Gillespie v. Commonwealth

Present: Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and
Agee, JJ., and Russell, S.J.

ROBERT LEWIS GILLESPIE,
a/k/a ROBERT LEWIS GILLISPIE OPINION BY
SENIOR JUSTICE CHARLES S. RUSSELL
v. Record No. 060034 November 3, 2006

COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

This appeal requires us to construe the language of Code

§ 19.2-295.1 concerning bifurcated trials in criminal cases.

It presents the question whether the Commonwealth may, at the

sentencing stage of a bifurcated trial, present evidence of

the sentences imposed upon the defendant as a part of his

record of prior convictions.

Facts and Proceedings

In a jury trial, Robert Lewis Gillispie 1 was found guilty

of statutory burglary. The jury fixed his punishment at five

years imprisonment. After considering a pre-sentence report,

the trial court imposed that sentence, to be followed by three

years of post-release probation supervision.

1
The defendant was indicted as "Robert Lewis Gillespie
AKA Robert Lewis Gillispi." He was sentenced by the trial
court as "Robert Lewis Gillespie a/k/a Robert Lewis Gillispie"
and that style was used in all subsequent proceedings in the
Court of Appeals and in this Court. The defendant, in his
petitions for appeal in both courts, as well as in his briefs
on appeal, has stated that the correct spelling of his name is
"Gillispie."
 At the sentencing stage of the trial, the Commonwealth

offered an authenticated copy of a “Conviction and Sentencing

Order” entered in the same court, dated December 8, 1998,

showing that Gillispie had been convicted of grand larceny and

sentenced to five years imprisonment, with three years and

four months suspended upon the condition that Gillispie be of

good behavior and submit to drug treatment. The order also

showed that Gillispie had been charged with robbery but found

not guilty of that offense.

Defense counsel objected to the exhibit as offered and

moved the trial court to redact any reference to the robbery

charge. The Commonwealth agreed and the trial court redacted

that portion of the order. The defense also moved the court

to redact the sentencing information relating to the grand

larceny charge, as well as any reference to drug treatment, on

the ground that both were “prejudicial to this case and could

inflame the jury.” The Commonwealth opposed the motion and

the court denied it. The 1998 order was admitted in evidence

without change except for the redaction of the reference to

the robbery charge.

After this evidence was received, the jury retired to

consider sentencing. During its deliberations, the jury sent

written questions to the trial court, inquiring whether the

judge could reduce the sentence the jury fixed, whether the

2
defendant had been on probation when the crime occurred, and

in what facility the defendant would be confined if

imprisoned. The jury explained, in the last question, “We

don’t want this defendant to spend time in penitentiary

w/murderers & rapists.” The court answered these questions

properly, by replying that the jurors should fix a sentence

they considered appropriate and not concern themselves with

future events, that they should not consider the defendant’s

probation status, and that the Department of Corrections, not

the court or the jury, determines where prisoners are housed.

After the jury reported that it had reached a verdict and

returned to the courtroom, a juror asked the judge whether

suspension and parole were different, and if the judge made

the decision whether to suspend a sentence. The court

answered both these questions in the affirmative, and asked

all jurors whether, in the light of those answers, they were

satisfied with the verdict they had reached or whether they

wished to retire to the jury room for further deliberations.

The jurors unanimously stated that they were satisfied and

presented their verdict.

Gillispie appealed his conviction and sentence to the

Court of Appeals, which affirmed by a per curiam opinion. We

awarded him an appeal, limited to his assignment of error

3
relating to the trial court’s refusal to redact sentencing

information from his record of prior convictions.

Analysis

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 or a Class 1
misdemeanor . . . a separate proceeding limited to
the ascertainment of punishment shall be held as
soon as practicable before the same jury. At such
proceeding, the Commonwealth shall present the
defendant’s prior criminal convictions by certified,
attested or exemplified copies of the record of
conviction. . . . 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. Nothing in this section shall prevent
the Commonwealth or the defendant from introducing
relevant, admissible evidence in rebuttal.

In denying Gillispie’s appeal on this issue, the Court of

Appeals followed its prior decisions in Gilliam v.

Commonwealth, 21 Va. App. 519, 465 S.E.2d 592 (1996), and

Mosby v. Commonwealth, 24 Va. App. 284, 482 S.E.2d 72 (1997),

wherein it held that “Code § 19.2-295.1 allows the

Commonwealth to present evidence of the defendant’s prior

criminal convictions, which includes the conviction orders

that show length of prior sentences.” Mosby, 24 Va. App. at

291, 482 S.E.2d at 75. The Court of Appeals reasoned that the

purpose of the statute was to enable the jury to determine an

appropriate sentence and that previous efforts to punish and

4
rehabilitate the defendant were indispensable to that purpose.

Gilliam, 21 Va. App. at 524, 465 S.E.2d at 595.

Our duty is to interpret the intent of the General

Assembly in adopting the language it chose. If the language

is plain and unambiguous, there is no need for judicial

construction; the language will be applied as written. Tiller

v. Commonwealth, 193 Va. 418, 420, 69 S.E.2d 441, 442 (1952).

Language is ambiguous if it admits of being understood in more

than one way, refers to two or more things simultaneously, is

difficult to comprehend, is of doubtful import, or lacks

clearness and definiteness. Brown v. Lukhard, 229 Va. 316,

321, 330 S.E.2d 84, 87 (1985).

The Court of Appeals, in Gilliam, found the language of

the statute in question here to be ambiguous because it was

susceptible of more than one interpretation, and therefore

appropriate for judicial construction. 21 Va. App. at 522,

465 S.E.2d at 594. We agree that an ambiguity exists, as

illustrated by the positions of the parties here: The

defendant contends that “record of conviction” means a

document showing only the fact of conviction; the Commonwealth

contends that the term refers to the final order entered by

the trial court, typically showing both conviction and

sentence. Nevertheless, we reach a different conclusion from

5
that reached by the Court of Appeals as to the intent of the

General Assembly in enacting Code § 19.2-295.1.

The General Assembly adopted Code § 19.2-295.1 in its

original form in 1994. At that time, bifurcated trials in

capital murder cases were provided for by Code §§ 19.2-264.2,

et seq., which had been in effect in varying forms since 1977.

The General Assembly clearly had those laws in contemplation

in 1994, when considering the extension of bifurcated trials

to non-capital felonies for the first time in our history.

Code § 19.2-264.2 provided then, as it does now, that the

jury, at the penalty phase of a capital murder case, shall not

impose the death penalty unless it finds either the “future

dangerousness” predicate or the “vileness” predicate to exist

“after consideration of the past criminal record of

convictions of the defendant.” Code § 19.2-264.4(C) provided

then, as it does now, that in the penalty phase of a capital

murder trial, evidence may be admissible, subject to the rules

of evidence, that includes the “prior history” of the

defendant. 2

2
In LeVasseur v. Commonwealth, 225 Va. 564, 593-94, 304
S.E.2d 644, 660 (1983), we held that these two provisions,
read together, were not unconstitutionally vague, despite
their differing language.

6
 In ascertaining legislative intent, we presume that the

General Assembly, when enacting new laws, is fully aware of

the state of existing law relating to the same general subject

matter. United Masonry, Inc. v. Riggs National Bank, 233 Va.

476, 480, 357 S.E.2d 509, 512 (1987); Cape Henry v. Natl.

Gypsum, 229 Va. 596, 600, 331 S.E.2d 476, 479 (1985). The

General Assembly is not only presumed to have been aware of

the capital murder statutes in effect in 1994, but is also

presumed to have been aware of our decisions construing them.

Charles v. Commonwealth, 270 Va. 14, 19, 613 S.E.2d 432, 434

(2005) (citing Waterman v. Halverson, 261 Va. 203, 207, 540

S.E.2d 867, 869 (2001)).

In Bassett v. Commonwealth, 222 Va. 844, 858, 284 S.E.2d

844, 853 (1981), we were presented with the precise question

presented by this appeal, but in the context of a capital

murder case. There, we held that the sentences imposed as a

result of the defendant’s prior convictions might properly be

admitted at the penalty phase of a capital murder trial,

observing: “The sentence reflects the gravity of the offense

and the offender’s propensity for violence.” Id.

In the light of our interpretation of the capital murder

statutes in Bassett, the General Assembly, if it had desired

the same result in non-capital felony trials, could simply

have mirrored the capital murder laws when enacting Code

7
§ 19.2-295.1. Instead, it employed more restrictive language

than it had used in the capital murder laws, limiting the

Commonwealth to the introduction of “the defendant’s prior

criminal convictions” by presenting copies of the “record of

conviction.” (Emphasis added.) Section 19.2-295.1 was enacted

without any provisions permitting the introduction of evidence

of prior sentences as a part of the defendant’s “history and

background” in the Commonwealth’s case in chief at the penalty

phase. By contrast, the Commonwealth may do just that in

capital murder cases, relying on our interpretation in

Bassett. The General Assembly had an opportunity to make

bifurcated trials in non-capital cases similar to those in

capital cases, but chose a different course.

We consider the General Assembly’s departure from the

language it had used in enacting the capital murder laws to be

a significant demonstration of a legislative intent to

accomplish a different result with respect to non-capital

cases. We therefore construe the words “prior criminal

convictions” and “record of conviction,” as employed in Code

§ 19.2-295.1 to mean exactly what they say, and no more.

Thus, in the Commonwealth’s case in chief at the penalty

phase of the trial of a non-capital felony or a Class 1

misdemeanor, the Commonwealth is required to introduce

evidence, as prescribed by the statute, of records showing

8
only the fact of conviction of a criminal offense, including

the name of the crime, the date of the conviction and the

court in which the conviction occurred. If the record

contains information concerning proceedings subsequent to

conviction, such as sentence, suspension, probation or other

rehabilitative efforts, such information should be redacted

before the record is received in evidence.

In the present appeal, the Commonwealth relies on our

language in Commonwealth v. Shifflett, 257 Va. 34, 43, 510

S.E.2d 232, 236 (1999):

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 § 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.

The Commonwealth’s reliance on Shifflett is misplaced. That

case dealt with the obverse aspect of Code § 19.2-295.1, the

question of what evidence the defendant may introduce at the

penalty phase of a bifurcated non-capital felony trial. In

§ 19.2-295.1, the General Assembly imposed no such limitations

on the defendant’s evidence as it had placed upon the

Commonwealth. While limiting the Commonwealth to “prior

criminal convictions,” the statute expressly provides that the

defendant “may introduce relevant, admissible evidence related

to punishment.” It was that language that we construed in

9
Shifflett, 3 when we held that the trial court’s decision as to

relevancy would only be set aside for a clear abuse of

discretion. Id. at 44, 510 S.E.2d at 237. For that reason,

nothing we decide here is inconsistent with our holding in

Shifflett.

It is conceivable that a defendant may, for his own

purposes, wish to offer sentencing information at the penalty

phase, and in our view of the statute, he would be free to do

so. Further, as we observed in Shifflett, the statute is a

two-way street. The Commonwealth as well as the defendant may

introduce “relevant, admissible evidence in rebuttal.” Id. at

43-44, 510 S.E.2d at 236. Thus, the Commonwealth may

introduce evidence of sentencing and prior efforts to

rehabilitate if the court, in its discretion, deems it

relevant and admissible to rebut evidence the defendant has

introduced at the penalty phase.

Conclusion

Because the Court of Appeals erred in holding that the

sentencing information was properly admitted in the

3
As originally enacted in 1994, the defendant could only
introduce such evidence if the Commonwealth had first
introduced evidence of prior convictions. The following year,
however, the General Assembly amended the statute to provide
that the defendant might introduce his “evidence related to
punishment” whether the Commonwealth had introduced a record
of prior convictions or not. 1995 Acts, ch. 567.

10
Commonwealth’s case in chief at the penalty phase of the

trial, we will reverse the judgment appealed from and remand

the case to the Court of Appeals for further remand to the

trial court for further proceedings consistent with this

opinion, limited to the issue of sentencing, pursuant to the

provisions of Code § 19.2-295.1.

Reversed and remanded.

JUSTICE KINSER, with whom JUSTICE AGEE joins, dissenting.

I respectfully dissent because I cannot reconcile the

majority’s conclusion with either the letter or the spirit of

Virginia’s bifurcated scheme for the trial of non-capital

felonies and Class 1 misdemeanors.

The premise underlying the majority’s holding is that in

Bassett v. Commonwealth, 222 Va. 844, 284 S.E.2d 844 (1981),

“we were presented with the precise question presented by this

appeal.” I disagree. In that case, the defendant objected to

the admission of information concerning his prior sentences on

the basis that the evidence lacked probative value and was

unduly prejudicial. Brief of Appellant at 61, Bassett v.

Commonwealth, 222 Va. 844, 284 S.E.2d 844 (1981) (Record No.

810301). Neither the litigants nor the Court discussed the

meaning of the phrases “record of convictions” in Code § 19.2-

264.2 or “prior history” in Code § 19.2-264.4(C). Instead, we

11
were concerned only with subsection B of Code § 19.2-264.4,

which states, “[E]vidence may be presented as to any matter

which the court deems relevant to sentence.” The Court

rejected the defendant’s argument, concluding that evidence of

the sentences previously imposed on the defendant was relevant

to “the gravity of the offense and [the defendant’s]

propensity for violence” under Code § 19.2-264.4(B) and,

therefore, admissible. Bassett, 222 Va. at 858, 284 S.E.2d at

853.

That the Court in Bassett did not purport to ascribe

definitions to the terms “record of convictions” and “prior

history” undercuts the majority’s reasoning. It is axiomatic

that we cannot presume that the General Assembly, in enacting

Code § 19.2-295.1, relied on our interpretation of statutory

language in Bassett when we never undertook any such

interpretation in the first place. Consequently, I turn to

other canons of statutory interpretation to ascertain the

General Assembly’s intent in Code § 19.2-295.1.

In my view, a proper analysis begins with an examination

of the words the General Assembly used, rather than those it

did not. See Chase v. DaimlerChrysler Corp., 266 Va. 544,

547, 587 S.E.2d 521, 522 (2003). The plain language of Code

§ 19.2-295.1 requires the Commonwealth to present “the

defendant’s prior criminal convictions by certified, attested

12
or exemplified copies of the record of conviction.” Our

decisions recognize the term “conviction” often embraces more

than a jury’s verdict finding a defendant guilty. Rather, in

contexts such as this one, it entails a “[j]udgment . . .

entered on [the] verdict.” Ramdass v. Commonwealth, 248 Va.

518, 520, 450 S.E.2d 360, 361 (1994) (emphasis added). In

Smith v. Commonwealth, 134 Va. 589, 113 S.E. 707 (1922), this

Court held:

“[W]hen the context of the statute refers to the
successive steps in a criminal case, or any
particular stage of such a prosecution, as
distinguished from others, th[e] words[,
conviction or convicted,] apply simply and solely
to the verdict of guilty; but where the reference
is to the ascertainment of guilt in another
proceeding, in its bearings upon the status or
rights of the individual in a subsequent case,
there a broader meaning attaches to the
expressions, and a ‘conviction’ is not
established, or a person deemed to have been
‘convicted’ unless it is shown that a judgment
has been pronounced upon the verdict.”

Id. at 598, 113 S.E. at 710 (quoting People v. Fabian, 85 N.E.

672, 675 (N.Y. 1908)); see also White v. Commonwealth, 79 Va.

611, 615−16 (1884).

In the context of a bifurcated trial under Code § 19.2-

295.1, the phrase “prior criminal convictions” refers to the

“ascertainment of guilt in another proceeding” that will bear

upon “the status or rights” of a defendant in a subsequent

criminal adjudication. Smith, 134 Va. at 598, 113 S.E. at

13
710. In my view, it does not refer to the mere verdict of

guilt or “fact of conviction.” Thus, a defendant’s prior

criminal convictions necessarily means the judgments

pronounced upon verdicts of guilt. Id.

In this case, the Commonwealth carried out its statutory

duty by introducing a certified copy of the order of judgment

pronounced upon a trial court’s verdict finding Gillispie

guilty of grand larceny. Neither the majority nor the parties

argue that there is anything anomalous about the inclusion of

sentencing information in a trial court’s judgment of

conviction. The majority concludes, however, that the

Commonwealth can introduce “only the fact of conviction of a

criminal offense, including the name of the crime, the date of

the conviction and the court in which the conviction

occurred.” To comply with the majority’s holding, redaction

of a significant portion of information set forth in judgments

of conviction, which are the most common and reliable

documentation of a defendant’s “record of conviction,” will be

required as a matter of course. I do not believe the General

Assembly intended such an absurd result. See, e.g., Cook v.

Commonwealth, 268 Va. 111, 116, 594 S.E.2d 597, 87 (2004).

14
 Nor is the majority’s conclusion in accord with the

General Assembly’s purposes in enacting a bifurcated trial

procedure for non-capital, felony cases.

When we know the object of a statute and are
called upon to construe a phrase or a sentence
which, standing alone, may be susceptible of
different interpretations, we know of no safer rule
than to take the statute by its four corners and
critically examine it as a whole to ascertain the
legislative intent, as manifested by its different
provisions. If, upon such an examination, an
interpretation can be made, consistent with the
language used, which will carry into effect the
object sought to be accomplished by the statute,
that interpretation should be adopted, in preference
to one which would be equally consistent with the
language used, standing alone, but which would
defeat, or tend to defeat, the manifest intent of
the legislature.

Harris v. Commonwealth, 142 Va. 620, 625, 128 S.E. 578, 579

(1925).

Criminal punishment is the means by which an orderly

state pursues the recognized ends of prevention, restraint,

rehabilitation, deterrence, education, retribution, and

restoration. 1.5 Wayne R. LaFave, Substantive Criminal Law

§ 1.5 (2d ed. 2003 & Supp. 2007); see also Byrd v.

Commonwealth, 30 Va. App. 371, 375, 517 S.E.2d 243, 245 (1999)

(“the purposes underlying the punishment of criminal conduct

include deterrence, incapacitation, rehabilitation, and

retribution”). With these goals in mind, a jury has the duty

to fix “a specific term of confinement that it considers to be

15
an appropriate punishment under all the circumstances revealed

by the evidence in the case.” Fishback v. Commonwealth, 260

Va. 104, 113, 532 S.E.2d 629, 633 (2000). We have held, “A

jury should not be required to perform this critical and

difficult responsibility without the benefit of all

significant and appropriate information.” Id. That the

effectiveness of previous attempts to rehabilitate, deter, or

educate a particular defendant is “significant and appropriate

information” for a jury to consider is beyond serious

question. See Bassett, 222 Va. at 858, 284 S.E.2d at 853.

Thus, in my view, the General Assembly’s purpose in enacting

Code § 19.2-295.1 was to advance “truth in sentencing.”

Fishback, 260 Va. at 113, 532 S.E.2d at 632.

The majority opinion, however, is not in accord with that

purpose. If the majority believes the General Assembly had

another purpose in mind when it enacted Code § 19.2-295.1, its

opinion does not disclose it.

The better view is that the General Assembly did not

intend to limit the evidence admissible in the Commonwealth’s

case in chief in the penalty phase of a non-capital, felony

trial to the mere fact of a defendant’s prior convictions. I

cannot ascribe a meaning to the provisions of Code § 19.2-

295.1 that would impede a jury’s ability to “fashion[] a

sentence suitable both to [the] defendant and the offense.”

16
Gilliam v. Commonwealth, 21 Va. App. 519, 524, 465 S.E.2d 592,

595 (1996). For these reasons, I respectfully dissent and

would affirm the judgment of the Court of Appeals and find

that the sentencing information at issue was properly admitted

in the Commonwealth’s case in chief during the penalty phase

of Gillispie’s trial.

17