PRESENT: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Stephenson, S.J.
DAVID LEE HILLS
OPINION BY
v. Record No. 010193 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
November 2, 2001
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In Fishback v. Commonwealth, 260 Va. 104, 115, 532 S.E.2d
629, 634 (2000), we established a new rule requiring trial
courts to instruct juries on the abolition of parole for non-
capital felony offenses committed on and after January 1, 1995.
In this appeal, we determine (1) whether the appropriate remedy
for a Fishback error is a remand of the case for a new
sentencing hearing only, and (2) whether Fishback requires a
trial court to permit voir dire examination of prospective
jurors concerning their knowledge of parole ineligibility.
I
In a bifurcated jury trial in the Circuit Court of Fairfax
County, David Lee Hills was convicted of raping Patricia
McKendry on November 7, 1997. The jury fixed Hills' punishment
at six years in prison. Thereafter, the trial court sentenced
Hills in accordance with the jury's verdict.
The Court of Appeals awarded Hills an appeal, and, on May
23, 2000, a panel of the Court affirmed the trial court's
judgment. Hills v. Commonwealth, 32 Va. App. 479, 528 S.E.2d
730 (2000). On July 18, 2000, a panel of the Court granted
Hills' motion for a rehearing, which included issues raised by
our decision in Fishback. On September 26, 2000, the panel of
the Court issued a new opinion, reversing the trial court's
judgment in part and remanding the case to the trial court for
resentencing. Hills v. Commonwealth, 33 Va. App. 442, 534
S.E.2d 337 (2000).
We awarded Hills this appeal to consider his assignment of
error claiming that the Court of Appeals erred "in remanding the
case to the trial court only for resentencing instead of a new
trial." We also agreed to consider the Commonwealth's
assignment of cross-error claiming that the Court of Appeals
erred "by holding that Fishback . . . requires the trial judge
to allow voir dire examination of prospective jurors concerning
their understanding of the status of parole in Virginia."
II
The facts relevant to the issues presented in this appeal
are undisputed and may be briefly stated. During jury voir
dire, Hills' counsel attempted to ask potential jurors whether
they had "any knowledge or expectation as to the parole rules in
Virginia." The trial court sustained the Commonwealth's
objection to the question.
During the jury's deliberations in the penalty phase of the
trial, the jury submitted the following written question to the
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trial court: "Is parole available to the person convicted of
the crime of rape in the Commonwealth of Virginia?" Hills'
counsel requested that the jury be instructed that "parole is no
longer available in Virginia, that a person serves a minimum of
eighty-five percent of any sentence which is imposed." The
trial court refused to grant the requested instruction; instead,
the court told the jury that "[y]ou should not concern yourself
with this. You should sentence in accordance with the
instruction given to you." Thereafter, the jury returned its
verdict, fixing Hills' punishment at six years in prison.
III
A
In 1994, the General Assembly enacted Code § 53.1-165.1,
which provides, in pertinent part, 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." As a consequence, on June 9, 2000, in Fishback,
we established the new rule and directed that "henceforth juries
shall be instructed, as a matter of law, on the abolition of
parole for non-capital felony offenses committed on or after
January 1, 1995." 260 Va. at 115, 532 S.E.2d at 634. We also
held that this new rule of criminal procedure "is limited
prospectively to those cases not yet final" on June 9, 2000, the
date of the decision. Id. at 116, 532 S.E.2d at 634.
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In the present case, Hills committed the felony offense
after January 1, 1995, and his case was not final when Fishback
was decided. Therefore, the rule established in Fishback
applies, and the Court of Appeals correctly held that the trial
court erred in failing to instruct the jury in the penalty phase
of the trial that parole had been abolished.
B
Hills contends that, although the Court of Appeals
correctly held that Fishback requires a reversal of the trial
court's judgment, the Court erred in failing to remand the case
to the trial court for a new trial. He asserts that he is
entitled to a new trial "because all of the evidence introduced
at trial is relevant to sentencing."
To decide this issue, we look first to Code § 19.2-295.1,
which provides, in pertinent part, that, "[i]f [a] sentence on
appeal is subsequently set aside or found invalid solely due to
an error in the sentencing proceeding, the court shall impanel a
different jury to ascertain punishment." In the present case,
the error in question occurred in the sentencing proceeding;
therefore, the statute requires only a new sentencing hearing.
Additionally, we previously have remanded cases limited to
a new sentencing hearing for an error in the penalty phase of a
bifurcated trial. Indeed, that was the precise remedy mandated
in Fishback. Id. at 117, 532 S.E.2d at 635. We also ordered
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that remedy in Yarbrough v. Commonwealth, 258 Va. 347, 375, 519
S.E.2d 602, 617 (1999), a capital-murder case.
As previously noted, Hills asserts that all evidence at
trial is relevant to sentencing and that much of the evidence in
the guilt-determination phase of the trial would not be
admissible at a new sentencing hearing. We have held, however,
that, at a resentencing hearing,
the physical evidence admitted and marked as exhibits
in the first trial may be considered, so much of the
transcript of the testimony and proceedings in the
first trial as may be necessary to show the nature of
the offense charged and the circumstances under which
it was committed may be read in open court, and such
additional evidence as may be competent and relevant
to the issue of punishment may be adduced.
Huggins v. Commonwealth, 213 Va. 327, 329, 191 S.E.2d 734, 736
(1972). Thus, we conclude that the Court of Appeals correctly
remanded Hills' case to the trial court only for a new
sentencing hearing.
IV
In its assignment of cross-error, the Commonwealth contends
that the Court of Appeals erred in holding that Fishback
requires a trial court to permit voir dire examination of
prospective jurors concerning their understanding of the status
of parole. We agree.
We decided this very issue in Lilly v. Commonwealth, 255
Va. 558, 567, 499 S.E.2d 522, 529-30 (1998), rev'd on other
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grounds, 527 U.S. 116 (1999). In that case, Lilly claimed that
the trial court erred in not allowing him to question
prospective jurors on the matter of parole ineligibility of
defendants who are given life sentences in capital-murder cases.
Lilly asserted that he was entitled to so question prospective
jurors because the Supreme Court, in Simmons v. South Carolina,
512 U.S. 154, 162, 169 (1994), mandated that trial courts
instruct juries on parole ineligibility in capital-murder cases.
In rejecting Lilly's contention, we said the following:
The clear import of Simmons is that, once a
defendant is convicted of a capital crime, he has, as
a matter of due process, the right to have the jury
informed of his ineligibility for parole in order that
this factor may be weighed by the jury against the
finding of his further dangerousness to society.
Nothing in Simmons even remotely suggests that
knowledge of parole ineligibility rules and
exploration of potential jurors' opinions on that
subject would be a proper topic for voir dire. The
probable confusion and prejudice such an inquiry would
cause in the minds of jurors is self-evident.
255 Va. at 567, 499 S.E.2d at 529-30 (footnote omitted).
We adhere to our ruling in Lilly and hold that voir dire
questions about parole are improper and are not to be allowed by
trial courts. Thus, in the present case, the Court of Appeals
erred in ruling that Fishback required the trial court to permit
such voir dire questioning of prospective jurors.
V
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In sum, we will reverse that part of the judgment of the
Court of Appeals requiring voir dire questioning of prospective
jurors concerning their knowledge of parole ineligibility. We
will affirm that part of the judgment of the Court of Appeals
remanding this case to the trial court for only a new sentencing
hearing, and we will remand the case to the Court of Appeals
with directions that it, in turn, remand the case to the trial
court for a new sentencing hearing.
Affirmed in part,
reversed in part,
and remanded.
JUSTICE KINSER concurring.
I agree with the conclusion of the majority opinion with
regard to the two limited issues presented in this appeal.
Nevertheless, I write separately to reiterate the views that I
expressed in Fishback v. Commonwealth, 260 Va. 104, 118-22, 532
S.E.2d 629, 635-38 (2000) (Kinser, J., dissenting). Although I
continue to disagree with the result in Fishback, I cannot say
that the decision was a “flagrant error or mistake.” Selected
Risks Ins. Co. v. Dean, 233 Va. 260, 265, 355 S.E.2d 579, 581
(1987); accord Nelson v. Warden, 262 Va. 276, 280, 552 S.E.2d
73, 75 (2001). Thus, in accordance with the principles of stare
decisis, I am bound by the decision in Fishback.
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