 31 Va. App. 243, 257, 522 S.E.2d 406, 412 (1999) (quotingBoone v. Commonwealth, 14 Va. App. 130, 131, 415 S.E.2d 250, 251 (1992)). Moreover, the proffered instruction "must be supported by more than a mere scintilla of evidence."
When reviewing a trial judge's decision refusing a proffered jury instruction, "'[t]he appropriate standard of review requires that we view the evidence with respect to the refused instruction in the light most favorable to [the proponent of the instruction].'" Hartigan v. Commonwealth, 31 Va. App. 243, 257, 522 S.E.2d 406, 412 (1999) (citation omitted). "If any credible evidence in the record supports a proffered instruction . . ., failure to give the instruction is reversible error.
For a general discussion of the split among the federal courts, the underlying rationale for their holdings, and a historical analysis of the Fifth Amendment, see Maria Noelle Berger, Note, Defining the Scope of the Privilege Against Self-Incrimination: Should Prearrest Silence be Admissible as Substantive Evidence of Guilt? 1999 U. Ill. L Rev. 1015 (1999). State courts are also split on the issue, with some courts holding that prearrest, pre- Miranda silence is not admissible as substantive evidence of guilt, State v. Moore, 965 P.2d 174, 180 (Idaho 1998); State v. Dunkel, 466 N.W.2d 425, 428-29 (Minn.Ct.App. 1991); State v. Rowland, 452 N.W.2d 758 (Neb. 1990); People v. DeGeorge, 541 N.E.2d 11, 13 (N.Y. 1989); Hartigan v. Commonwealth, 522 S.E.2d 406, 410 (Va.Ct.App. 1999), reh'g granted; State v. Easter, 922 P.2d 1285 [ 992 P.2d 1285], 1291-92 (Wash. 1996); Tortolito v. State, 901 P.2d 387, 390 (Wyo. 1995), and other courts holding that prearrest, pre- Miranda silence does not implicate the Fifth Amendment, State v. Leecan, 504 A.2d 480, 484 (Conn. 1986); Key-El v. State, 709 A.2d 1305, 1310-11 (Md.), cert. denied 119 S.Ct. 267 (1998); State v. Masslon, 746 S.W.2d 618, 626 (Mo.Ct.App. 1988); State v. Dreher, 695 A.2d 672, 705 (N.J.Super.Ct. App. Div. 1997) cert. denied 702 A.2d 349 (N.J. 1997) and cert. denied, 542 U.S. 943 (1998); State v. Helgeson, 303 N.W.2d 342, 348-49 (N.D. 1981).
King v. Commonwealth, 64 Va.App. 580, 586 (2015) (en banc) (quoting Gaines v. Commonwealth, 39 Va.App. 562, 568 (2003) (en banc)). "When reviewing a trial judge's decision refusing a proffered jury instruction, 'the appropriate standard of review requires that we view the evidence with respect to the refused instruction in the light most favorable to [the proponent of the instruction].'" Stevens v. Commonwealth, 46 Va.App. 234, 247 (2005) (en banc) (alteration in original) (quoting Hartigan v. Commonwealth, 31 Va.App. 243, 257 (1999))
On that issue alone, we must consider the evidence in the light most favorable to Huguely. See, e.g., Hartigan v. Commonwealth, 31 Va.App. 243, 257, 522 S.E.2d 406, 412 (1999). A. The Events of May 2–3, 2010
In making this determination, we "'view the evidence with respect to the refused instruction in the light most favorable to [appellant].'" Hartigan v. Commonwealth, 31 Va. App. 243, 257, 522 S.E.2d 406, 412 (1999) (quoting Boone v. Commonwealth, 14 Va. App. 130, 131, 415 S.E.2d 250, 251 (1992)). Where "credible evidence in the record supports a proffered instruction . . . , failure to give the instruction is reversible error.