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WALKER v. COMMONWEALTH OF VIRGINIA


WALKER v. COMMONWEALTH
OF VIRGINIA


JUNE 17, 1997
Record No. 2948-95-2

ROBERT MACK WALKER

v.

COMMONWEALTH OF VIRGINIA

OPINION BY JUDGE NELSON T. OVERTON
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

James B. Wilkinson, Judge
Present: Judges Benton, Annunziata and Overton
Argued at Richmond, Virginia

Patricia P. Nagel, Assistant Public Defender (David J.
Johnson, Public Defender, on brief), for appellant.

Eugene Murphy, Assistant Attorney General (James S. Gilmore, III,
Attorney General, on brief), for appellee.


Robert Mack Walker was convicted by a jury of forgery,
uttering, grand larceny, and two counts of robbery. He appeals,
claiming that (1) the evidence is insufficient to support the
convictions for forgery, uttering, grand larceny, and robbery;
and (2) he should have been granted a proffered instruction
informing the jury that parole has been abolished in Virginia.

I. Facts

On August 7, 1995, just before midnight, Mary Person and her
aunt were stopped at a Race Trac Gas Station off Midlothian
Turnpike in southside Richmond. When Person was getting back into
her car and about to shut the door, the door flew open. A man
later identified by Person as Robert Mack Walker threw his
shoulder into hers and pushed her over. Walker drew a knife and
put it in Person’s side and asked for all of her money. Person
threw her pocketbook and her aunt’s pocketbook at Walker. When
another motorist drove up, Walker fled with Person’s wallet.

The next day Walker presented two of the checks stolen from
Person’s purse to two tellers at separate First Virginia Bank
branches. For the first he received $300; the other was refused.
He was subsequently indicted for two counts of forgery, two
counts of uttering, one count of grand larceny, and two counts of
robbery.

At trial, Person testified that her checkbook had been in her
wallet. She identified checks numbered 525 and 526 as coming from
the stolen checkbook, and she stated that the signature on the
checks was not hers. Person later identified Walker from a
photospread.

Lisa Cooper, a teller at First Virginia Bank, testified that
she handled check 526 on August 8, 1995, the day after the
robbery, made out to Robert Walker. She identified the teller
stamp and her handwriting on the back. She testified that the
identification card she examined bore the photograph of the same
man who cashed the check. The information that she copied from
the identification card matched the personal information from
Walker’s identification card. Six photos from the bank’s security
camera corroborated Walker’s presence at the bank at the time.

James Carter, a teller at another First Virginia Branch, also
testified that Walker gave him a check on August 8, 1995. He
copied Walker’s personal information from Walker’s identification
onto the back of the check. He also checked whether the person
presenting the check was the same person as the identification
card represented. When Carter was handed the check to identify at
trial, both he and the Commonwealth’s attorney called it check
526, the same number as the check that Cooper had identified.
Both checks 525 and 526 were admitted into evidence.

Walker testified on his own behalf. He stated that he had been
at the gas station at approximately the time of the robbery. He
also admitted receiving one of the checks from an acquaintance on
August 8, 1995. Walker testified that he had done some painting
for a woman named Elaine, and he thought the check was in return
for that work, the E. in Mary E. Person standing for Elaine. He
took the check to the first bank and cashed it. He denied
receiving the second check and denied ever going to the second
branch.

At the close of the Commonwealth’s evidence, defendant moved
to strike because of the discrepancy in the check numbers.
Defendant argued that check 526 was identified by both tellers as
the check they handled. The court agreed that the Commonwealth’s
attorney handed one of the witnesses the wrong check, but
overruled the motion to strike. The defendant renewed his motion
at the close of all evidence and was again overruled. The jury
found the defendant guilty on all counts.

Before the jury deliberated on sentencing, the defendant
offered a jury instruction stating that the Commonwealth of
Virginia has abolished parole for all felonies that were
committed after January 1, 1995. The judge ruled that, because
this was not a capital murder case, he was refusing the
instruction. The jury fixed Walker’s sentence at ten years for
each robbery count, two years for each forgery count, six months
on each uttering count, and one year for the grand larceny.

At the sentencing, Walker rearticulated the argument for the
previous motion to strike and moved to set aside the verdict. He
argued that both tellers identified the same check and that
therefore all the convictions should be set aside. The judge
agreed that evidence was lacking on one check, although he was
not sure which. He refused to set aside the convictions on both
checks, stating that "one of them was obvious" and that
the Commonwealth merely "made a mistake on the check and
gave the witness the wrong check." He did set aside the
forgery and uttering convictions on check number 526.

II. Sufficiency of the Evidence

A.

We hold that the evidence is sufficient to support the
convictions for forgery, uttering, and grand larceny.
"Larceny is defined as the wrongful or fraudulent taking of
personal goods of some intrinsic value, belonging to another,
without his assent, and with the intention to deprive the owner
thereof permanently." Jones v. Commonwealth, 3 Va.
App. 295, 300, 349 S.E.2d 414, 417 (1986). If the goods are
valued at $200 or more, the offense is grand larceny. See
Code  18.2-95.
Walker admitted receiving $300 from the bank in return for one of
the forged checks. The evidence is sufficient for a jury to
conclude that Walker fraudulently induced the bank to give him
this money and that he did not intend to return it. All of the
elements of grand larceny having been established, we affirm this
conviction.

All of the elements of forgery are also established.
"Forgery is the false making or materially altering with
intent to defraud, of any writing which, if genuine, might
apparently be of legal efficacy, or the foundation of legal
liability." Moore v. Commonwealth, 207 Va. 838, 841,
153 S.E.2d 231, 233 (1967); Bullock v. Commonwealth, 205
Va. 558, 561, 138 S.E.2d 261, 263 (1964). Person testified that
the signature on the checks was not her own. By presenting the
checks to the bank tellers, Walker demonstrated a clear intent to
defraud. The checks were therefore forged. The evidence does not
prove conclusively that Walker himself signed Person’s name on
the checks, but such proof is not required. "Possession of a
forged check by an accused, which he claims as a payee, is prima
facie evidence that he either forged the instrument or procured
it to be forged
." Fitzgerald v. Commonwealth, 227
Va. 171, 174, 313 S.E.2d 394, 395 (1984). Walker admitted the
possession of one of the two forged checks in evidence, whether
number 525 or number 526. The jury was therefore entitled to
believe beyond a reasonable doubt that Walker either forged the
check or procured it to be forged. The record supports a
conviction for forgery.

Uttering is an offense separate from forgery. See Bateman
v. Commonwealth
, 205 Va. 595, 599, 139 S.E.2d 102, 105
(1964); Johnson v. Commonwealth, 102 Va. 927, 929, 46 S.E.
789, 790 (1904). "The word ‘utter’ is defined in Black’s Law
Dictionary, 4th ed., page 1716, as meaning ‘To put or send [as a
forged check] into circulation, to utter and publish.’ It is an
assertion by word or action that a writing known to be forged is
good and valid." Bateman, 205 Va. at 599-600, 139
S.E.2d at 106 (alteration in original). Walker’s possession of
the forged check allows the inference that Walker knew it to be
forged. Walker clearly put this forged check into circulation, as
evidenced by, inter alia, his presence at the bank
captured on a bank security camera and his own admission. The
fact that the two check numbers were confused at trial does not
alter this fact. The conviction for uttering is affirmed.

B.

Walker attacks his robbery convictions on the ground that
Person’s identification was incredible. Person’s testimony is
clearly not incredible. She chose him from a lineup, and her
identification was later verified by the fact that Walker
admitted his presence at the gas station and was found in
possession of her checks the next morning. The credibility of the
witness and the weight accorded her testimony "are matters
solely for the fact finder, who has the opportunity to see and
hear that evidence as it is presented." Sandoval v.
Commonwealth
, 20 Va. App. 133, 138, 455 S.E.2d 730, 732
(1995); see Schneider v. Commonwealth, 230 Va. 379,
382, 337 S.E.2d 735, 736-37 (1985).

Furthermore, sufficient evidence was present to prove that
Walker was the robber, even without the eyewitness
identification. The jury rejected the defendant’s explanation for
his possession of the check, and in doing so inferred his
consciousness of guilt from that lie. See Welch v.
Commonwealth
, 15 Va. App. 518, 525, 425 S.E.2d 101, 106
(1992). "A defendant’s false statements are probative to
show he is trying to conceal his guilt, and thus is evidence of
his guilt." Rollston v. Commonwealth, 11 Va. App.
535, 548, 399 S.E.2d 823, 831 (1991) (citing Carter v.
Commonwealth
, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982)).
Accordingly, the robbery convictions are affirmed.

III. Jury Instruction

Walker next argues that the trial judge erred by refusing an
instruction informing the jury that Walker was ineligible for
parole under Virginia law. The proffered instruction read:

The Commonwealth of Virginia has abolished parole for all
felonies that were committed after January 1, 1995.[1]

The trial judge ruled that because this was not a capital
case, he would not instruct the jury about parole considerations,
adding, "It is none of their business."

A.

Virginia has a long and honored system of jury sentencing.
Juries have been empowered to sentence their peers in the
Commonwealth from as early as 1776. See 9 Laws of Va. 170
(Hening 1821); see also Note, Jury Sentencing in
Virginia
, 53 Va. L. Rev. 968, 971 (1967). This phenomenon did
not arise by accident; the General Assembly made a conscious
decision to depart from the common law, under which the court
sentenced the defendant. See Mackaboy v. Commonwealth,
4 Va. (2 Va. Cas.) 268, 271 (1821) (noting that the statute in
question was copied from an older law, "with this difference
only, that by our Law the fine as assessed by the jury, and under
the English Laws, by the Justices"). Our tradition continues
today. Only seven other states allow the jury to sentence
offenders in noncapital cases. See Ark. Code Ann.  5-4-103,
16-90-107 (WESTLAW through 1995 Sess.); Ky. Rev. Stat. Ann.  532.055(2) (West,
WESTLAW through 1996 Reg. Sess.); Miss. Code Ann.  97-3-67,
97-3-71 (WESTLAW through 1996 Reg. Sess.) (limited powers); Mo.
Ann. Stat.  557.036
(Vernon, WESTLAW through 1996 2d Reg. Sess.) (limited powers);
Okla. Stat. Ann. tit. 22,  926-928
(West, WESTLAW through 1996 2d Reg. Sess.); Tenn. Code Ann.  40-20-104,
40-20-107 (WESTLAW through 1996 2d Reg. Sess.); Tex. Code Crim.
Proc. Ann. art 37.07 (West, WESTLAW through 1995 Reg. Sess.).

When juries set sentences, they may consider certain
information. The Supreme Court of Virginia definitively set forth
the rule over sixty years ago:

These jurors should have been told that it was their duty,
if they found the accused guilty, to impose such sentence as
seemed to them to be just. What might afterwards happen was
no concern of theirs.

Coward v. Commonwealth, 164 Va. 639, 646, 178 S.E. 797,
800 (1935). Over time the Court has reiterated Virginia’s
commitment to this principle, even while recognizing that other
jurisdictions may not agree. See Hinton v. Commonwealth,
219 Va. 492, 495, 247 S.E.2d 704, 706 (1978) (noting the
existence of contrary cases). As the Supreme Court has stated,
the correct response when the jury asks about parole is:

The only response I can give you on that . . . is that
it’s the function of the jury, duty of the jury, to impose
such sentence as they consider just under the evidence and
the instructions of the Court.

And you should not concern yourself with what may
thereafter happen.

Peterson v. Commonwealth, 225 Va. 289, 296-97, 302
S.E.2d 520, 525 (1983); see also Clagett v.
Commonwealth
, 252 Va. 79, 94, 472 S.E.2d 263, 272 (1996); Wansley
v. Commonwealth
, 205 Va. 412, 416, 137 S.E.2d 865, 868
(1964); Jones v. Commonwealth, 194 Va. 273, 274, 72 S.E.2d
693, 694 (1952); Virginia Model Jury Instruction I-25. Our long
line of precedents has led this Court to remark that "[i]t
is well-established in Virginia that a jury is not to concern
itself with post-sentencing events." Kitze v.
Commonwealth
, 15 Va. App. 254, 260, 422 S.E.2d 601, 605
(1992), rev’d on other grounds, 246 Va. 283, 435 S.E.2d
583 (1993) (agreeing that the jury has no right to be advised of
post-sentencing events); see also Mosby v. Commonwealth,
24 Va. App. 284, 482 S.E.2d 72 (1997).

The principal rationale underlying our system of sentencing is
founded in the basic concept of separation of the branches of
government. The assessment of punishment lies within the purview
of the judicial branch; the administration of such punishment
within that of the executive branch. The rule in Virginia aims to
preserve, as effectively as possible, the separation of these
functions. See Hinton, 219 Va. at 496, 247 S.E.2d
at 706; Coward, 164 Va. at 646, 178 S.E. at 799-800; Dingus
v. Commonwealth
, 153 Va. 846, 852, 149 S.E. 414, 415 (1929).
The jury’s duty is to sentence the defendant according to the
evidence in the trial and within the limits set by the General
Assembly for the crimes committed. Pardons, parole, credit for
good behavior, and the like are factors outside of the scope, and
certainly the control, of the jury. Consideration of these
possibilities should not hamper the jury’s ability to perform its
duty.

Other secondary reasons have been advanced to support
Virginia’s policy. In Fitzgerald v. Commonwealth, 249 Va.
299, 455 S.E.2d 506 (1995), cert. denied, 116 S. Ct. 1279
(1996), the Supreme Court of Virginia affirmed the refusal of a
jury instruction which stated:

The court instructs the jury that under Virginia law any
person convicted of three separate felony offenses of murder,
rape or robbery by the presenting of firearms or other deadly
weapon or any combination of the offenses of murder, rape or
robbery when such offenses were not part of a common act,
transaction or scheme shall not be eligible for parole.

Id. at 305, 455 S.E.2d at 510. The Court found that,
were the jury to consider this instruction, it would be
determining law rather than fact, thus invading the realm of the
judge. "The question whether an accused is parole eligible
in Virginia is a question of law that may not be considered by a
jury." Id. at 306, 455 S.E.2d at 510.

On a more practical level, consideration of post-sentencing
events would lead the jury to speculate as to the probable time
actually served on a sentence. To inform the jury that credit for
good behavior exists may invite the jury to attempt to compensate
for the credit, resulting in a sentence longer than the jury
intended to impose. See Coward, 164 Va. at 642, 178
S.E. at 798. Similarly, if the jury is informed of credit for
good behavior, to be fair it should also be informed of the
workings of the parole system, the possibility of pardons,
work-release programs, commitments to the Department of Mental
Health, and every other alternative method which may affect the
amount of time the defendant may actually be confined. This sheer
volume of information would pose a tremendous obstacle to
efficient and just jury sentencing.

B.

In the instant case, Walker asserts that Simmons v. South
Carolina
, 512 U.S. 154, 114 S. Ct. 2187 (1994), requires the
judge to grant an instruction informing the jury that the
defendant is not eligible for parole. The constitutional
requirements of Simmons do not apply to noncapital felony
cases. See Mosby, 24 Va. App. at 290, 482 S.E.2d at
74. Instead, the general rule governs. A state may make its own
determination about what a jury will or will not be told about
sentencing. See California v. Ramos, 463 U.S. 992,
1014 (1983). "[T]he wisdom of the decision to permit juror
consideration of [post-sentencing events] is best left to the
States." Id.; see Simmons, 512 U.S. at
183, 114 S. Ct. at 2204 (Scalia, J., dissenting).

Code  19.2-295.1
provides, in pertinent part:

In cases of trial by jury, upon a finding that the
defendant is guilty of a felony, a separate proceeding
limited to the ascertainment of punishment shall be held as
soon as practicable before the same jury. . . .
After the Commonwealth has introduced such evidence of prior
convictions, or if no such evidence is introduced, the
defendant may introduce relevant, admissible evidence related
to punishment.

The question before us today is whether parole eligibility is
"relevant to punishment." In the past, the Supreme
Court of Virginia has made it abundantly clear that it is not.
"Information regarding parole eligibility is not relevant
evidence to be considered by the jury." Eaton v.
Commonwealth
, 240 Va. 236, 248, 397 S.E.2d 385, 392 (1990)
(citing Spencer v. Commonwealth, 240 Va. 78, 85, 393
S.E.2d 609, 613 (1990)); see Watkins v. Commonwealth,
238 Va. 341, 351, 385 S.E.2d 50, 56 (1989); Williams v.
Commonwealth
, 234 Va. 168, 178-80, 360 S.E.2d 361, 367-68
(1987); Poyner v. Commonwealth, 229 Va. 401, 418-19, 329
S.E.2d 815, 828 (1985).

Walker argues that because the General Assembly has now
abolished parole for all persons convicted of felonies committed
after January 1, 1995, that fact has become relevant to
punishment. We disagree.

We doubt not that the jury’s beliefs about parole may
influence, in some cases, a jury’s decision on the length of the
sentence, although Walker does not argue this theory on brief and
we can find no empirical evidence to support it.[2] Merely because a fact
may influence a jury’s decision, however, does not render it
relevant within the meaning of the statute.

Our Supreme Court has found that the jury may consider
"evidence in mitigation of the offense relevant to the
defendant’s past record and the nature of his conduct in
committing the crime." Coppola v. Commonwealth, 220
Va. 243, 254, 257 S.E.2d 797, 805 (1979); see Sheppard
v. Commonwealth
, 250 Va. 379, 391, 464 S.E.2d 131, 138
(1995). Additionally, victim impact statements are also relevant
to punishment, at least in capital sentencings. See Weeks
v. Commonwealth
, 248 Va. 460, 476, 450 S.E.2d 379, 389
(1994). The specific harm caused by the defendant is probative of
"’the defendant’s moral culpability and
blameworthiness.’" Weeks, 248 Va. at 476, 450 S.E.2d
at 390 (quoting Payne v. Tennessee, 501 U.S. 808, 835
(1991)). These factors are relevant to punishment because they
concern the defendant himself, the nature of the offense, and the
effects of his offense. See Mosby, 24 Va. App. at
292, 482 S.E.2d at 75.

In contrast, the Virginia Supreme Court has also ruled on
several types of information not relevant to punishment.
"Evidence as to the result of another defendant’s trial for
the same crime is irrelevant to the determination by the jury of
the appropriate punishment for the defendant whose sentence is
being weighed." Coppola, 220 Va. at 254, 257 S.E.2d
at 805; Sheppard, 250 Va. at 390-91; 464 S.E.2d at 138.
Under the mandated statutory review of capital cases, the Supreme
Court must compare the sentence in a particular case to similar
cases, but a jury has no such responsibility. See id.
The Supreme Court has also held that a jury should not consider
"residual doubt" about guilt while sentencing, see
Stockton v. Commonwealth, 241 Va. 192, 211, 402 S.E.2d
196, 207 (1991), nor the possibility that later-discovered
evidence may demonstrate the innocence of the defendant. See
Frye v. Commonwealth, 231 Va. 370, 393, 345 S.E.2d 267,
283 (1986). All of these factors might tend to influence a jury’s
decision as to the amount of confinement, but they are not
"relevant to punishment."

Relevant factors concern the defendant’s character C his past record and moral
culpability at time of the offense C and the offense itself C the nature of the
defendant’s behavior and the impact on the victim. Those not
relevant to sentencing concern independent events occurring after
the offense C a
codefendant’s trial, residual doubt by the jury, or the
possibility of new evidence. These factors involve matters over
which the defendant has no control and for which he has no blame.
Whether or not the defendant is eligible for parole falls
squarely within the second category. This rationale is further
supported by the fact that all convicted felons are now
parole-ineligible: that status now has absolutely no dependence
on a particular defendant’s character or culpability.

We are not persuaded by the argument that the jury will impose
a more severe sentence under the false belief that parole exists.
A jury is charged to fix a sentence within the statutory range,
commensurate with the nature of the offense. We shall not presume
that our juries routinely disobey this charge by speculating as
to parole possibilities.[3]

We note that an instruction informing the jury that parole has
been abolished may mislead the jury into thinking that the
defendant will serve all of the time it imposes; under the Code a
convicted felon is still entitled to accumulate credit for good
behavior. See Code  53.1-202.3.[4] Additionally, because parole
has not been absolutely abolished, see note 1, supra,
the jury would have to make a legal determination that this
defendant is in fact ineligible for parole: a role reserved for
the judge. See Fitzgerald v. Commonwealth, 249 Va.
299, 306, 455 S.E.2d 506, 510 (1995), cert. denied, 116 S.
Ct. 1279 (1996). Finally, the trial judge, who is aware of the
parole laws, has the power to modify any jury sentence, within
statutory limits. A defendant given an extraordinarily harsh
sentence, therefore, has recourse. "[U]nder the Virginia
practice, the punishment as fixed by the jury is not final or
absolute, since its finding on the proper punishment is subject
to suspension by the trial judge, in whole or in part, on the
basis of any mitigating facts that the convicted defendant can
marshal." Vines v. Muncy, 553 F.2d 342, 349 (4th Cir.
1977). While judges in the Commonwealth typically respect the
jury’s recommendation, modification of a jury’s sentence is not
uncommon.[5]

Juries in Virginia are neither required nor entitled to
consider parole eligibility, either by the federal Constitution
or the law extant in the Commonwealth. This rule is based on the
separation between the branches of government as well as
compelling practical considerations. The recent amendment to the
parole laws does not require us to depart from the rule. We find
that Walker was not entitled to his requested instruction.

For the reasons stated, we affirm the convictions.

Affirmed.

Annunziata, J., concurring.

The disposition of this appeal is governed by the recent
decision of a panel of this Court in Mosby v. Commonwealth,
24 Va. App. 284, 482 S.E.2d 72 (1997). I write to address further
the issue whether the abolition of parole in Virginia for all
felony offenses, under Code 
53.1-165.1, is "relevant . . . evidence related to
punishment" in a bifurcated sentencing proceeding under Code
 19.2-295.1.

Under the former unitary trial procedure, before the abolition
of parole for all felony offenses, the principle was well
established that "the trial court should not inform the jury
that its sentence, once imposed and confirmed, may be set aside
or reduced by some other arm of the State." Hinton v.
Commonwealth
, 219 Va. 492, 495, 247 S.E.2d 704, 706 (1978).
Both appellant and the dissent argue that the General Assembly ipso
facto
rendered this principle a nullity by making
"fundamental changes" in felony sentencing procedures, viz.,
by bifurcating the guilt and sentencing aspects of trial, and by
abolishing parole for all felony offenses. I find their position
unsupported either in controlling case precedent or by the acts
of the General Assembly.

The bifurcated felony trial was not unknown in the
Commonwealth prior to the enactment of Code  19.2-295.1. Such was, and
continues to be, the trial procedure in the prosecution of
capital murder offenses. Gilliam v. Commonwealth, 21 Va.
App. 519, 523, 465 S.E.2d 592, 594 (1996). In the context of
bifurcated capital murder trials conducted prior to the enactment
of Code  19.2-295.1,
the Supreme Court consistently applied the well established
principle that information concerning parole eligibility is not
relevant evidence to be considered by the jury. See Eaton
v. Commonwealth
, 240 Va. 236, 248, 397 S.E.2d 385, 392
(1990), cert. denied, 502 U.S. 824 (1991)
("Information concerning parole eligibility is not relevant
evidence to be considered by the jury."); King v.
Commonwealth
, 243 Va. 353, 368, 416 S.E.2d 669, 677, cert.
denied
, 506 U.S. 957 (1992).

When enacting Code 
19.2-295.1, the General Assembly did not identify the specific
evidence related to punishment that it considered
"relevant" for the jury’s consideration during the
sentencing phase of a bifurcated felony trial. Pursuant to
established principles of statutory construction, however, this
Court has repeatedly interpreted the legislature’s decision to
expand the bifurcated trial procedure to all felony jury trials
in light of the principles developed in the context of capital
murder trials. See Gilliam, 21 Va. App. at 522-23,
465 S.E.2d at 594; Bunn v. Commonwealth, 21 Va. App. 593,
598, 466 S.E.2d 744, 746 (1996). Applying the same principles
here, the conclusion follows that evidence regarding parole is
not relevant evidence related to punishment under Code  19.2-295.1.

Both appellant and the dissent argue that such analysis is no
longer controlling in light of the United States Supreme Court’s
decision in Simmons v. South Carolina, 512 U.S. 154, 114
S. Ct. 2187 (1994), which "substantially abrogated" the
principle that information concerning parole is not relevant
evidence related to punishment in capital cases. Simmons,
however, has no bearing on the question whether the General
Assembly’s extension of the bifurcated sentencing proceeding from
capital trials to all felony trials requires that the jury be
provided information concerning parole. The rule of Simmons
is "that where the State puts the defendants future dangerousness in
issue, and the only available alternative sentence to death is
life imprisonment without parole, due process entitles the
defendant to inform the capital sentencing jury . . . that he is
parole ineligible." Mueller v. Murray, 252 Va. 356,
362, 478 S.E.2d 542, 546-47 (1996). The due process rationale of Simmons
applies only when each of the following predicates is met, viz.,
(1) future dangerousness is at issue; (2) the jury is faced with
a choice between death and life imprisonment; and (3) the
defendant is, in fact, parole ineligible. See Roach v.
Commonwealth
, 251 Va. 324, 346, 468 S.E.2d 98, 111, cert.
denied
, __ U.S. __, 117 S. Ct. 365 (1996); Mosby, 24
Va. App. at 290, 482 S.E.2d at 74. Where the aforementioned
predicates are met, parole ineligibility is relevant for the
jury’s consideration: the issue is whether a defendant who will
never be released from incarceration actually poses a future
danger to society.[6] It simply does not follow,
however, that parole ineligibility is relevant for the jury’s
consideration in every case simply because a bifurcated
sentencing proceeding is undertaken.[7]

Moreover, the enactment of Code  53.1-165.1 is not the
first act of the General Assembly to abolish parole in Virginia.
In July 1982, the General Assembly abolished parole for
three-time felony offenders. See Code  53.1-151(B)(1). In that
context, the arguments now raised for instructing the jury on the
abolition of parole were rejected. See Peterson v.
Commonwealth
, 225 Va. 289, 296-97, 302 S.E.2d 520, 525, cert.
denied
, 464 U.S. 865 (1983); Williams v. Commonwealth,
234 Va. 168, 178-80, 360 S.E.2d 361, 368 (1987), cert. denied,
484 U.S. 1020 (1988).[8]
Peterson compels the conclusion that there is no basis for
finding that, by abolishing parole for all convicted felons, the
General Assembly intended to override the principle enunciated
time and again by the Virginia Supreme Court that information
concerning parole eligibility or ineligibility is not relevant
for the jury’s consideration.

The United States Supreme Court’s decision in Simmons
does not affect such an analysis. Simmons does not support
the proposition that the fact of parole ineligibility alone
requires that the jury be so informed. See Roach,
251 Va. at 346, 468 S.E.2d at 111; Mosby, 24 Va. App. at
290, 482 S.E.2d at 74. Indeed, while acknowledging the Simmons
holding in cases in which the defendant was parole eligible (or
had simply failed to establish parole ineligibility) and thus was
not entitled to the instruction, the Virginia Supreme Court has
persisted in noting its "consistent[] reject[ion of] efforts
to permit jurors to consider a defendant’s parole eligibility or
ineligibility." See Clagett v. Commonwealth,
252 Va. 79, 94, 472 S.E.2d 263, 272 (1996), cert. denied,
__ U.S. __, 117 S. Ct. 972 (1997); Joseph v. Commonwealth,
249 Va. 78, 83-84, 452 S.E.2d 862, 866, cert. denied, __
U.S. __, 116 S. Ct. 204 (1995) (citing the pre-Simmons
cases of King v. Commonwealth, 243 Va. 353, 368, 416
S.E.2d 669, 677, cert. denied, 506 U.S. 957 (1992), and Yeatts
v. Commonwealth
, 242 Va. 121, 127, 410 S.E.2d 254, 258
(1991), cert. denied, 503 U.S. 371 (1992), for the same
principle).

In sum, I find no support in the controlling jurisprudence of
this Commonwealth for the proposition that either the fact of
bifurcation or the fact of parole abolition renders a defendant’s
status as parole ineligible relevant evidence for the jury’s
consideration at sentencing. It does not follow that the General
Assembly ipso facto rendered this jurisprudence a
nullity by expanding the bifurcated procedure to all felony
trials and by abolishing parole for all convicted felons.

To the contrary, nothing in the express language of either of
the applicable Code sections compels the conclusion that the
abolition of parole is relevant evidence for the jury’s
consideration. Furthermore, as discussed above, when enacting
Code  19.2-295.1
and 53.1-165.1 the General Assembly was acting in an area in
which the Virginia Supreme Court had already spoken. As such, the
General Assembly "is presumed to [have] know[n] the law as
the Court has stated it and to [have] acquiesce[d] therein.’" Gilliam, 21 Va. App. at 524, 465 S.E.2d at
595 (quoting McFadden v. Commonwealth, 3 Va. App. 226,
230, 348 S.E.2d 847, 849 (1986)).

Finally, and perhaps most telling, in 1996 the General
Assembly failed to approve a bill which would have amended Code

 19.2-295.1 to
read as follows:

Upon request of the Commonwealth or the defendant, the
court shall instruct the jury that parole has been abolished
for felony offenses occurring on or after January 1, 1995,
and on the law regarding the defendant’s eligibility for
release.

Senate Bill No. 477 (Offered January 22, 1996).[9]

Benton, J., dissenting.

By statute, the General Assembly has mandated that "[a]ny
person sentenced to a term of incarceration for a felony offense
committed on or after January 1, 1995, shall not be eligible for
parole upon that offense." Code  53.1-165.1. I would hold
that the trial judge erred in denying Walker’s proposed
instruction, which would have informed the jury that parole has
been abolished in Virginia. [10] I therefore dissent.

I.

The majority opinion essentially relies upon this Court’s
recent decision in Mosby v. Commonwealth, 24 Va. App. 284,
482 S.E.2d 72 (1997), and cases decided upon proceedings that
arose under recently abandoned sentencing procedures and before
parole was abolished.[11] Although this Court in Mosby
held "that in noncapital felony cases a trial judge is not
required to instruct the jury that the defendant, if convicted,
will be ineligible for parole," id. at 286, 482
S.E.2d at 72, I believe that decision fails to take into account
the effect of the significant statutory changes in Virginia law.

In addition to abolishing parole, the General Assembly revised
jury sentencing procedures to provide for bifurcated jury trials
in non-capital felony prosecutions. See Code  19.2-295.1. Code  19.2-295.1 fundamentally
changed the nature of sentencing proceedings in non-capital jury
trials. As a result, the concerns that previously justified
depriving the jury of information concerning parole no longer
exist.[12]

Under the previous sentencing scheme, juries in non-capital
cases would both determine guilt and impose a sentence after a
single, unitary trial. The only criteria juries could consider in
sentencing were the range of punishment for the offense and the
facts germane to the commission of the offense. "The theory
of our [previous] unitary jury trial [procedure was] that the
jury [was] to sentence the offense rather than the
offender." Smith v. Commonwealth, 223 Va. 721,
725-26, 292 S.E.2d 362, 365 (1982) (Russell, J., dissenting).
Thus, evidence of aggravating and mitigating factors was not
admissible before the jury at the trial of a non-capital criminal
offense. See Weeks v. Commonwealth, 248 Va. 460,
476, 450 S.E.2d 379, 389-90 (1994); Duncan v. Commonwealth,
2 Va. App. 342, 345-47, 343 S.E.2d 392, 394-95 (1986). By
contrast, under the new procedure, at the separate sentencing
hearing, "the Commonwealth shall present the defendant’s
prior criminal convictions," Code  19.2-295.1, and the
defendant may introduce relevant mitigating evidence. See Pierce
v. Commonwealth
, 21 Va. App. 581, 466 S.E.2d 130 (1996). The
new bifurcated procedure therefore permits an inquiry that is
significantly broader in scope.[13]

In addition, within the context of the former unitary trial
procedure, the Supreme Court enunciated the rule that in a
non-capital jury sentencing "the trial [judge] should not
inform the jury that its sentence, once imposed and confirmed,
may be set aside or reduced by some other arm of the State."
Hinton v. Commonwealth, 219 Va. 492, 495, 247 S.E.2d 704,
706 (1978). Significantly, the Supreme Court noted that
"[t]he aim of the rule . . . [was] to preserve, as
effectively as possible, the separation of . . . [the] functions
[of the judicial and executive branches] during the process when
the jury is fixing the penalty, in full recognition of the fact
that the average juror is aware that some type of further
consideration will usually be given to the sentence
imposed." Id. at 496, 247 S.E.2d at 706. In crafting
the new sentencing scheme, however, the General Assembly
eliminated parole — the mechanism used by the executive branch
to reduce jury sentences. Thus, the need to separate the
sentencing function of the judiciary from the role of the
executive branch in granting parole is no longer a consideration.
[14]

The Supreme Court also reasoned in Jones v. Commonwealth,
194 Va. 273, 72 S.E.2d 693 (1952), that a jury should not be
informed of parole eligibility because "[s]uch a practice
would permit punishments to be based on speculative elements,
rather than on the relevant facts of the case, and would lead
inevitably to unjust verdicts." Id. at 279, 72 S.E.2d
at 697. However, because the law today is unambiguous — parole
is completely unavailable to all convicted felons — the jury’s
consideration of that fact would not be speculative. On the
contrary, informing the jury of the now-certain fact that parole
has been abolished would eliminate the very speculation that
previously concerned the Supreme Court.

In view of the legislature’s abolition of the long standing
tradition of parole and the new bifurcated jury sentencing
procedure, we mislead jurors and prejudice defendants when we
fail to inform jurors that parole is no longer available.

II.

The overriding purpose of jury instructions is to inform the
jury of the applicable law. See Cooper v. Commonwealth,
2 Va. App. 497, 500, 345 S.E.2d 775, 777 (1986). To that end, the
trial judge must instruct the jury in a manner that will aid the
jury in reaching a proper verdict and that will avoid misleading
the jury. See id.; see also 75A Am. Jur. 2d Trial
 1077 (1991).
"[W]hen a principle of law is vital to a defendant in a
criminal case, a trial court has an affirmative duty properly to
instruct a jury about the matter." Jimenez v.
Commonwealth
, 241 Va. 244, 250, 402 S.E.2d 678, 681 (1991).
It is error not to instruct the jury when the jury may make
findings based upon a mistaken belief of the law. See Martin
v. Commonwealth
, 218 Va. 4, 7, 235 S.E.2d 304, 305 (1977)
(per curiam).

Walker’s proffered instruction was necessary because the
unavailability of parole was a relevant factor to consider in
determining the proper length of his sentence. The Commonwealth’s
attorney argued to the jury the concept of future dangerousness
when he asserted:

The defendant’s behavior in this case was more than wrong.
It is scary and it is dangerous. It is life threatening. This
defendant is dangerous and needs to be kept off the street
for a very long time. I am asking you all to consider the
facts in this case and sentence him accordingly.

That argument highlights the relevancy of the duration of the
sentence that the jury was asked to levy. The unavailability of
parole is unquestionably relevant to the jury’s determination of
a proper sentence because it reflects the Commonwealth’s policy
that the defendant will actually serve a sentence of
approximately the same length as the sentence levied by the jury.[15]

As a practical matter, it is well known that "[f]or much
of our country’s history, parole was a mainstay of state and
federal sentencing regimes, and every term (whether a term of
life or a term of years) in practice was understood to be shorter
than the stated term." Simmons v. South Carolina, 512
U.S. 154, 169, 114 S. Ct. 2187, 2197 (1994) (plurality opinion).
No great leap in logic is required to conclude that because of
that history, the jury reasonably could have concluded that
Walker’s sentence should be increased beyond the appropriate
duration to counteract the effect of his likely early parole
release.

Moreover, the jurors were most likely misinformed about the
current state of Virginia law on parole eligibility. The
abolition of parole in Virginia is a recent change in the law.
Indeed, the Virginia Criminal Sentencing Commission, which was
created by the General Assembly for the purpose, inter alia,
of "[m]onitor[ing] sentencing practices in felony cases . .
. and maintain[ing] a database containing the information
obtained," Code 
17-235(7), has reported as follows:

Many judges have argued that parole ineligibility
information should be provided so that jurors can make more
informed sentence decisions. It is felt by some that most
jurors are not aware of the impact of the new legislation and
may be setting long prison terms in the mistaken belief that
only a small portion will actually be served, as occurred
under the old parole system.

Va. Crim. Sentencing Comm’n Ann. Rep. 65 (1995)
[Hereinafter 1995 Rep.]. The Commission’s 1996 Annual Report
notes that "[i]t has been speculated that jurors may not be
fully aware of the implications of parole abolition and truth in
sentencing and may be inflating their sentences." Va.
Crim. Sentencing Comm’n Ann. Rep.
32 (1996). Similarly, a
study in Texas, a state that also traditionally has had jury
sentencing, found that among jurors "almost everyone
understood that only rarely would the offender serve the entire
sentence." Robert A. Weninger, Jury Sentencing in
Noncapital Cases: A Case Study of El Paso County, Texas
, 45
Wash. U. J. Urb. & Contemp. L. 3, 13 (1994). In light of the
prevalent misconception, the Virginia Criminal Sentencing
Commission recommended that the law be changed to allow for
"jury instructions on the abolition of parole and the 85%
minimum time served requirement for offenders sentenced under the
new truth in sentencing system." 1995 Rep. at 64.

Adding to jurors’ misconception about parole eligibility,
under the new sentencing procedures the jury is now given copies
of the defendant’s prior record of conviction. See Gilliam
v. Commonwealth
, 21 Va. App. 519, 465 S.E.2d 592 (1996).
Thus, in many instances a jury will have evidence that the
defendant was previously released on parole before completing an
earlier imposed sentence. See id. at 525-26, 465
S.E.2d at 595 (holding that information regarding the defendant’s
prior sentences may be included in the record of conviction
submitted to the jury). From this evidence, a jury will likely
infer that its sentence may be tempered by early release on
parole.

The courts should not permit jurors to sentence based upon the
erroneous belief that parole still exists. "The promise of a
community judgment about proper punishment is merely an illusion
if those acting on behalf of the community do not know what the
sentence they impose actually will mean . . . ." Governor’s
Comm’n on Parole Abolition & Sentencing Reform Final Rep.

25 (1994). Indeed, when we give "full recognition [to] the
fact that the average juror [believes] . . . that some type of
further consideration will usually be given to the sentence
imposed," Hinton, 219 Va. at 496, 247 S.E.2d at 706,
the imperative to give the jury an easy to understand and legally
accurate instruction that parole has been abolished is manifest.
The failure to inform the jury in effect ensures that the jury
will be misled. "[A] juror with misconceptions about the
operation of the parole laws could easily infect the other jurors
with these misconceptions and thereby cause the assessment of a
sentence [to be] based on erroneous beliefs as to when the
defendant will really ‘get out.’" Note, Jury Sentencing
in Virginia
, 53 Va. L. Rev. 968, 984 (1967).

Obviously, if the jury is uncertain about the defendant’s
parole eligibility, the jury’s recourse is to impose a lengthier
sentence for the purpose of ensuring the defendant actually
serves a sentence of the desired duration. To fail to inform the
jury that parole has been abolished is to risk "subvert[ing] the will of the legislature by [allowing a jury to impose] a
longer sentence than is warranted simply in order to ensure that
the defendant’s actual period of confinement corresponds to what
[the jury] feels is the defendant’s due."[16] Id. The
prejudice to the defendant is manifest.

I dissent.

 

FOOTNOTES:

[1] We note that this instruction
is not entirely accurate as a matter of law. Exceptions to this
general statement exist in the Code. See, e.g., Code  19.1-311 (granting a
discretionary exception for persons between the age of eighteen
and twenty-one convicted of a felony not punishable as a Class 1
felony); Code  53.1-40.01
(allowing petitions for parole from older prisoners convicted of
a felony other than a Class 1 felony).

[2] See generally Virginia
Criminal Sentencing Commission 1996 Annual Report 32 (1996)
(noting that "[i]t has been speculated that juries may not
be fully aware of the implications of parole abolition and truth
in sentencing and may be inflating their sentences"); Robert
A. Weninger, Jury Sentencing in Noncapital Cases: A Case Study
of El Paso County, Texas
, 45 J. Urb. & Contemp. L. 3, 13
(1994) (asserting without support that "almost everyone
understood that only rarely would the offender serve the entire
sentence").

[3] The jury in this case was
instructed to sentence Walker to life imprisonment or a period of
not less than five years on each of the two robbery charges. The
jury fixed the sentence at ten years for each charge, leading the
trial judge to comment, when asked to reduce the sentence,
"I really don’t see where the verdicts are out of line,
probably more accurate than the sentencing guidelines."

[4] The Code allows a prisoner
convicted of a felony committed after January 1, 1995, to earn a
maximum credit of four and one-half days for each thirty days
served. Therefore, a prisoner has the potential to serve only 85%
of his time, or eight and one-half years out of every ten
sentenced.

[5] In 1996, judges modified 20% of
the total number of jury sentences reported to the Virginia
Criminal Sentencing Commission. See Annual Report at 34.

[6] While future dangerousness was
arguably at issue in the present case, Simmons does not
apply here because the jury was not faced with a choice between
death and life imprisonment. See Mosby, 24 Va. App.
at 290, 482 S.E.2d at 74.

[7] Indeed, the rationale of Simmons
would not obtain even in a capital sentencing proceeding where a
sentence of death was predicated on "vileness" rather
than "future dangerousness," notwithstanding the
bifurcated nature of the proceeding and the fact that the
defendant was parole ineligible. See Cardwell v.
Commonwealth
, 248 Va. 501, 515, 450 S.E.2d 146, 155 (1994), cert.
denied
, __ U.S. __, 115 S. Ct. 1826 (1995) (suggesting Simmons
not applicable where punishment fixed upon "vileness"
predicate). The fact of parole ineligibility bears no relation to
the vileness of the crime.

[8] In Peterson, the Supreme
Court of Virginia considered two questions. First, the propriety
of an instruction similar to the one at issue in this case given
in response to a jury question regarding parole eligibility and,
second, whether the legislature’s amendment to Code  53.1-151(B)(1), which made
a person convicted of three separate offenses of armed robbery
ineligible for parole, required an instruction to that effect.
Turning aside the failure of Peterson to object when the trial
court declined to instruct the jury about his parole
ineligibility and gave instead the instruction approved in Clanton
v. Commonwealth
, 223 Va. 41, 54-55, 286 S.E.2d 172, 179-80
(1980), and Hinton v. Commonwealth, 219 Va. 492, 247
S.E.2d 704 (1978), that the jury "should not concern
[itself] with what may thereafter happen," the Supreme Court
addressed the second question regarding the effect of the
legislative amendment on the Court’s prior holding. It stated:
"We need not consider the effect of this statutory amendment
[which followed Clanton and Hinton] because we rely
upon and reaffirm the principle enunciated in [those two prior
cases] that it is improper to inform the jury as to the
possibility of parole." Peterson, 225 Va. at 297, 302
S.E.2d at 525.

[9] The merit of the
recommendations made by the Sentencing Commission to the General
Assembly to which the dissent alludes are not at issue. The issue
is how, if at all, the General Assembly has responded to those
recommendations in light of the established jurisprudence in the
Commonwealth. Furthermore, while I agree that important values
are at stake in this case, not the least of which is the value
the judicial system places on informed decision-making by both
judge and jury alike, I believe that, in light of the established
law of the Commonwealth, the issue is one properly left to the
General Assembly. In its 1996 Session, the General Assembly
plainly rejected a bill which would have required that juries be
instructed with respect to the abolition of parole. Although the
issue was again raised by the Virginia Criminal Sentencing
Commission’s 1996 Annual Report, the General Assembly took no
action on the issue in its 1997 Session.

[10]
"The essence of parole is release from prison, before the
completion of sentence, on the condition that the prisoner abide
by certain rules during the balance of the sentence." Morrissey
v. Brewer
, 408 U.S. 471, 477 (1972).

[11]
Citing several capital murder cases in which the jury was not
instructed on parole before the jury imposed the death penalty, see,
e.g.
, Joseph v. Commonwealth, 249 Va. 78, 83-84, 452
S.E.2d 862, 866, cert. denied, ___ U.S. ___, 116 S. Ct.
204 (1995), the concurring opinion posits that the Supreme Court
has "consistently applied the well-established principle
that information concerning parole eligibility is not
relevant." That analysis ignores the holding in Simmons
v. South Carolina
, 512 U.S. 154, 171, 114 S. Ct. 2187, 2198
(1994), that when future dangerousness is at issue a parole
ineligible defendant is entitled as a matter of due process to an
instruction on the unavailability of parole in a capital case.
Moreover, the Court ruled in Joseph that the defendant was
eligible for parole. See 249 Va. at 84, 452 S.E.2d at 866;
see also Clagett v. Commonwealth, 252 Va.
79, 94, 472 S.E.2d 263, 272 (1996), cert. denied,
___ U.S. ___, 116 S. Ct. 204 (1995) (finding that Clagett, who
sought a parole ineligibility instruction for the sentencing of a
non-capital charge, failed to prove he was parole ineligible).
The other death penalty cases cited in the concurring opinion, King
v. Commonwealth
, 243 Va. 353, 416 S.E.2d 669 (1992); Eaton
v. Commonwealth
, 240 Va. 236, 397 S.E.2d 385 (1990); and Williams
v. Commonwealth
, 234 Va. 168, 360 S.E.2d 361 (1987), were all
decided before Simmons. The holding in Simmons now
renders the former Virginia rule invalid as to all capital cases
where future dangerousness is an issue. Thus, the formerly
"well-established principle" has been substantially
abrogated by the United States Supreme Court.

[12]
The concurring opinion states that "the arguments now raised
for instructing the jury on the abolition of parole were
rejected" in Peterson v. Commonwealth, 225 Va. 289,
296-97, 302 S.E.2d 520, 525 (1983). However, the Supreme Court
stated that it "need not consider the effect of [the 1982] .
. . statutory amendment" abolishing parole for repeat
offenders. Id. at 297, 302 S.E.2d at 525. Moreover, the
Court held that Peterson failed to object and the judge correctly
declined to raise the issue sua sponte. See id.

[13]
The concurring opinion compares today’s bifurcated sentencing
scheme, in which parole is undoubtedly unavailable, to the
bifurcated capital murder proceedings that pre-dated the new law
abolishing parole. It is true that juries are given broad
discretion under both schemes. However, the important distinction
is that today juries may be exercising their discretion under the
misconception that parole is still available. Under the prior
capital murder sentence scheme, juries were correct in their
belief that parole was available and, thus, were not as likely to
abuse their discretion.

[14]
I disagree with the conclusion reached in the concurring opinion
that the General Assembly has somehow acquiesced in the
court-made rule announced in Hinton. When the General
Assembly abolished parole and revised the jury sentencing
procedure, the General Assembly ipso facto rendered
the Hinton rule a nullity. The rule was judicially created
"to preserve, as effectively as possible, the separation of
. . . [the] functions [of the judicial and executive branches] during the process when the jury is fixing the penalty, in full
recognition of the fact that the average juror is aware that some
type of further consideration will usually be given to the
sentence imposed." 219 Va. at 496, 247 S.E.2d at 706. Now
that the General Assembly has rendered moot the concern about
separation of powers, the judiciary has complete power to modify
the rule that the judiciary itself created. Changed circumstances
and the imperative to avoid misleading juries require judicial
action.

[15]
The role and effect of parole on a jury’s determination of
punishment is demonstrated by the numerous cases cited by the
majority in which a jury asked the trial judge for
information about parole. See Clagett v. Commonwealth,
252 Va. 79, 94, 472 S.E.2d 263, 272 (1996), cert. denied,
___ U.S. ___, 117 S. Ct. 972 (1997); Peterson v. Commonwealth,
225 Va. 289, 296-97, 302 S.E.2d 520, 525 (1983); Hinton v.
Commonwealth
, 219 Va. 492, 493, 247 S.E.2d 704, 705 (1978); Jones
v. Commonwealth
, 194 Va. 273, 275, 72 S.E.2d 693, 694 (1952);
Coward v. Commonwealth, 164 Va. 639, 642, 178 S.E. 797,
798 (1935); Mosby v. Commonwealth, 24 Va. App. 284, 482
S.E.2d 72 (1997).

[16]
The inescapable conclusion to be drawn from the majority opinion
is that a certain degree of jury ignorance can be tolerated. When
parole was available, the jury was not instructed on parole
issues because parole was not a judicial matter. Furthermore, the
harm of jury ignorance was outweighed by compelling concerns
about the separation of the judicial and executive functions and
the possibility of jury speculation. With the abolition of
parole, the reasons for depriving the jury of complete and
accurate information about the state of the law no longer exist.
With no compelling reason to withhold relevant information from
the jury, the majority opinion cites Mosby and merely
adopts the ruling of prior Supreme Court cases that were decided
in a different statutory context. The effect of so doing is to
unnecessarily countenance ignorance in the administration of
justice.

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