172
Ginsburg, J., dissenting
charged with killing Richard McClelland during the commission of a robbery, a capital offense. Va. Code Ann. § 18.2- 31(4) (Supp. 1995). Under Virginia law, the trial would proceed in two stages: During the guilt phase, the jury would determine whether Gray was guilty of capital murder; and during the penalty phase, the jury would decide whether Gray should be sentenced to death or life imprisonment. See Va. Code Ann. § 19.2-264.4(A) (1995).
At an in-chambers conference before the guilt phase began, Gray's lawyers requested a court order directing the prosecutor to disclose the evidence he would introduce during the penalty phase if Gray were convicted.1 Defense counsel wanted to know, in particular, whether the prosecutor planned to introduce evidence relating to the murders of Lisa Sorrell and her 3-year-old daughter, Shanta. Defense counsel informed the trial court of the basis for the request:
". . . Your Honor, this is my concern. We will probably at the very best stop in the middle of the day or late in the afternoon and start the penalty trial the next day. . . . [W]e have good reason to believe that [the prosecutor] is going to call people to introduce a statement that our client supposedly made to another inmate that he murdered [the Sorrells] which were very violent and well-known crimes throughout this entire area.
"If that comes in we are going to want to know it in advance so we can be prepared on our argument. . . . It's absolute dynamite." 3 Joint Appendix in No. 94-4009 (CA4), pp. 1328-1329 (hereinafter J. A.).
1 This request was made pursuant to Peterson v. Commonwealth, 225 Va. 289, 302 S. E. 2d 520 (1983), which instructed that, under Virginia law, the "preferred practice" in capital trials "is to make known to [the defendant] before trial the evidence that is to be adduced at the penalty stage if he is found guilty." Id., at 298, 302 S. E. 2d, at 526.
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