PRESENT: All the Justices
JOSEPH BOOKER
v. Record No. 071626 OPINION BY
JUSTICE BARBARA MILANO KEENAN
June 6, 2008
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the Court of Appeals
erred in affirming a judgment in a criminal case in which the
circuit court, in response to a question posed by the jury
during deliberations in the sentencing phase, instructed the
jury that the court had the power to reduce but not to increase
the sentence imposed by the jury.
Joseph Booker was tried by a jury in the Circuit Court of
Amelia County on indictments charging three counts of cocaine
distribution, in violation of Code § 18.2-248. The jury
convicted Booker of all three charges.
During the sentencing phase of Booker’s trial, the circuit
court instructed the jury that “[i]n Virginia, which now has no
parole, the defendant will serve at least 85 percent of any time
that is ultimately imposed by the [c]ourt.” In addition, the
jury was informed that it must impose a sentence of between five
and 40 years’ imprisonment for each charge.
After the case was submitted to the jury for sentencing
deliberations, the jury asked the following question, “Can the
[j]udge alter the sentence[?]” The circuit court informed the
parties that it was inclined to tell the jury that the court
could reduce but could not increase the sentence fixed by the
jury. Booker objected to this proposed response, arguing that
it would send the “wrong message,” and that the court simply
should instruct the jury that it should not be concerned with
what might occur after the jury determined Booker’s sentence.
The circuit court provided the following response to the jury
over Booker’s objection: “[T]he Court has the power to reduce,
but not increase the sentence. However, you shall not concern
yourselves with what happens after your verdict is returned.”
The jury fixed Booker’s sentence at 12 years’ imprisonment
for each of the three convictions. In accordance with the
verdict, the circuit court sentenced Booker to three consecutive
terms of 12 years’ imprisonment.
The Court of Appeals affirmed Booker’s convictions in an
unpublished opinion, holding that the circuit court did not err
in instructing the jury regarding the court’s authority to
reduce the sentence imposed by the jury. Booker v.
Commonwealth, Record No. 1754-05-2 (December 19, 2006). The
Court of Appeals concluded that the failure to provide an
accurate and direct response “could have both engendered further
speculation by the jury on whether the trial judge would
increase or decrease [Booker’s] punishment, and caused the jury
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to base [its] determination of [Booker’s] punishment on a
mistaken belief of the law.” Id., slip op. at 5. The Court of
Appeals held that the instruction was proper because it “was
neither misleading or confusing and prevented the jury from
basing its verdict on a misconception of the law.” Id. We
awarded Booker this appeal.
Booker argues that the Court of Appeals erred in affirming
the circuit court’s judgment because the circuit court
improperly informed the jury that the court could reduce but not
increase the sentence set by the jury. Booker contends that the
circuit court’s response invited the jury to speculate about
what action the court might take with regard to the sentence.
Thus, Booker asserts that the circuit court’s instruction to the
jury tainted the jury’s decision regarding the appropriate
punishment for the three offenses.
In response, the Commonwealth first maintains that Booker
did not adequately preserve his objection to the circuit court’s
proposed answer to the jury’s question. According to the
Commonwealth, Booker’s argument on appeal is barred by Rule 5:25
because Booker did not argue to the circuit court that the
court’s proposed answer permitted the jury to speculate
regarding what action might be taken after the jury made its
sentencing determination.
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Addressing the merits of the circuit court’s response, the
Commonwealth contends that the court’s response was a correct
statement of the law, and was appropriate because the answer was
given accurately without reference to inappropriate matters such
as executive clemency. The Commonwealth also argues that the
circuit court’s response likely would have reduced the jury’s
inclination to speculate about the court’s role in determining
the final sentence, especially in light of the fact that the
jury already had been informed that Booker would serve at least
85 percent of any sentence “ultimately imposed by the [c]ourt.”
Finally, the Commonwealth maintains that because the circuit
court also instructed the jury not to be concerned with what
would happen after the jury returned its verdict, the circuit
court effectively precluded the jury’s further consideration of
future action the circuit court might take regarding Booker’s
sentence. We disagree with the Commonwealth’s arguments.
Initially, we conclude that Booker preserved his objection
to the circuit court’s response to the jury’s question.
Although Booker did not argue in the circuit court that the
court’s response would encourage the jury to speculate about
future actions the court might take regarding Booker’s sentence,
the objection nevertheless informed the court that Booker viewed
the court’s response as providing improper information to the
jury. Thus, because the circuit court was informed with
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reasonable certainty of Booker’s concern, the court had the
ability to evaluate the merits of the objection and to make an
intelligent decision regarding the potential effect of the
instruction on the jury’s deliberation process. See Rule 5:25.
We review the circuit court’s response to the jury’s
question in the context of the sentencing function performed by
juries in criminal trials. When a defendant is found guilty by
a jury of a felony charge or a Class 1 misdemeanor, a separate
sentencing proceeding is held before the same jury to determine
the punishment the defendant should receive for those
convictions. Code § 19.2-295.1. The jury is charged with the
duty of determining just and proper punishment under the
evidence and within the penalty limits provided by statute.
After the jury fixes a sentence, the circuit court may suspend
that sentence, in whole or in part. Code § 19.2-303.
As a general rule, in determining a defendant’s sentence, a
jury is not permitted to consider what may happen to a defendant
after the jury reaches its verdict. See Yarbrough v.
Commonwealth, 258 Va. 347, 370, 519 S.E.2d 602, 614 (1999);
Jones v. Commonwealth, 194 Va. 273, 275, 72 S.E.2d 693, 694
(1952); Coward v. Commonwealth, 164 Va. 639, 646, 178 S.E. 797,
800 (1935). We recognized an exception to this general rule,
however, in our holding in Fishback v. Commonwealth, 260 Va.
104, 532 S.E.2d 629 (2000).
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There, we considered the issue whether a defendant
convicted of a felony that was not a capital offense was
entitled to have the jury instructed that parole has been
abolished in Virginia for offenses committed after January 1,
1995. Id. at 108, 532 S.E.2d at 630. We held that the
defendant was entitled to such an instruction, and also
concluded that, when applicable, a jury also shall be instructed
that a defendant could be eligible for a geriatric release as
permitted by statute, which determination involves “essentially
a mathematical calculation.” Id. at 115, 532 S.E.2d at 634.
At the same time, we held that juries should not be
instructed on the issue of earned sentencing credits that a
prisoner may obtain under Code § 53.1-202.2 through –202.4,
thereby reducing his period of incarceration, because obtaining
these credits depends on a prisoner’s conduct while
incarcerated, on his participation in certain programs
established by the Department of Corrections, and on the
executive branch’s subjective assessment of the prisoner’s
progress. Id. We observed that a jury would be required to
speculate in order to consider as part of its sentencing
determination the possibility that a defendant could earn such
future credits. Id. Thus, we held that juries are not to be
instructed about the possibility that a defendant will obtain
this type of future credit. Id. at 116, 532 S.E.2d at 634.
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These separate holdings in Fishback illustrate an important
distinction between instructions that properly further the goal
of “truth in sentencing” by removing the possibility that a jury
will act upon misconceptions, and those instructions that have
the improper effect of inviting the jury to speculate concerning
the likelihood of future actions that may ultimately affect the
length of a defendant’s incarceration. See Bell v.
Commonwealth, 264 Va. 172, 207-08, 563 S.E.2d 695, 718 (2002).
A jury instruction regarding a defendant’s ineligibility for
parole is proper, because it serves to eliminate a common
misconception that a defendant may only serve a small portion of
a jury’s sentence. See Fishback, 260 Va. at 113, 532 S.E.2d at
633. In contrast, a jury instruction that a defendant may be
eligible for earned sentencing credits once incarcerated is
improper, because the jury cannot employ this information in its
sentencing determination without resorting to speculation about
the defendant’s future behavior while incarcerated. See Bell,
264 Va. at 206-07, 563 S.E.2d at 718; Fishback, 260 Va. at 116,
532 S.E.2d at 634.
Based on this distinction between instructions that do not
allow speculation by the jury and those that effectively permit
such speculation, we conclude that the challenged instruction in
the present case was improper. The instruction should not have
been given because it effectively permitted the jury to consider
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as part of its sentencing determination the speculative factor
whether the circuit court later would reduce Booker’s sentence
given the nature of his crimes, the other evidence in the case,
or factors unknown to the jury at the time it imposed its
sentence. Speculation of this nature also could have resulted
in the jury incorrectly concluding that its role in the
sentencing process was minimal and, thus, have yielded a result
“inconsistent with a fair trial both to the defendant and the
Commonwealth.” Fishback, 260 Va. at 115, 532 S.E.2d at 634;
accord Bell, 264 Va. at 207-08, 563 S.E.2d at 718.
We disagree with the Commonwealth’s assertion that the jury
nevertheless was instructed properly because it also was told
that it should not concern itself with what might happen after
returning its verdict. There is no assurance that the jury
understood the circuit court’s general admonition against
considering what might occur afterwards as negating the jury’s
ability to consider the information directly provided by the
court that the judge could reduce the sentence imposed by the
jury. Therefore, we hold that the circuit court’s action giving
the improper instruction requires reversal of this case, and
that the Court of Appeals erred in reaching a contrary
conclusion.
For these reasons, we will reverse the Court of Appeals’
judgment, vacate Booker’s sentences, and remand the case to the
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Court of Appeals for further remand to the circuit court for a
new sentencing hearing conducted before a new jury pursuant to
Code § 19.2-295.1.
Reversed and remanded.
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