PRESENT: All the Justices
COMMONWEALTH OF VIRGINIA
v. Record No. 010883 OPINION BY JUSTICE BARBARA MILANO KEENAN
January 11, 2002
TIMOTHY JERMAN
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the Court of Appeals
erred when it reversed and vacated a defendant's sentence on the
ground that the circuit court did not instruct the jury on the
abolition of parole pursuant to Fishback v. Commonwealth, 260
Va. 104, 532 S.E.2d 629 (2000).
Timothy Jerman was indicted for murder, in violation of
Code §§ 18.2-32 and –40, and for abduction, in violation of Code
§ 18.2-47. He was convicted in the Circuit Court of Fairfax
County of second degree murder and abduction. During the
penalty phase of the trial, Jerman did not request a jury
instruction on the abolition of parole. The jury submitted two
questions to the court during its sentencing deliberations:
At what point in a sentence will the defendant be
subject to parole? In other words, what are the
parameters for parole eligibility?
Will the sentences for the two counts be served
concurrently? And whose decision is it?
By agreement of the court, the Commonwealth's attorney, and
counsel for Jerman, the court submitted the following answer to
the jury:
You have found the defendant guilty of murder in the
second degree and abduction. You should impose such
punishment as you feel is just under the evidence and
within the instructions of the Court. You are not to
concern yourselves with what might happen afterwards.
This instruction accurately stated the law in effect on the date
of trial. The jury fixed Jerman's punishment at five years'
imprisonment for second degree murder and at ten years'
imprisonment for abduction.
At the sentencing hearing, Jerman's counsel did not argue
that the circuit court failed to respond properly to the jury's
questions. Instead, counsel asserted that the jury's concern
whether Jerman would be eligible for parole prejudiced its
sentencing deliberations. Counsel contended that the jury's
questions demonstrated "clearly that the jury thought or felt
that [Jerman] was deserving of much less than the maximum
sentences in this case and deserving of less than the 15 years
because they assumed parole." The circuit court sentenced
Jerman in accordance with the jury verdict to a total of 15
years' imprisonment.
Two days later, Jerman filed a motion to set aside the
verdict on his abduction conviction. He noted that as of his
trial date, the rule in Coward v. Commonwealth, 164 Va. 639,
646, 178 S.E. 797, 800 (1935), required that a jury not be
informed of post-sentencing considerations that could affect the
length of a sentence that a defendant serves. Jerman asked the
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circuit court to apply the holding in Hartigan v. Commonwealth,
31 Va. App. 243, 522 S.E.2d 406 (1999), which was decided after
his trial but before his sentencing. In Hartigan, the Court of
Appeals held that "when evidence of prior sentences may lead the
jury to speculate that parole is still available to the
defendant, a trial judge is required to instruct the jury that
the defendant, if convicted, will be ineligible for parole."
Id. at 258, 522 S.E.2d at 413.
In response to Jerman's motion, the Commonwealth argued,
among other things, that Jerman waived his objection to the
circuit court's instruction stating the rule in Coward because
he agreed that the instruction should be given. The circuit
court denied Jerman's motion, concluding that Hartigan was
inapplicable because Jerman did not have a prior criminal record
and the Commonwealth did not make any statements concerning
parole eligibility to the jury.
Jerman appealed from his abduction conviction to the Court
of Appeals, which vacated his sentence and remanded the case to
the circuit court for a new sentencing proceeding. Jerman v.
Commonwealth, 34 Va. App. 323, 328, 541 S.E.2d 307, 309 (2001).
The Court of Appeals held that the circuit court erred in
failing to instruct the jury on the abolition of parole in
accordance with our decision in Fishback. Id.
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In Fishback, we held that juries shall be instructed on the
abolition of parole for non-capital felony offenses committed on
or after January 1, 1995, and that this new rule of criminal
procedure is limited to cases not yet final on June 9, 2000.
260 Va. at 115-16, 532 S.E.2d at 634. The Court of Appeals
concluded that the decision in Fishback required that Jerman be
awarded a new sentencing hearing on his abduction conviction
because his appeal of that conviction was not yet final on June
9, 2000. 34 Va. App at 325-26, 328, 541 S.E.2d at 308-09.
In applying the decision in Fishback, the Court of Appeals
reasoned:
In this case, the question propounded by the jury and
the response given by the court without objection from
[Jerman] are factually similar to those in Fishback.
The sole difference is that [Jerman], in the instant
case, did not request an instruction regarding the
abolition of parole until post-trial motions.
However, [Jerman's] failure to request an instruction
does not end our analysis. Fishback clearly states
that any case "not yet final," i.e., still in the
breast of a proper trial court or appellate process,
is subject to the new instruction requirements. . . .
[The jury's] question clearly indicated to the trial
court that the jury assumed that parole would be
available to [Jerman]. This is the precise instance
the [Virginia] Supreme Court addressed by stating that
the jury required instruction from the court as to the
"new rule" of law in pending cases. The trial court's
response in this case failed to fulfill the
requirement of Fishback because it left the jury with
the belief that parole would be available. Even
though [Jerman] failed to object or raise the issue
during trial, the trial court had an affirmative duty
to properly instruct the jury about the matter because
they evidenced a need for instruction by posing the
question to the court.
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34 Va. App. at 327-28, 541 S.E.2d at 308-09. The Commonwealth
appeals from the Court of Appeals' judgment.
The Commonwealth argues that Jerman's claim is procedurally
barred under Rule 5:25 because he did not object to the answer
that the circuit court gave to the jury in response to its
question concerning parole. The Commonwealth asserts that this
Court generally has barred challenges on appeal to jury
instructions when defendants have not timely objected to those
instructions at trial.
In response, Jerman argues that the Court of Appeals
correctly concluded that the rule in Fishback applied to his
case because his appeal was "not yet final" when Fishback was
decided on June 9, 2000. He contends that his failure to raise
a timely objection at trial did not procedurally bar appellate
review of the instruction at issue because, at the time of his
trial, the Coward rule was still in effect. Jerman asserts that
his motion to set aside the verdict properly preserved the issue
because he made the motion after the Court of Appeals decided
Hartigan, during the period in which the circuit court retained
jurisdiction over his case. We disagree with Jerman's
arguments.
In Fishback, unlike the circumstances in the present case,
the defendant asked the circuit court to instruct the jury on
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the abolition of parole even though the rule in Coward was still
in effect. 260 Va. at 109, 532 S.E.2d at 630. Thus, the
circuit court in Fishback had the opportunity to consider during
trial whether to instruct the jury on the recent statutory
changes concerning parole. Although the instructions that the
defendant proffered did not accurately reflect the statutory
changes, we nevertheless concluded that the circuit court was
required to correct the instructions and give them in their
accurate form. Id. at 117, 532 S.E.2d at 635.
This holding was based on an established principle that we
explained in Fishback:
We adhere to the rule that the trial court is not
required to amend or correct an erroneous instruction,
but the rule is subject to the limitation that when
the principle of law is materially vital to a
defendant in a criminal case, it is reversible error
for the trial court to refuse a defective instruction
instead of correcting it and giving it in the proper
form.
Id. (quoting Whaley v. Commonwealth, 214 Va. 353, 355-56, 200
S.E.2d 556, 558 (1973)).
In contrast, a circuit court ordinarily does not have an
affirmative duty to give a jury instruction on a particular
legal principle when a criminal defendant fails to request that
the jury be instructed on that principle. We have regularly
applied this rule in criminal cases. For example, in Cherrix v.
Commonwealth, 257 Va. 292, 310-11, 513 S.E.2d 642, 654, cert.
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denied, 528 U.S. 873 (1999), we were presented with a jury
instruction issue that arose in a procedural posture similar to
that in the present case. The defendant in Cherrix did not
request a jury instruction concerning parole eligibility and,
during its deliberations, the jury asked the court whether a
life sentence would include the possibility of parole. The
defendant agreed that the circuit court should instruct the jury
that it was "to have no concern with parole." Id. at 311, 513
S.E.2d at 654.
We rejected the defendant's attempt to challenge on appeal
the circuit court's response to the jury's question. We stated
that the defendant's failure to state a timely objection to the
court's instruction or to offer an alternate instruction
"precludes us from addressing the merits of [that] assignment of
error." 257 Va. at 312, 513 S.E.2d at 654.
The consistent application of Rule 5:25 advances the Rule's
purpose of avoiding unnecessary reversals and retrials. See
Reid v. Boyle, 259 Va. 356, 372, 527 S.E.2d 137, 146 (2000);
Buck v. Jordan, 256 Va. 535, 545-46, 508 S.E.2d 880, 885-86
(1998); Yarborough v. Commonwealth, 247 Va. 215, 221, 441 S.E.2d
342, 345 (1994). We repeatedly have refused to consider
challenges to jury instructions raised for the first time on
appeal. See, e.g., Lenz v. Commonwealth, 261 Va. 451, 467, 544
S.E.2d 299, 308, cert. denied, ___ U.S. ___, 122 S.Ct. 481
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(2001); Breard v. Commonwealth, 248 Va. 68, 83, 445 S.E.2d 670,
679, cert. denied, 513 U.S. 971 (1994), Quesinberry v.
Commonwealth, 241 Va. 364, 380, 402 S.E.2d 218, 228, cert.
denied, 502 U.S. 834 (1991). Thus, we hold that Jerman's
failure to state a timely objection to the circuit court's
instruction bars his present challenge to that instruction.
Rule 5:25.
Our conclusion is not altered by the fact that the rule in
Coward was still in effect on the date of Jerman's trial. The
perceived futility of an objection does not excuse a defendant's
procedural default at trial. See Engle v. Isaac, 456 U.S. 107,
130 (1982); Epperly v. Booker, 235 Va. 35, 44, 366 S.E.2d 62, 67
(1988). Therefore, Jerman's counsel was required to state any
objection to the circuit court's instruction and to ask the
court for any other instruction on the subject that he deemed
necessary.
Finally, we find no merit in Jerman's argument that a
contrary result is required because the new rule in Fishback "is
limited prospectively to those cases not yet final on this
date." 260 Va. at 116, 532 S.E.2d at 634. This directive
provided only that the new rule will not be applied
retroactively to cases already final on direct appeal, and did
not impose any limitation on our application of Rule 5:25. See
Mueller v. Murray, 252 Va. 356, 361, 478 S.E.2d 542, 546 (1996).
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For these reasons, we will reverse the judgment of the
Court of Appeals and reinstate the circuit court's judgment on
the abduction conviction.
Reversed and final judgment.
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