Wilkins v. Commonwealth
253 Va. 156 (1997)
_______________________________________________________________
VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond, on Friday, the 28th day of
February, 1997.
Donald L. Wilkins, Appellant,
against Record No. 961235
Court of Appeals No. 1242-95-4
Commonwealth of Virginia, Appellee.
Upon an appeal from a judgment rendered by the Court
of Appeals of Virginia on the 4th day of December, 1995.
Upon consideration of the record, the briefs, and argument of
counsel, the Court is of opinion that no error exists in the
judgment of the Court of Appeals of Virginia.
On March 31, 1995, a jury in the Circuit Court for the County
of Fauquier returned a verdict convicting Donald L. Wilkins of
attempted possession of phencyclidine, a controlled substance, in
violation of Code § 18.2-257. As appears from an order entered by
the trial court, "[w]hereupon the jurors received further evidence
and were instructed by the Court as to punishment and heard evidence
and argument of counsel and were sent back to their room to consider
their verdict as to punishment." Authorized by the statute to
impose a sentence upon conviction of "not less than one nor more
than ten years," the jury returned its second verdict fixing the
penalty at five years in the penitentiary. Upon consideration of
the report of a probation officer, the trial court confirmed the two
verdicts and entered final judgment on May 30, 1995.
In the course of argument made at the penalty phase of the
trial, the prosecutor told the jurors that "you have an opportunity
as the conscience of this community to deal with this person" and
that "in considering what is the appropriate verdict, you can indeed
send the message to Mr. Wilkins . . . [and] to people similarly
situated to Mr. Wilkins that we will not tolerate the sale and
purchase of drugs in this county." Wilkins objected to those
statements and, in a petition for appeal addressed to the Court of
Appeals of Virginia, challenged the trial court's ruling denying his
motion for a mistrial.
Holding that "the argument was proper," the Court of Appeals of
Virginia denied the petition, and this Court awarded Wilkins an
appeal limited to consideration of that holding.
Wilkins notes on brief that "[n]othing should be done or
permitted to . . . obscure the minds of the jurors on the question
of whether or not [the accused] is guilty of the offense charged."
That rule is fully supported by the precedents. This Court, upon
finding a manifest probability that a deterrence argument by a
prosecutor had been a contributing cause of the defendant's
conviction, has consistently reversed the judgment and remanded the
case to the trial court. See e.g., Kitze v. Commonwealth, 246 Va.
283, 435 S.E.2d 583 (1993); Hutchins v. Commonwealth, 220 Va. 17,
255 S.E.2d 459 (1979).
As an element of its rationale in Hutchins, this Court
emphasized the need to avoid confusion between "the use of
punishment and conviction for deterrent purposes," 220 Va. at 20-21,
255 S.E.2d at 461, and, citing Hutchins in Payne v. Commonwealth,
233 Va. 460, 468, 357 S.E.2d 500, 505, cert. denied, 484 U.S. 933
(1987), the Court explained that "while considerations of deterrence
should not be the basis for a finding of guilt of the offense, such
considerations may be argued in connection with the punishment to be
assessed for the crime."
Here, the deterrence argument in issue was made in the penalty
phase of the bifurcated trial. The Court finds no merit in the
assignment of error, and the judgment of the Court of Appeals of
Virginia is affirmed.
Justices Stephenson and Koontz took no part in the
consideration or disposition of this appeal.
The defendant will pay to the Commonwealth thirty dollars in
damages.
It is ordered that the said circuit court allow counsel for the
appellant a fee of $725 for services rendered the appellant on this
appeal, in addition to counsel's costs and necessary direct out-of-
pocket expenses.
The Commonwealth shall recover of the appellant the amount paid
court-appointed counsel to represent him in this proceeding,
counsel's costs and necessary direct out-of-pocket expenses, and the
fees and costs to be assessed by the clerk of this Court and the
clerks of the courts below.
This order shall be certified to the Court of Appeals of
Virginia and the Circuit Court of the County of Fauquier and shall
be published in the Virginia Reports.
A Copy,
Teste:
David B. Beach, Clerk
Costs due the Commonwealth
by appellant in Supreme
Court of Virginia:
Attorney's fee $925.00 plus costs and expenses