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WILKINS v. COMMONWEALTH




Record No. 961235

DONALD L. WILKINS, Appellant,

v.

COMMONWEALTH OF VIRGINIA, Appellee.

Court of Appeals No. 1242-95-4

Upon an appeal from a judgment rendered by the Court of

Appeals of Virginia on the 4th day of December, 1995.

Upon consideration of the record, the briefs, and argument of
counsel, the Court is of opinion that no error exists in the judgment of
the Court of Appeals of Virginia.

On March 31, 1995, a jury in the Circuit Court for the County
of Fauquier returned a verdict convicting Donald L. Wilkins of attempted
possession of phencyclidine, a controlled substance, in violation of Code ?
18.2-257. As appears from an order entered by the trial court,
“[w]hereupon the jurors received further evidence and were instructed by
the Court as to punishment and heard evidence and argument of counsel and
were sent back to their room to consider their verdict as to punishment.”
Authorized by the statute to impose a sentence upon conviction of “not less
than one nor more than ten years,” the jury returned its second verdict
fixing the penalty at five years in the penitentiary. Upon consideration
of the report of a probation officer, the trial court confirmed the two
verdicts and entered final judgment on May 30, 1995.

In the course of argument made at the penalty phase of the
trial, the prosecutor told the jurors that “you have an opportunity as the
conscience of this community to deal with this person” and that “in
considering what is the appropriate verdict, you can indeed send the
message to Mr. Wilkins…[and] to people similarly situated to Mr.
Wilkins that we will not tolerate the sale and purchase of drugs in this
county.” Wilkins objected to those statements and, in a petition for
appeal addressed to the Court of Appeals of Virginia, challenged the trial
court’s ruling denying his motion for a mistrial.

Holding that “the argument was proper,” the Court of Appeals
of Virginia denied the petition, and this Court awarded Wilkins an appeal
limited to consideration of that holding.

Wilkins notes on brief that “[n]othing should be done or
permitted to…obscure the minds of the jurors on the question of
whether or not [the accused] is guilty of the offense charged.” That rule
is fully supported by the precedents. This Court, upon finding a manifest
probability that a deterrence argument by a prosecutor had been a
contributing cause of the defendant’s conviction, has consistently
reversed the judgment and remanded the case to the trial court. See
e.g., Kitze v. Commonwealth, 246 Va. 283, 435 S.E.2d 583
(1993); Hutchins v. Commonwealth, 220 Va. 17, 255 S.E.2d 459 (1979).

As an element of its rationale in Hutchins, this Court
emphasized the need to avoid confusion between “the use of punishment and
conviction for deterrent purposes,” 220 Va. at 20-21, 255 S.E.2d at 461,
and, citing Hutchins in Payne v. Commonwealth, 233 Va. 460,
468, 357 S.E.2d 500, 505, cert. denied, 484 U.S. 933 (1987), the
Court explained that “while considerations of deterrence should not be the
basis for a finding of guilt of the offense, such considerations may be
argued in connection with the punishment to be assessed for the crime.”

Here, the deterrence argument in issue was made in the penalty
phase of the bifurcated trial. The Court finds no merit in the assignment
of error, and the judgment of the Court of Appeals of Virginia is affirmed.

Justices Stephenson and Koontz took no part in the
consideration or disposition of this appeal.

The defendant will pay to the Commonwealth thirty dollars in
damages.

It is ordered that the said circuit court allow counsel for
the appellant a fee of $725 for services rendered the appellant on this
appeal, in addition to counsel’s costs and necessary direct out-of-pocket
expenses.

The Commonwealth shall recover of the appellant the amount
paid court-appointed counsel to represent him in this proceeding, counsel’s
costs and necessary direct out-of-pocket expenses, and the fees and costs
to be assessed by the clerk of this Court and the clerks of the courts
below.

This order shall be certified to the Court of Appeals of
Virginia and the Circuit Court of the County of Fauquier and shall be
published in the Virginia Reports.

A Copy,

Teste:

David B. Beach, Clerk


Costs due the Commonwealth

by appellant in Supreme

Court of Virginia:

Attorney’s fee $925.00 plus costs and expenses

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