COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Cole Argued at Richmond, Virginia
KEVIN CHASE NEWMAN MEMORANDUM OPINION * v. Record No. 0369-96-2 BY JUDGE MARVIN F. COLE JULY 1, 1997 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY Charles L. McCormick, Judge Michael Morchower; Christopher C. Booberg (Morchower, Luxton & Whaley, on brief), for appellant.
Ruth Ann Morken, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Kevin Chase Newman (defendant) was convicted in a jury trial
of seven felonies. He contends that the trial court erred in
refusing to inform the jury that his sentence would be served
according to the truth-in-sentencing law which took effect in
1995. We affirm the convictions.
After the jury found the defendant guilty of all charges
against him, it retired to deliberate upon the punishment. The
jury sent the following note to the trial judge: "Has the new
violent offender law gone into effect in Virginia, and can the
accused get paroled?" The trial judge made the following
response to the question: [T]he answer to that [question] is that * Pursuant to Code § 17-116.010 this opinion is not designated for publication. I am not permitted to give you an answer. I can only say to you that you are to do as you think appropriate insofar as sentencing is concerned, and that you [are] not to concern yourself with what might happen thereafter. In other words, you are to impose such sentence as you think is appropriate under the circumstances of this case, and you are not to concern yourselves with what might happen after that. That is the answer that the Court has to give you under the circumstances.
The defendant argues that the case law precluding a parole
instruction to the jury applies to situations occurring before
parole was abolished in January 1995, when Code § 53.1-165.1 was
passed. He asserts that the refusal of the trial court to inform
the jury of the current sentencing laws violated his due process
rights under the federal constitution, citing Simmons v. South
Carolina, 512 U.S. 154 (1994), as authority for his position.
We find that the question raised in this case was recently
addressed in Mosby v. Commonwealth, 24 Va. App. 284, 482 S.E.2d
72 (1997). At the sentencing phase, Mosby proffered an
instruction telling the jury that they were permitted to consider
that Virginia has abolished parole. The trial judge refused the
instruction. After deliberating on the sentence, the jury
tendered the following question to the trial judge: "'[W]e [are]
unclear as to the status of parole in the state of Virginia and
[would] like an answer to that.'" Id. at 287, 482 S.E.2d at 73.
The trial judge responded by stating: "'[T]he status of the law
is that at this time the legislature has set a range [of
2 punishment] that you are to consider, that range has been given
to you in your instructions and what happens after that is set by
other [parameters] that are not to concern you. . . .'" On
appeal, we upheld the trial judge's decision and declared: The Simmons decision clearly requires that juries in Virginia must be informed of parole ineligibility when the Commonwealth argues future dangerousness in capital cases. See Mickens v. Commonwealth, 249 Va. 423, 457 S.E.2d 9 (1995). However, Simmons imposes no such requirement in noncapital cases.
Id. at 290, 482 S.E.2d at 74.
In Mosby, we further said that because Simmons did not
apply, "the established Virginia law controls; a trial judge is
not required to instruct juries on the status of a defendant's
eligibility for parole." Id. at 290, 482 S.E.2d at 74-75
(citation omitted).
As in this case, the defendant in Mosby argued that recent
legislative changes in the law reflected a shift in Virginia's
former policy which should require that juries now be told of a
convicted felon's parole eligibility. This Court, in Mosby, did not accept this assertion and held that Code § 19.2-295.1
contained no provisions requiring that the jury be told of a
defendant's parole eligibility.
We find that the facts in Mosby are substantially similar to
the circumstances in this case and that the Mosby decision is
binding upon us. Accordingly, we affirm the defendant's
convictions.
3 Affirmed.
4 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 refusing to inform the jury, in response
to its question about the availability of parole, that parole has
been abolished in Virginia. 1 I therefore dissent. I.
While deciding the proper sentence to impose upon Newman,
the jury asked the trial judge whether Newman could "get
paroled." After the judge refused to answer the jury's question,
the jury imposed the maximum terms of imprisonment for each
offense. The jury's effort to determine Newman's parole
eligibility conclusively establishes that the jury was uninformed
about the law and that the issue of parole had an impact on the
jury's decision to impose the maximum prison sentences.
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). After the jury asked about parole, the judge knew
the jury was unaware that parole has recently been eliminated in 1 "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).
5 Virginia. Under these circumstances, I would hold that the trial
judge erred in refusing to answer the jury's question. See
Walker v. Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d ___,
___ (1997) (Benton, J., dissenting) ("The courts should not
permit jurors to sentence based upon the erroneous belief that
parole release still exists.").
To exacerbate matters, the trial judge responded to the
question by telling the jury not "to concern [themselves] with
what might happen []after" the jury imposed its sentence. By
referring to parole as something that "might happen," the judge
implied that parole was, in fact, available. Moreover, the
jury's decision to impose the maximum terms of imprisonment
supports the inference that the jury probably concluded, though
erroneously, that Newman could be eligible for parole. It is true, as the State points out, that the trial court admonished the jury that "you are instructed not to consider parole" and that parole "is not a proper issue for your consideration." Far from ensuring that the jury was not misled, however, this instruction actually suggested that parole was available but that the jury, for some unstated reason, should be blind to this fact.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Cole Argued at Richmond, Virginia
KEVIN CHASE NEWMAN MEMORANDUM OPINION * v. Record No. 0369-96-2 BY JUDGE MARVIN F. COLE JULY 1, 1997 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY Charles L. McCormick, Judge Michael Morchower; Christopher C. Booberg (Morchower, Luxton & Whaley, on brief), for appellant.
Ruth Ann Morken, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Kevin Chase Newman (defendant) was convicted in a jury trial
of seven felonies. He contends that the trial court erred in
refusing to inform the jury that his sentence would be served
according to the truth-in-sentencing law which took effect in
1995. We affirm the convictions.
After the jury found the defendant guilty of all charges
against him, it retired to deliberate upon the punishment. The
jury sent the following note to the trial judge: "Has the new
violent offender law gone into effect in Virginia, and can the
accused get paroled?" The trial judge made the following
response to the question: [T]he answer to that [question] is that * Pursuant to Code § 17-116.010 this opinion is not designated for publication. I am not permitted to give you an answer. I can only say to you that you are to do as you think appropriate insofar as sentencing is concerned, and that you [are] not to concern yourself with what might happen thereafter. In other words, you are to impose such sentence as you think is appropriate under the circumstances of this case, and you are not to concern yourselves with what might happen after that. That is the answer that the Court has to give you under the circumstances.
The defendant argues that the case law precluding a parole
instruction to the jury applies to situations occurring before
parole was abolished in January 1995, when Code § 53.1-165.1 was
passed. He asserts that the refusal of the trial court to inform
the jury of the current sentencing laws violated his due process
rights under the federal constitution, citing Simmons v. South
Carolina, 512 U.S. 154 (1994), as authority for his position.
We find that the question raised in this case was recently
addressed in Mosby v. Commonwealth, 24 Va. App. 284, 482 S.E.2d
72 (1997). At the sentencing phase, Mosby proffered an
instruction telling the jury that they were permitted to consider
that Virginia has abolished parole. The trial judge refused the
instruction. After deliberating on the sentence, the jury
tendered the following question to the trial judge: "'[W]e [are]
unclear as to the status of parole in the state of Virginia and
[would] like an answer to that.'" Id. at 287, 482 S.E.2d at 73.
The trial judge responded by stating: "'[T]he status of the law
is that at this time the legislature has set a range [of
2 punishment] that you are to consider, that range has been given
to you in your instructions and what happens after that is set by
other [parameters] that are not to concern you. . . .'" On
appeal, we upheld the trial judge's decision and declared: The Simmons decision clearly requires that juries in Virginia must be informed of parole ineligibility when the Commonwealth argues future dangerousness in capital cases. See Mickens v. Commonwealth, 249 Va. 423, 457 S.E.2d 9 (1995). However, Simmons imposes no such requirement in noncapital cases.
Id. at 290, 482 S.E.2d at 74.
In Mosby, we further said that because Simmons did not
apply, "the established Virginia law controls; a trial judge is
not required to instruct juries on the status of a defendant's
eligibility for parole." Id. at 290, 482 S.E.2d at 74-75
(citation omitted).
As in this case, the defendant in Mosby argued that recent
legislative changes in the law reflected a shift in Virginia's
former policy which should require that juries now be told of a
convicted felon's parole eligibility. This Court, in Mosby, did not accept this assertion and held that Code § 19.2-295.1
contained no provisions requiring that the jury be told of a
defendant's parole eligibility.
We find that the facts in Mosby are substantially similar to
the circumstances in this case and that the Mosby decision is
binding upon us. Accordingly, we affirm the defendant's
convictions.
3 Affirmed.
4 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 refusing to inform the jury, in response
to its question about the availability of parole, that parole has
been abolished in Virginia. 1 I therefore dissent. I.
While deciding the proper sentence to impose upon Newman,
the jury asked the trial judge whether Newman could "get
paroled." After the judge refused to answer the jury's question,
the jury imposed the maximum terms of imprisonment for each
offense. The jury's effort to determine Newman's parole
eligibility conclusively establishes that the jury was uninformed
about the law and that the issue of parole had an impact on the
jury's decision to impose the maximum prison sentences.
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). After the jury asked about parole, the judge knew
the jury was unaware that parole has recently been eliminated in 1 "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).
5 Virginia. Under these circumstances, I would hold that the trial
judge erred in refusing to answer the jury's question. See
Walker v. Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d ___,
___ (1997) (Benton, J., dissenting) ("The courts should not
permit jurors to sentence based upon the erroneous belief that
parole release still exists.").
To exacerbate matters, the trial judge responded to the
question by telling the jury not "to concern [themselves] with
what might happen []after" the jury imposed its sentence. By
referring to parole as something that "might happen," the judge
implied that parole was, in fact, available. Moreover, the
jury's decision to impose the maximum terms of imprisonment
supports the inference that the jury probably concluded, though
erroneously, that Newman could be eligible for parole. It is true, as the State points out, that the trial court admonished the jury that "you are instructed not to consider parole" and that parole "is not a proper issue for your consideration." Far from ensuring that the jury was not misled, however, this instruction actually suggested that parole was available but that the jury, for some unstated reason, should be blind to this fact. . . . While juries ordinarily are presumed to follow the court's instructions, we have recognized that in some circumstances "the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored."
Simmons v. South Carolina, 512 U.S. 154, 170-71, 114 S. Ct. 2187,
2197 (1994) (plurality opinion) (citations omitted). The trial
6 judge's response to the jury's question did not aid in
alleviating the confusion, and in fact, it may have misled the
jury. Thus, I would hold that the trial judge erred by providing
a jury instruction that was misleading. Cf. Blevins v.
Commonwealth, 209 Va. 622, 628, 166 S.E.2d 325, 330 (1969).
II.
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. 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 dramatic 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. The new procedure under Code § 19.2-295.1
fundamentally changed the way sentencing proceedings are now
conducted before juries in prosecutions for non-capital offenses.
As a result, the reasons that previously justified depriving the
jury of information concerning parole no longer exist.
Under the previous jury sentencing scheme, juries in
7 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,
"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.
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).
8 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 utilized by the executive
branch to reduce juries' 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. 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
9 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 and
cannot be used to temper whatever sentence the jury opts to levy.
I dissent.