Present: All the Justices
COMMONWEALTH OF VIRGINIA
v. Record No. 980187
VERNON LEROY SHIFFLETT
OPINION BY JUSTICE A. CHRISTIAN COMPTON
January 8, 1999
COMMONWEALTH OF VIRGINIA
v. Record No. 980188
EMMITT LARON TAYLOR
FROM THE COURT OF APPEALS OF VIRGINIA
These two criminal appeals, involving findings of guilty in
noncapital felony prosecutions, present a common issue: Did the
Court of Appeals of Virginia err in reversing the respective
circuit courts, which limited evidence the defendants sought to
introduce during the sentencing proceedings conducted as part of
the bifurcated jury trials?
Code § 19.2-295.1 sets forth the procedure in such cases.
It provides, in part, that after the prosecution has had the
opportunity to present evidence of the defendant's prior
convictions, "the defendant may introduce relevant, admissible
evidence related to punishment." We are concerned here with the
meaning of the statutory term "relevant."
At the outset, we issue a caveat. We shall adhere strictly
to the content of the records made in the respective trial
courts, a practice not followed in either of these cases by the
Court of Appeals, as we shall demonstrate.
In one case, appellee Vernon Leroy Shifflett was found
guilty by a jury in the Circuit Court of Albemarle County of
operating a motor vehicle on a public highway in January 1995
after having been adjudicated an habitual offender, it being a
second or subsequent offense.
Prior to commencement of the sentencing proceeding, the
trial court and counsel discussed "what's relevant" with
reference to punishment. The attorney for the defendant
represented to the court, "I do intend to put on mitigating
testimony about his employment, his family responsibilities."
Responding, the court mentioned "factors" that may be
relevant to punishment, "range of punishment established by
legislature, injury to the victim, use of weapon, extent of
offender's participation, the offense, offender's motive in
committing the offense, prior record and rehabilitative efforts,
drug and alcohol use, age, health and education." The
prosecutor then stated, "Why he did it . . . is relevant . . . .
But not his job responsibilities and his family responsibilities
and the fact that impliedly the common law wife and the children
are going to have to make it without him for a while. That has
no relevance to it." Defense counsel responded, "I think it
does, I think it does."
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The trial judge then ruled he would limit the defendant's
evidence to the applicable factors previously mentioned and
said, "one of them isn't how the family is affected by it." The
prosecutor and the court then agreed with defense counsel that
"defendant's motive for committing the offense" was admissible.
Defendant's girlfriend, and mother of his two small children,
claimed she had become ill while driving defendant home from
work, necessitating defendant becoming the operator of the
vehicle and resulting in his arrest.
Continuing, defense counsel argued to the trial court that
he wished to present evidence of the girlfriend's participation
in the offense "and what happened that day and the mitigating
factor that led him to be behind the wheel [and] testimony from
her about his support of the children, his income -- the income
that the family has that he brings in and support for her
position that she did have those spells and the doctor is here
now to testify on the treatment that she's had, to verify what
she says and that goes to why he took the wheel, the offender's
motive for committing the offense." Responding, the court
stated that evidence of defendant's "motive to commit the
offense" would be admissible.
The prosecutor then stated he did not object to testimony
from the girlfriend's physician but said, "I do object to her
getting on the stand and saying I only make so much money and I
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have to take care of the kids and all those other things."
Defense counsel answered, "I think that should come in." The
court ruled, "And that's what I'm ruling is not coming in."
During presentation of the evidence during the sentencing
phase, the court adhered to its prior rulings that were based on
defendant's arguments presented to the court. The girlfriend
testified she became dizzy, could no longer operate the vehicle
safely, and was forced to allow the defendant to drive. The
girlfriend's physician testified he had been treating her for
vertigo. The defendant's employer, a painter, testified
defendant worked for him but the trial court refused to allow
testimony about "defendant's present employment," the trial
judge stating he was being consistent with his prior ruling.
After the jury retired to deliberate punishment, defense
counsel stated to the court that "with regard to Mr. Leroy
Shifflett's employment, Your Honor, that was certainly relevant
in terms of where he worked, how he got back and forth to work,
what he made in his employment, credentials and how good a
worker he was. That's certainly all very relevant." The court
responded that "employment" was not among the "factors"
discussed earlier that was relevant to punishment.
The jury fixed defendant's punishment to confinement in the
penitentiary for three years. After the jury was discharged and
before the court sentenced defendant, he presented testimony of
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his employer. He stated that he had employed defendant for four
months, that defendant was an "excellent" worker, that he (the
employer) "need[s]" defendant because he had "a lot of . . .
work lined up in the future," and that defendant had been able
to find persons to drive him to work. The court sentenced
defendant in accordance with the verdict in a September 1995
judgment order.
Upon appeal, a three-judge panel of the Court of Appeals,
one judge dissenting, affirmed the conviction and sentence.
Shifflett v. Commonwealth, 24 Va. App. 538, 484 S.E.2d 134
(1997). The court stated that defendant contended on appeal
"the trial court erred in preventing him from eliciting
testimony at the sentencing phase of his trial concerning the
impact of his incarceration upon his family and his employment."
Id. at 540, 484 S.E.2d at 135 (emphasis added). The court held
the trial court did not abuse its discretion in refusing to
allow defendant "to elicit testimony from his girlfriend and
employer concerning the financial impact his incarceration would
have on his family and employer." Id. at 543, 484 S.E.2d at
136. That testimony, the court said, was "not relevant evidence
related to punishment for consideration by the jury under
Virginia law." Id., 484 S.E.2d at 137.
Upon rehearing en banc, the Court of Appeals, in a 6-3
decision, reversed the case and remanded it for a new sentencing
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proceeding. Shifflett v. Commonwealth, 26 Va. App. 254, 261,
494 S.E.2d 163, 167 (1997). The court stated that the
"employer's testimony regarding Shifflett's success at work and
his efforts to maintain a commuting schedule that obviated his
need to drive reflects on Shifflett's 'character and
propensities,'" which are relevant to sentencing. Id. at 260,
494 S.E.2d at 166. The court further stated that the
girlfriend's testimony "was not offered merely to prove the
family's apparent need for his income. Her testimony would have
proved that Shifflett was a responsible father who worked
earnestly to provide for his children. Certainly, evidence that
a defendant has contributed positively to his family situation
is a relevant circumstance." Id. at 261, 494 S.E.2d at 166. We
awarded the Commonwealth this appeal from that judgment of the
Court of Appeals.
In the other case, appellee Emmitt Laron Taylor was found
guilty by a jury in the Circuit Court of Arlington County of
conspiring to distribute five or more pounds of marijuana,
possessing with the intent to distribute the same amount of the
drug, and transporting the same amount of the drug into Virginia
with the intent to sell or distribute it. The defendant was
arrested on October 10, 1995 on the premises of Washington
National Airport.
6
During the sentencing proceeding, the Commonwealth
presented evidence that defendant, 22 years of age at the time
of the February 1996 trial, had been convicted in California in
1990 of armed robbery and in 1994 of a violation of California's
narcotics laws.
Following presentation of this evidence, the defendant took
the witness stand and was asked by his attorney to "tell the
jury about your family." After defendant stated he had an older
brother, an older sister, and a younger brother, and that the
younger brother had been "killed" because "they had a grudge
against him," the trial court sustained the prosecutor's
objection to the testimony. A discussion followed among the
court and counsel about what evidence was relevant to punishment
under the applicable statute.
Defense counsel argued that "who Emmitt Taylor is is
certainly a relevant issue." Responding to the court's
question, "What do you propose to have him testify to," defense
counsel responded, "About his life." The court interjected,
"Life story?" and counsel responded, "Yes."
The court ruled that evidence "just relating the whole
story" was inadmissible and not relevant to sentencing. After
defense counsel said, "Note my objection, Your Honor," the court
stated: "Now, the statute that permits relevant and admissible
evidence from the Defendant on the sentencing phase of the case
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is limited to that, and I don't want to limit you anymore than
that; but it does not permit just a complete open door telling
of everything." Defense counsel responded, "All right, Your
Honor."
The sentencing phase continued with the defendant
testifying that he was 17 years of age at the time of the armed
robbery conviction and that he pled guilty to the narcotics
charge because he was told it "was a juvenile matter and would
be sealed." Responding to further questions, defendant
testified that he had completed the 11th grade in school, and
that he had worked as a gardener, a cook, and at a fish market.
The jury fixed defendant's punishment to confinement in the
penitentiary for 18 years on each of the conspiracy and
distribution charges and to confinement for 20 years and an
$80,000 fine on the transporting charge. After the jury was
discharged, the trial court granted defendant's request for a
presentence report.
Six days after the jury had been discharged, the trial
court granted defendant's request, made the day after trial, to
have inserted in the record a proffer of testimony. Stating
that the trial court's ruling on evidence dealing with
punishment was "overly narrow," defense counsel offered "some
proof of what my client would have testified to."
8
During the post-trial hearing, defendant testified, for
example, that when he was age nine, his father was robbed and
killed; that he had no "male role models growing up"; that his
mother is a heavy drug user; that his younger half-brother was
killed by gunshots after an argument with his assailants; that
he had no fixed home prior to coming to Virginia; and that he
received no "instruction as to discipline" from his family.
Following argument of counsel, the trial court made two
rulings in denying what it treated as a motion to "reopen the
case" to permit presentation of additional evidence. First, the
court ruled that the proffer was untimely. The court stated
that "the proffer should be made at the moment of the exclusion
in order to give the trial court the opportunity to admit the
evidence in the event its ruling to exclude would be deemed to
be in error." The court continued: "However, here, the motion
that is being made now is not timely. And that is one of the
reasons . . . assigned for its denial." Second, the trial court
ruled the evidence presented in the proffer was not relevant to
sentencing.
In judgments of conviction entered in June 1996, the trial
court suspended execution of the conspiracy and distribution
sentences and imposed the transporting sentence.
Upon appeal, a panel of the Court of Appeals, in an
unpublished opinion dated the same day as the Shifflett en banc
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opinion, reversed the trial court judgments and remanded for a
resentencing hearing. Reciting only the facts presented during
the proffer, ruled untimely by the trial court, the Court of
Appeals said the case was controlled by the Shifflett en banc
decision. The court held: "The excluded evidence in this case
clearly was relevant to appellant's background and family
situation at the time of the earlier conviction and was also
probative of his current situation." We awarded the
Commonwealth this appeal from that judgment of the Court of
Appeals.
The crucial question in these appeals is what did the
General Assembly mean when it provided in Code § 19.2-295.1 that
during the punishment phase of a bifurcated noncapital jury
trial, where the defendant has been found guilty, "the defendant
may introduce relevant . . . evidence related to punishment"?
This statute was enacted in 1994 when Virginia changed the
procedure in such cases from unitary to bifurcated trials. See
Acts 1994, ch. 828, 860, 881.
The law extant in the Commonwealth in 1994 relating to
punishment in felony cases included the provisions of Code
§ 19.2-264.4(B), dealing with capital murder cases, and the
decision in Coppola v. Commonwealth, 220 Va. 243, 257 S.E.2d 797
(1979), interpreting that statute. When Coppola was decided, as
now, the statute provided that in capital murder cases tried by
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jury, "evidence may be presented as to any matter which the
court deems relevant to sentence." The statute goes on to
provide that evidence that may be "admissible, subject to the
rules of evidence governing admissibility," may include certain
facts. Those are "circumstances surrounding the offense, the
history and background of the defendant, and any other facts in
mitigation of the offense."
Continuing, the statute provided that facts in mitigation
may include, but shall not be limited to, the following: "(i)
The defendant has no significant history of prior criminal
activity, or (ii) the capital felony was committed while the
defendant was under the influence of extreme mental or emotional
disturbance or (iii) the victim was a participant in the
defendant's conduct or consented to the act, or (iv) at the time
of the commission of the capital felony, the capacity of the
defendant to appreciate the criminality of his conduct or to
conform his conduct to the requirements of law was significantly
impaired; or (v) the age of the defendant at the time of the
commission of the capital offense."
In Coppola, a capital murder prosecution tried by jury, the
defendant complained the trial court erroneously excluded the
proffered testimony of his former wife about the adverse effect
upon their two young sons of defendant's arrest and prosecution.
In finding no error, the Court said "discretion is vested in the
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trial court to determine, subject to the rules of evidence
governing admissibility, the evidence which may be adduced in
mitigation of the offense." Coppola, 220 Va. at 253, 257 S.E.2d
at 804.
The Court stated that the proffered evidence "is irrelevant
on the issue of mitigation. It is not analogous to any of the
evidence specifically approved in the statute. The kind of
evidence therein contemplated bears upon the record of the
defendant and the atrociousness of his crime. Evidence of a
good previous record, and extenuating circumstances tending to
explain, but not excuse, his commission of the crime, is
admissible mitigating evidence . . . . But the effect of his
incarceration upon relatives is not a mitigating circumstance
for the jury to consider." Id. at 253-54, 257 S.E.2d at 804.
Against this background, which delineated the types of
factors considered "relevant" in capital cases, the General
Assembly crafted the statute in issue dealing with noncapital
cases. The same standard, relevant admissible evidence related
to punishment, was included. 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.
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But this is not a one-way street extending only in the
defendant's direction. The statute also permits the
Commonwealth to introduce "relevant, admissible evidence in
rebuttal" to that offered by the defendant.
Therefore, we hold that a trial court, in determining what
evidence is relevant to punishment under Code § 19.2-295.1 may
be guided in the exercise of its discretion, subject to the
rules of evidence governing admissibility, by the factors set
forth in Code § 19.2-264.4(B), as interpreted in Coppola. The
kind of evidence contemplated by § 19.2-295.1 bears upon the
record of the defendant and the nature of his crime. Evidence
of a good previous record, and extenuating circumstances tending
to explain, but not excuse, the commission of the noncapital
crime is admissible mitigating evidence. * And, a trial court's
discretionary ruling on this issue should not be disturbed on
appeal absent a clear abuse of discretion. Coe v. Commonwealth,
231 Va. 83, 87, 340 S.E.2d 820, 823 (1986).
*
In support of his contention that § 19.2-295.1 should be
interpreted in a restrictive manner, the Attorney General has
advised us that the 1995 General Assembly refused to enact House
Bill No. 2212, which would have added language to the statute
specifically permitting introduction of evidence about "the
history and background of the defendant and any other facts in
mitigation or aggravation of the offense." We are not persuaded
by this information; the legislature may well have determined
that such amendment was unnecessary because the statutory and
case law already so provided.
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We shall now apply the foregoing principles to the present
cases. Initially, we observe that an appellate court ought to
decide cases based on the record made in the court below. The
appellate court, in fairness to the trial judge, should not
recast the evidence and put a different twist on a question that
is at odds with the question presented to the trial court.
Shifflett is an example of this incorrect technique. The
issue presented to the trial court by the defendant, as we have
demonstrated in our summary of the record, was whether he was
entitled to adduce testimony concerning the impact of his
incarceration upon his family and his employment. Yet, the
Court of Appeals said the girlfriend's testimony was offered to
prove "that Shifflett was a responsible father who worked
earnestly to provide for his children." Shifflett, 26 Va. App.
at 261, 494 S.E.2d at 166. Also, the Court of Appeals said the
employer's testimony was offered to show defendant's "character
and propensities." Id. at 260, 494 S.E.2d at 166. Neither of
these bases for admission of the girlfriend's and the employer's
testimony was urged upon the trial court prior to submission of
the case to the jury to assess punishment, and we shall not use
those grounds to decide this appeal.
Instead, we hold that the trial court, consistent with
Coppola, did not clearly abuse its discretion by refusing to
allow evidence concerning the impact of defendant's
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incarceration upon his family and his employment, and the Court
of Appeals erred in ruling to the contrary.
The Court of Appeals' decision in Taylor presents a similar
problem. It addressed exclusively the facts presented in the
proffer, which the trial court explicitly refused to consider
because it was untimely. The fact that the trial court, in an
alternative ruling, may have erred by deciding the proffered
material was not relevant is beside the point. The record made
in the trial court, before defendant's sentencing was presented
to the jury, was a request by defendant to adduce evidence about
his "life story" that amounted to "a complete open door telling
of everything."
Yet, the Court of Appeals did not address this request made
by defendant before the jury retired. Rather, the appellate
court said the proffered evidence "clearly was relevant to
appellant's background and family situation." We shall not use
the proffered evidence to decide this appeal.
We cannot say that the trial court clearly abused its
discretion by refusing to admit evidence about the defendant's
life history when the defendant made a broad, unrestricted, and
nonparticularized request for "just relating the whole story"
and for "just a complete open door telling of everything," and
the Court of Appeals erred in ruling to the contrary.
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Consequently, we will reverse the judgment of the Court of
Appeals in Shifflett, and will enter final judgment here
reinstating the sentencing order of the Circuit Court of
Albemarle County. Likewise, we will reverse the judgment of the
Court of Appeals in Taylor, and will enter final judgment here
reinstating the sentencing orders of the Circuit Court of
Arlington County.
Record No. 980187 — Reversed and final judgment.
Record No. 980188 — Reversed and final judgment.
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