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January 8, 1999
Record No. 980187





Record No. 980188





Present: All the Justices

These two criminal appeals, involving findings
of guilty in noncapital felony prosecutions, present a common
issue: Did the Court of Appeals of Virginia err in reversing the
respective circuit courts, which limited evidence the defendants
sought to introduce during the sentencing proceedings conducted
as part of the bifurcated jury trials?

Code Sect. 19.2-295.1 sets forth the
procedure in such cases. It provides, in part, that after the
prosecution has had the opportunity to present evidence of the
defendant’s prior convictions, "the defendant may introduce
relevant, admissible evidence related to punishment." We are
concerned here with the meaning of the statutory term

At the outset, we issue a caveat. We shall
adhere strictly to the content of the records made in the
respective trial courts, a practice not followed in either of
these cases by the Court of Appeals, as we shall demonstrate.

In one case, appellee Vernon Leroy Shifflett
was found guilty by a jury in the Circuit Court of Albemarle
County of operating a motor vehicle on a public highway in
January 1995 after having been adjudicated an habitual offender,
it being a second or subsequent offense.

Prior to commencement of the sentencing
proceeding, the trial court and counsel discussed "what’s
relevant" with reference to punishment. The attorney for the
defendant represented to the court, "I do intend to put on
mitigating testimony about his employment, his family

Responding, the court mentioned
"factors" that may be relevant to punishment,
"range of punishment established by legislature, injury to
the victim, use of weapon, extent of offender’s participation,
the offense, offender’s motive in committing the offense, prior
record and rehabilitative efforts, drug and alcohol use, age,
health and education." The prosecutor then stated, "Why
he did it . . . is relevant . . . . But
not his job responsibilities and his family responsibilities and
the fact that impliedly the common law wife and the children are
going to have to make it without him for a while. That has no
relevance to it." Defense counsel responded, "I think
it does, I think it does."

The trial judge then ruled he would limit the
defendant’s evidence to the applicable factors previously
mentioned and said, "one of them isn’t how the family is
affected by it." The prosecutor and the court then agreed
with defense counsel that "defendant’s motive for committing
the offense" was admissible. Defendant’s girlfriend, and
mother of his two small children, claimed she had become ill
while driving defendant home from work, necessitating defendant
becoming the operator of the vehicle and resulting in his arrest.

Continuing, defense counsel argued to the trial
court that he wished to present evidence of the girlfriend’s
participation in the offense "and what happened that day and
the mitigating factor that led him to be behind the wheel [and] testimony from her about his support of the children, his income
— the income that the family has that he brings in and support
for her position that she did have those spells and the doctor is
here now to testify on the treatment that she’s had, to verify
what she says and that goes to why he took the wheel, the
offender’s motive for committing the offense." Responding,
the court stated that evidence of defendant’s "motive to
commit the offense" would be admissible.

The prosecutor then stated he did not object to
testimony from the girlfriend’s physician but said, "I do
object to her getting on the stand and saying I only make so much
money and I have to take care of the kids and all those other
things." Defense counsel answered, "I think that should
come in." The court ruled, "And that’s what I’m ruling
is not coming in."

During presentation of the evidence during the
sentencing phase, the court adhered to its prior rulings that
were based on defendant’s arguments presented to the court. The
girlfriend testified she became dizzy, could no longer operate
the vehicle safely, and was forced to allow the defendant to
drive. The girlfriend’s physician testified he had been treating
her for vertigo. The defendant’s employer, a painter, testified
defendant worked for him but the trial court refused to allow
testimony about "defendant’s present employment," the
trial judge stating he was being consistent with his prior

After the jury retired to deliberate
punishment, defense counsel stated to the court that "with
regard to Mr. Leroy Shifflett’s employment, Your Honor, that was
certainly relevant in terms of where he worked, how he got back
and forth to work, what he made in his employment, credentials
and how good a worker he was. That’s certainly all very
relevant." The court responded that "employment"
was not among the "factors" discussed earlier that was
relevant to punishment.

The jury fixed defendant’s punishment to
confinement in the penitentiary for three years. After the jury
was discharged and before the court sentenced defendant, he
presented testimony of his employer. He stated that he had
employed defendant for four months, that defendant was an
"excellent" worker, that he (the employer)
"need[s]" defendant because he had "a lot of
. . . work lined up in the future," and that
defendant had been able to find persons to drive him to work. The
court sentenced defendant in accordance with the verdict in a
September 1995 judgment order.

Upon appeal, a three-judge panel of the Court
of Appeals, one judge dissenting, affirmed the conviction and
sentence. Shifflett v. Commonwealth, 24 Va. App.
538, 484 S.E.2d 134 (1997). The court stated that defendant
contended on appeal "the trial court erred in preventing him
from eliciting testimony at the sentencing phase of his trial concerning
the impact of his incarceration upon his family and his
." Id. at 540, 484 S.E.2d at 135
(emphasis added). The court held the trial court did not abuse
its discretion in refusing to allow defendant "to elicit
testimony from his girlfriend and employer concerning the
financial impact his incarceration would have on his family and
employer." Id. at 543, 484 S.E.2d at 136. That
testimony, the court said, was "not relevant evidence
related to punishment for consideration by the jury under
Virginia law." Id., 484 S.E.2d at 137.

Upon rehearing en banc, the Court
of Appeals, in a 6-3 decision, reversed the case and remanded it
for a new sentencing proceeding. Shifflett v. Commonwealth,
26 Va. App. 254, 261, 494 S.E.2d 163, 167 (1997). The court
stated that the "employer’s testimony regarding Shifflett’s
success at work and his efforts to maintain a commuting schedule
that obviated his need to drive reflects on Shifflett’s
‘character and propensities,’" which are relevant to
sentencing. Id. at 260, 494 S.E.2d at 166. The court
further stated that the girlfriend’s testimony "was not
offered merely to prove the family’s apparent need for his
income. Her testimony would have proved that Shifflett was a
responsible father who worked earnestly to provide for his
children. Certainly, evidence that a defendant has contributed
positively to his family situation is a relevant
circumstance." Id. at 261, 494 S.E.2d at 166. We
awarded the Commonwealth this appeal from that judgment of the
Court of Appeals.

In the other case, appellee Emmitt Laron Taylor
was found guilty by a jury in the Circuit Court of Arlington
County of conspiring to distribute five or more pounds of
marijuana, possessing with the intent to distribute the same
amount of the drug, and transporting the same amount of the drug
into Virginia with the intent to sell or distribute it. The
defendant was arrested on October 10, 1995 on the premises of
Washington National Airport.

During the sentencing proceeding, the
Commonwealth presented evidence that defendant, 22 years of age
at the time of the February 1996 trial, had been convicted in
California in 1990 of armed robbery and in 1994 of a violation of
California’s narcotics laws.

Following presentation of this evidence, the
defendant took the witness stand and was asked by his attorney to
"tell the jury about your family." After defendant
stated he had an older brother, an older sister, and a younger
brother, and that the younger brother had been "killed"
because "they had a grudge against him," the trial
court sustained the prosecutor’s objection to the testimony. A
discussion followed among the court and counsel about what
evidence was relevant to punishment under the applicable statute.

Defense counsel argued that "who Emmitt
Taylor is is certainly a relevant issue." Responding to the
court’s question, "What do you propose to have him testify
to," defense counsel responded, "About his life."
The court interjected, "Life story?" and counsel
responded, "Yes."

The court ruled that evidence "just
relating the whole story" was inadmissible and not relevant
to sentencing. After defense counsel said, "Note my
objection, Your Honor," the court stated: "Now, the
statute that permits relevant and admissible evidence from the
Defendant on the sentencing phase of the case is limited to that,
and I don’t want to limit you anymore than that; but it does not
permit just a complete open door telling of everything."
Defense counsel responded, "All right, Your Honor."

The sentencing phase continued with the
defendant testifying that he was 17 years of age at the time of
the armed robbery conviction and that he pled guilty to the
narcotics charge because he was told it "was a juvenile
matter and would be sealed." Responding to further
questions, defendant testified that he had completed the 11th
grade in school, and that he had worked as a gardener, a cook,
and at a fish market.

The jury fixed defendant’s punishment to
confinement in the penitentiary for 18 years on each of the
conspiracy and distribution charges and to confinement for 20
years and an $80,000 fine on the transporting charge. After the
jury was discharged, the trial court granted defendant’s request
for a presentence report.

Six days after the jury had been discharged,
the trial court granted defendant’s request, made the day after
trial, to have inserted in the record a proffer of testimony.
Stating that the trial court’s ruling on evidence dealing with
punishment was "overly narrow," defense counsel offered
"some proof of what my client would have testified to."

During the post-trial hearing, defendant
testified, for example, that when he was age nine, his father was
robbed and killed; that he had no "male role models growing
up"; that his mother is a heavy drug user; that his younger
half-brother was killed by gunshots after an argument with his
assailants; that he had no fixed home prior to coming to
Virginia; and that he received no "instruction as to
discipline" from his family.

Following argument of counsel, the trial court
made two rulings in denying what it treated as a motion to
"reopen the case" to permit presentation of additional
evidence. First, the court ruled that the proffer was untimely.
The court stated that "the proffer should be made at the
moment of the exclusion in order to give the trial court the
opportunity to admit the evidence in the event its ruling to
exclude would be deemed to be in error." The court
continued: "However, here, the motion that is being made now
is not timely. And that is one of the reasons . . .
assigned for its denial." Second, the trial court ruled the
evidence presented in the proffer was not relevant to sentencing.

In judgments of conviction entered in June
1996, the trial court suspended execution of the conspiracy and
distribution sentences and imposed the transporting sentence.

Upon appeal, a panel of the Court of Appeals,
in an unpublished opinion dated the same day as the Shifflett
en banc opinion, reversed the trial court judgments
and remanded for a resentencing hearing. Reciting only the facts
presented during the proffer, ruled untimely by the trial court,
the Court of Appeals said the case was controlled by the Shifflett
en banc decision. The court held: "The
excluded evidence in this case clearly was relevant to
appellant’s background and family situation at the time of the
earlier conviction and was also probative of his current
situation." We awarded the Commonwealth this appeal from
that judgment of the Court of Appeals.

The crucial question in these appeals is what
did the General Assembly mean when it provided in Code
Sect. 19.2-295.1 that during the punishment phase of a
bifurcated noncapital jury trial, where the defendant has been
found guilty, "the defendant may introduce relevant
. . . evidence related to punishment"? This
statute was enacted in 1994 when Virginia changed the procedure
in such cases from unitary to bifurcated trials. See Acts
1994, ch. 828, 860, 881.

The law extant in the Commonwealth in 1994
relating to punishment in felony cases included the provisions of
Code Sect. 19.2-264.4(B), dealing with capital murder cases,
and the decision in Coppola v. Commonwealth, 220
Va. 243, 257 S.E.2d 797 (1979), interpreting that statute. When Coppola
was decided, as now, the statute provided that in capital murder
cases tried by jury, "evidence may be presented as to any
matter which the court deems relevant to sentence." The
statute goes on to provide that evidence that may be
"admissible, subject to the rules of evidence governing
admissibility," may include certain facts. Those are
"circumstances surrounding the offense, the history and
background of the defendant, and any other facts in mitigation of
the offense."

Continuing, the statute provided that facts in
mitigation may include, but shall not be limited to, the
following: "(i) The defendant has no significant history of
prior criminal activity, or (ii) the capital felony was committed
while the defendant was under the influence of extreme mental or
emotional disturbance or (iii) the victim was a participant in
the defendant’s conduct or consented to the act, or (iv) at the
time of the commission of the capital felony, the capacity of the
defendant to appreciate the criminality of his conduct or to
conform his conduct to the requirements of law was significantly
impaired; or (v) the age of the defendant at the time of the
commission of the capital offense."

In Coppola, a capital murder prosecution
tried by jury, the defendant complained the trial court
erroneously excluded the proffered testimony of his former wife
about the adverse effect upon their two young sons of defendant’s
arrest and prosecution. In finding no error, the Court said
"discretion is vested in the trial court to determine,
subject to the rules of evidence governing admissibility, the
evidence which may be adduced in mitigation of the offense."
Coppola, 220 Va. at 253, 257 S.E.2d at 804.

The Court stated that the proffered evidence
"is irrelevant on the issue of mitigation. It is not
analogous to any of the evidence specifically approved in the
statute. The kind of evidence therein contemplated bears upon the
record of the defendant and the atrociousness of his crime.
Evidence of a good previous record, and extenuating circumstances
tending to explain, but not excuse, his commission of the crime,
is admissible mitigating evidence . . . . But the
effect of his incarceration upon relatives is not a mitigating
circumstance for the jury to consider." Id. at
253-54, 257 S.E.2d at 804.

Against this background, which delineated the
types of factors considered "relevant" in capital
cases, the General Assembly crafted the statute in issue dealing
with noncapital cases. The same standard, relevant admissible
evidence related to punishment, was included. We perceive no
sound reason why the factors that may be considered by a jury in
capital murder cases should not likewise be available for
consideration by a jury in noncapital cases under
Sect. 19.2-295.1. The goal of having an informed jury assess
appropriate punishment should be no less essential merely because
a noncapital offense is involved.

But this is not a one-way street extending only
in the defendant’s direction. The statute also permits the
Commonwealth to introduce "relevant, admissible evidence in
rebuttal" to that offered by the defendant.

Therefore, we hold that a trial court, in
determining what evidence is relevant to punishment under Code
Sect. 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
Sect. 19.2-264.4(B), as interpreted in Coppola. The
kind of evidence contemplated by Sect. 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.
[1] And, a
trial court’s discretionary ruling on this issue should not be
disturbed on appeal absent a clear abuse of discretion. Coe
v. Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823

We shall now apply the foregoing principles to
the present cases. Initially, we observe that an appellate court
ought to decide cases based on the record made in the court
below. The appellate court, in fairness to the trial judge,
should not recast the evidence and put a different twist on a
question that is at odds with the question presented to the trial

Shifflett is an example of this
incorrect technique. The issue presented to the trial court by
the defendant, as we have demonstrated in our summary of the
record, was whether he was entitled to adduce testimony
concerning the impact of his incarceration upon his family and
his employment. Yet, the Court of Appeals said the girlfriend’s
testimony was offered to prove "that Shifflett was a
responsible father who worked earnestly to provide for his
children." Shifflett, 26 Va. App. at 261, 494 S.E.2d
at 166. Also, the Court of Appeals said the employer’s testimony
was offered to show defendant’s "character and
propensities." Id. at 260, 494 S.E.2d at 166. Neither
of these bases for admission of the girlfriend’s and the
employer’s testimony was urged upon the trial court prior to
submission of the case to the jury to assess punishment, and we
shall not use those grounds to decide this appeal.

Instead, we hold that the trial court,
consistent with Coppola, did not clearly abuse its
discretion by refusing to allow evidence concerning the impact of
defendant’s incarceration upon his family and his employment, and
the Court of Appeals erred in ruling to the contrary.

The Court of Appeals’ decision in Taylor
presents a similar problem. It addressed exclusively the facts
presented in the proffer, which the trial court explicitly
refused to consider because it was untimely. The fact that the
trial court, in an alternative ruling, may have erred by deciding
the proffered material was not relevant is beside the point. The
record made in the trial court, before defendant’s sentencing was
presented to the jury, was a request by defendant to adduce
evidence about his "life story" that amounted to
"a complete open door telling of everything."

Yet, the Court of Appeals did not address this
request made by defendant before the jury retired. Rather, the
appellate court said the proffered evidence "clearly
was relevant to appellant’s background and family
situation." We shall not use the proffered evidence to
decide this appeal.

We cannot say that the trial court clearly
abused its discretion by refusing to admit evidence about the
defendant’s life history when the defendant made a broad,
unrestricted, and nonparticularized request for "just
relating the whole story" and for "just a complete open
door telling of everything," and the Court of Appeals erred
in ruling to the contrary.

Consequently, we will reverse the judgment of
the Court of Appeals in Shifflett, and will enter final
judgment here reinstating the sentencing order of the Circuit
Court of Albemarle County. Likewise, we will reverse the judgment
of the Court of Appeals in Taylor, and will enter final
judgment here reinstating the sentencing orders of the Circuit
Court of Arlington County.

Record No. 980187 — Reversed and final

Record No. 980188 — Reversed and final





[1] In support of his contention that
Sect. 19.2-295.1 should be interpreted in a restrictive
manner, the Attorney General has advised us that the 1995 General
Assembly refused to enact House Bill No. 2212, which would have
added language to the statute specifically permitting
introduction of evidence about "the history and background
of the defendant and any other facts in mitigation or aggravation
of the offense." We are not persuaded by this information;
the legislature may well have determined that such amendment was
unnecessary because the statutory and case law already so