Booker v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Petty, Beales and Huff
Argued at Richmond, Virginia

JOSEPH BOOKER
OPINION BY
v. Record No. 0549-11-2 JUDGE RANDOLPH A. BEALES
APRIL 10, 2012
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF AMELIA COUNTY
George F. Tidey, Judge Designate

Theron L. Marsh for appellant.

Kathleen B. Martin, Senior Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.

Joseph Booker (appellant) was convicted of three counts of distribution of cocaine in

2003 in violation of Code § 18.2-248. After appellant’s sentence was vacated on appeal and the

matter was remanded to the circuit court, a resentencing hearing was held for these convictions

on July 8, 2010. On appeal, appellant argues that the circuit court erred at resentencing by

reading the statement of facts to the resentencing jury, including a description of an April 26,

2003 conversation in that statement of facts. For the following reasons, we agree that the circuit

court erred, and we reverse and remand for resentencing.

I. BACKGROUND

Appellant was tried by a jury in Amelia County Circuit Court in 2003. He was convicted

of three counts of distribution of cocaine in violation of Code § 18.2-248, and sentenced to 12

years in prison on each conviction for a total sentence of 36 years. Appellant’s sentences were

vacated on appeal by the Supreme Court of Virginia, and the case was remanded to the circuit
court for a new sentencing hearing with a new jury. See Booker v. Commonwealth, 276 Va. 37,

661 S.E.2d 461 (2008).

After appellant’s case was remanded for resentencing, he filed a motion to limit the

evidence the Commonwealth could present at the new sentencing hearing. He argued that Code

§ 19.2-295.1 allowed the Commonwealth to present in its case-in-chief at resentencing only the

defendant’s prior criminal history and a victim impact statement. Thus, appellant argued that the

Commonwealth could not present a summary of the evidence that had been heard in the guilt

phase of the trial. The prosecutor argued that he was entitled to show the new sentencing jury

the circumstances of the convictions so that they would not have “to operate in the complete

dark.” The circuit court stated that “the jury cannot go blind” and had “to know what occurred.”

The circuit court directed the Commonwealth to submit a proposed statement of facts and for the

defendant to file a response. The circuit court also ruled that no live witnesses could be used in

the Commonwealth’s case-in-chief at resentencing to present evidence from the guilt phase.

The Commonwealth’s statement of facts described the three drug transactions for which

appellant was convicted and that took place between the defendant and the confidential

informant on April 13, April 26, and May 3, 2003. A fourth incident alluded to in the statement

of facts referred to another drug deal in which appellant indicates that he was cheated out of

some of the money he was to be paid for the drugs. The information on this fourth drug

transaction – for which appellant was never charged – came from a videotape of the April 26,

2003 transaction between appellant and the confidential informant, which had been played for

the jury at the original trial.

The conversation between appellant and the confidential informant from the April 26,

2003 incident that was included in the statement of facts is at issue in appellant’s second

assignment of error; it reads as follows:

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 The confidential informant . . . drove to the . . . residence on
Lodore Road. Booker got into the confidential informant’s
vehicle, drove down the road and back. There was a conversation
between the confidential informant and Mr. Booker wherein
Booker indicated that he was cheated on a drug deal by an
individual. So he had to count the money the confidential
informant gave him. Booker then stated he counted the money
because he was ripped off by this individual.

While expressly not waiving his objection to a summary of facts being given to the jury,

appellant proposed the summary should contain only information about when and where each of

the three cocaine sales occurred, and the amounts of money and cocaine involved. He proposed

an alternative statement of facts that included only that information. Appellant specifically

objected to the Commonwealth including information from the April 26, 2003 incident regarding

a fourth drug sale. Appellant contended that the challenged evidence concerned unadjudicated,

unrelated criminal acts that would not be admissible in the guilt phase of a trial.

The circuit court prepared a statement of facts, which included information taken from

the Commonwealth’s and appellant’s proposed statements of facts. Before the resentencing

hearing began on July 8, 2010, appellant renewed his objection that Code § 19.2-295.1 did not

allow the use of a statement of facts. He objected again to the inclusion of the April 26, 2003

conversation between appellant and the informant.

The circuit court judge read the statement of facts to the jury. The Commonwealth then

introduced appellant’s prior convictions for shooting into an occupied dwelling and assault and

battery. Appellant presented no evidence. The jury was instructed that the sentencing range for

each conviction was five to forty years and a fine of not more than $500,000. Appellant argued

that the minimum five-year sentence on each conviction was appropriate, and the

Commonwealth asked the jury to impose fifteen years on each conviction. The jury sentenced

appellant on the three convictions for distributing cocaine to five years for the first conviction

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(the minimum sentence under the statute), seven years for the second conviction, and eight years

for the third conviction, for a total of twenty years.

II. ANALYSIS

A. Standard of Review

The facts are considered in the light most favorable to the Commonwealth, which

prevailed below. See Giles v. Commonwealth, 277 Va. 369, 373, 672 S.E.2d 879, 882 (2009).

Decisions involving the admission of evidence are reviewed on appeal for abuse of discretion by

the trial court. See Jones v. Commonwealth, 50 Va. App. 437, 445, 650 S.E.2d 859, 863 (2007).

The trial court’s ruling concerning the admissibility of evidence will not be disturbed on appeal

in the absence of an abuse of discretion. Id. at 446, 650 S.E.2d at 863.

As both the Supreme Court of the United States and the Supreme Court of Virginia have

explained, a trial court “‘by definition abuses its discretion when it makes an error of law. . . .

The abuse-of-discretion standard includes review to determine that the discretion was not guided

by erroneous legal conclusions.’” Porter v. Commonwealth, 276 Va. 203, 260, 661 S.E.2d 415,

445 (2008) (quoting Koon v. United States, 518 U.S. 81, 100 (1996)).

B. The Circuit Court’s Abuse of Discretion in Reading the New Statement of Facts,
Including a Summary of the April 26, 2003 Conversation, to the Resentencing Jury

On appeal, appellant argues that the circuit court erred by presenting at resentencing the

statement of facts that included a description of an April 26, 2003 conversation between

appellant and a confidential informant, the summary of which in the statement of facts had not

been presented to the previous sentencing jury. Relying on Code § 19.2-295.1 and the Supreme

Court of Virginia’s interpretation of Code § 19.2-295.1 in Hills v. Commonwealth, 262 Va. 807,

811, 553 S.E.2d 722, 724 (2001), we agree. 1

1
Appellant also argues that Code § 19.2-295.1 permits the Commonwealth to introduce
at a resentencing hearing additional evidence beyond a victim impact statement and the
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 At resentencing, the circuit court judge compiled a statement of facts and read it to the

resentencing jury. The statement of facts was not admitted at the original trial. It was created

entirely by the circuit court judge (with input from the Commonwealth’s attorney and defense

attorney) and entirely for the resentencing. The statement of facts included the circuit court

judge’s summary of an April 26, 2003 incident, in which appellant allegedly sold .380 gram of

cocaine to a confidential informant for $100:

The confidential informant . . . drove to the . . . residence on
Lodore Road. Booker got into the confidential informant’s
vehicle, drove down the road and back. There was a conversation
between the confidential informant and Mr. Booker wherein
Booker indicated that he was cheated on a drug deal by an
individual. So he had to count the money the confidential
informant gave him. Booker then stated he counted the money
because he was ripped off by this individual.

Code § 19.2-295.1 governs sentencing proceedings by the jury after conviction and

states:

In cases of trial by jury, upon a finding that the defendant is guilty
of a felony or a Class 1 misdemeanor, or upon a finding in the trial
de novo of an appealed misdemeanor conviction that the defendant
is guilty of 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 may present any victim impact testimony pursuant
to § 19.2-295.3 and shall present the defendant’s prior criminal
history, including prior convictions and the punishments imposed,
by certified, attested or exemplified copies of the final order,
including adult convictions and juvenile convictions and
adjudications of delinquency. Prior convictions shall include
convictions and adjudications of delinquency under the laws of any
state, the District of Columbia, the United States or its territories.
The Commonwealth shall provide to the defendant 14 days prior to
trial notice of its intention to introduce copies of final orders
evidencing the defendant’s prior criminal history, including prior

defendant’s prior criminal history only as rebuttal evidence after the defendant introduces his or
her own evidence at the resentencing hearing. Because this Court is bound by the Supreme
Court’s holding in Hills and given the basis of our decision here, we need not address this
argument on appeal.

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 convictions and punishments imposed. Such notice shall include
(i) the date of each prior conviction, (ii) the name and jurisdiction
of the court where each prior conviction was had, (iii) each offense
of which he was convicted, and (iv) the punishment imposed.
Prior to commencement of the trial, the Commonwealth shall
provide to the defendant photocopies of certified copies of the final
orders which it intends to introduce at sentencing. After the
Commonwealth has introduced in its case-in-chief of the
sentencing phase such evidence of prior convictions or victim
impact testimony, or both, 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.

“An issue of statutory interpretation is a pure question of law which we review de novo.”

Kozmina v. Commonwealth, 281 Va. 347, 349, 706 S.E.2d 860, 862 (2011) (citing Conyers v.

Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007)).

When the language of a statute is unambiguous, we are bound by
the plain meaning of that language. Furthermore, we must give
effect to the legislature’s intention as expressed by the language
used unless a literal interpretation of the language would result in a
manifest absurdity. If a statute is subject to more than one
interpretation, we must apply the interpretation that will carry out
the legislative intent behind the statute.

Id. at 349-50, 706 S.E.2d at 862 (citations omitted).

Code § 19.2-295.1 is procedural in nature, Lebundum v. Commonwealth, 27 Va. App.

697, 717, 501 S.E.2d 427, 437 (1998), and has been interpreted by the Supreme Court of

Virginia to permit evidence of the circumstances surrounding the offense to be admitted at

resentencing. See Hills, 262 Va. at 811, 553 S.E.2d at 724. Normally, a sentencing jury is very

aware of the circumstances of the offense because those same jurors have heard such evidence

during the guilt phase of the trial. See Sheikh v. Buckingham Corr. Ctr., 264 Va. 558, 566, 570

S.E.2d 785, 789 (2002) (noting that “the evidence and argument that had been presented to the

jury in the guilt phase was still fresh in the jurors’ minds” during the sentencing phase). A

resentencing jury, of course, has not heard any of the evidence presented at trial. In order for a
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resentencing jury to do its job intelligently, it certainly must have before it enough information

so that this newly impaneled jury does not blindly sentence a defendant. The Supreme Court of

Virginia has stated in a different context that a jury must be afforded “the benefit of all

significant and appropriate information” when determining a defendant’s sentence, as “a

properly informed jury ensures a fair trial both to the defendant and the Commonwealth.”

Fishback v. Commonwealth, 260 Va. 104, 113, 532 S.E.2d 629, 632 (2000). As a properly

informed jury is also necessary for resentencing, it is appropriate for a circuit court to permit a

resentencing jury to hear the same evidence, to which the original sentencing jury was privy

through the evidence admitted at trial.

We certainly disagree with the concurring/dissenting opinion’s conclusion that claims we

believe the General Assembly somehow made “a legislative oversight” in drafting Code

§ 19.2-295.1 and that, consequently, we are judicially redrafting the statute to fix that

“oversight.” On the contrary, our decision is based on the plain language of Code § 19.2-295.1.

Interpreting the statute otherwise would be to leave the resentencing jury in the dark on many of

the most basic relevant facts surrounding the case and then expect that jury to impose a fair

sentence, which would essentially “result in a manifest absurdity” – a result that the legislature

clearly did not intend. Kozmina, 281 Va. at 349-50, 706 S.E.2d at 862 (citing Conyers, 273 Va.

at 104, 639 S.E.2d at 178). Furthermore, our decision is bound by the Supreme Court of

Virginia’s interpretation of the statute in Hills, 262 Va. at 811, 553 S.E.2d at 724. See Roane v.

Roane, 12 Va. App. 989, 993, 407 S.E.2d 698, 700 (1991) (noting that we are bound by the

Supreme Court’s decisions).

Indeed, the Supreme Court of Virginia expressly permitted evidence from the guilt phase

of the original trial to be admitted at resentencing in Hills, which states:

At a resentencing hearing “the physical evidence admitted and
marked as exhibits in the first trial may be considered, so much of
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 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.”

262 Va. at 811, 553 S.E.2d at 724 (emphasis added). 2 See Commonwealth v. Shifflett, 257 Va.

34, 43, 510 S.E.2d 232, 236 (1999) 3 (supporting the principle that evidence of the facts and

circumstances surrounding an offense are admissible at resentencing).

In light of the Supreme Court’s express holding in Hills, and the fact that a resentencing

jury needs some overall context from which to make an intelligent decision, it is clear that Code

§ 19.2-295.1 permits at a resentencing hearing evidence from the original trial “as may be

necessary to show the nature of the offense charged and the circumstances under which” the

offense was committed. Hills, 262 Va. at 811, 553 S.E.2d at 724.

However, here we do not have admissible evidence from the original trial. Instead, we

have a statement of facts – which was not admitted at trial and is the result of the circuit court

2
In Hills, the Supreme Court concluded that when looking to Code § 19.2-295.1, Hills
was not entitled to a new trial when an error under Fishback, 260 Va. at 115, 532 S.E.2d at 634,
occurred, i.e. when the trial court failed to instruct the jury on the abolition of parole for
non-capital felony offenses committed on and after January 1, 1995. Hills, 262 Va. at 812, 553
S.E.2d at 725. (Hills had argued he was entitled to a new trial “because all of the evidence
introduced at trial is relevant to sentencing.” Id. at 810, 553 S.E.2d at 724). The Supreme Court
concluded that “the Court of Appeals correctly remanded Hills’ case to the trial court only for a
new sentencing hearing” – instead of a new trial. Id. at 811, 553 S.E.2d at 724.
3
In Shifflett, 257 Va. at 43, 510 S.E.2d at 236, the Supreme Court stated:

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.

Id. (Code § 19.2-264.4 (the capital sentencing statute) expressly provides for the admissibility of
evidence at sentencing regarding “the circumstances surrounding the offense.”).

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judge’s own interpretation of the evidence presented at trial. Absent agreement of the parties,

Hills simply does not permit the reading of a statement of facts to the resentencing jury – when

the original jury did not have before it that same statement of facts. 4 While the Supreme Court

expressly permits the introduction of evidence from the first trial “as may be necessary to show

the nature of the offense charged and the circumstances under which it was committed,” id., we

hold that such evidence must be the same evidence as was presented at trial – unless the parties

and the circuit court agree to a different procedure, which, of course, did not happen here. Here,

Hills permits the admission at resentencing of a transcript of the evidence at trial, a videotape of

the April 26, 2003 incident, and any other evidence that was presented at the original trial.

However, a judge’s own interpretation of that evidence – in the form of a statement of facts

newly created for a resentencing jury – is not admissible at resentencing (absent agreement of the

parties).

III. CONCLUSION

Code § 19.2-295.1 and the Supreme Court of Virginia’s interpretation of Code

§ 19.2-295.1 in Hills do not permit a statement or summary of facts, which had not been

admitted at the original trial, to be admitted at resentencing before an entirely different jury

without the agreement of the parties and the circuit court. Id. Thus, it was an abuse of discretion

for the circuit court judge to admit the statement of facts here by reading it to the resentencing

jury. See Jones, 50 Va. App. at 445, 650 S.E.2d at 863.

The circuit court abused its discretion ‘“when it ma[de] an error of law”’ by admitting the

statement of facts (including the April 26, 2003 incident). Porter, 276 Va. at 260, 661 S.E.2d at

445 (quoting Koon, 518 U.S. at 100). The decision to do so was “guided by [the] erroneous legal

conclusion” that a statement of facts that was not presented at the original trial is admissible at

4
The Court cannot conclude that the circuit court’s error in this manner was harmless
under the facts of this particular case.
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resentencing. Id. As required by Code § 19.2-295.1 and the Supreme Court of Virginia’s

interpretation of Code § 19.2-295.1 in Hills, a resentencing jury can hear evidence “as may be

necessary to show the nature of the offense charged and the circumstances under which it was

committed” only when such evidence has already been presented at the original trial. Hills, 262

Va. at 811, 553 S.E.2d at 724. Therefore, the circuit court judge erred when he read to the

resentencing jury the statement of facts that he had created to describe what occurred at the

original trial but that was, of course, not available to the original jury.

Accordingly, for the foregoing reasons, we reverse and remand to the circuit court for

resentencing consistent with this opinion.

Reversed and remanded.

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Huff, J., concurring, in part, and dissenting, in part.

While I concur in the majority opinion’s reversal and remand for a new sentencing, I

respectfully dissent from the majority’s opinion as to the scope of evidence permitted in a

resentencing hearing on remand. This case of first impression presents the question of whether

the circuit court may provide a statement of facts to a new impaneled jury in a resentencing

hearing under Code § 19.2-295.1.

“An issue of statutory interpretation presents a pure question of law, which we review de

novo on appeal.” Young v. Commonwealth, 273 Va. 528, 533, 643 S.E.2d 491, 493 (2007)

(citations omitted).

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. 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.

Gillespie v. Commonwealth, 272 Va. 753, 757-58, 636 S.E.2d 430, 432 (2006) (citations

omitted) (superseded by statute on other grounds). “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.” Id. at 758, 636 S.E.2d at 432 (citations

omitted). In addition, “courts cannot, by judicial interpretation, add language to a statute that the

General Assembly did not include in its enactment.” Young, 273 Va. at 534, 643 S.E.2d at 494

(citations omitted).

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 . . . 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 may present any
victim impact testimony pursuant to § 19.2-295.3 and shall present
the defendant’s prior criminal history, including prior convictions
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 and the punishments imposed, by certified, attested or exemplified
copies of the final order, including adult convictions and juvenile
convictions and adjudications of delinquency. . . . After the
Commonwealth has introduced in its case-in-chief of the
sentencing phase such evidence of prior convictions or victim
impact testimony, or both, 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.

* * * * * * *

If the sentence imposed pursuant to this section 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, unless the defendant, the attorney for the
Commonwealth and the court agree, in the manner provided in
§ 19.2-257, that the court shall fix punishment.

(Emphasis added).

In looking at the plain language of the statute, the statute is not ambiguous as to what, if

any, additional evidence may be presented to a new impaneled jury beyond the general

provisions set forth in Code § 19.2-295.1. Simply put, nothing more is authorized under the

statute. The statute’s silence indicates the legislature’s intent to limit the evidence presented in a

non-capital resentencing hearing to the evidence that would be allowed in the original sentencing

hearing.

Thus, as set forth in Code § 19.2-295.1, the Commonwealth can present in its

case-in-chief victim impact testimony and the defendant’s criminal history regardless of whether

it is the same jury or a newly impaneled jury. The Commonwealth then is permitted to present

additional relevant evidence only in rebuttal. Accordingly, nothing more is permitted unless the

defendant introduced relevant, admissible evidence related to punishment in its case-in-chief. 5

5
While the majority cites to several cases for the proposition that the Supreme Court has
expressly permitted evidence from the guilt phase of the original trial to be admitted at
resentencing, I disagree. The majority disregards the context of the Supreme Court’s holdings as
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Code § 19.2-295.1. The defendant also is permitted to present relevant evidence in rebuttal to

the Commonwealth’s evidence. Id. The statute makes no allowance for introduction of trial

exhibits or excerpts of testimony beyond that offered by the defendant or in rebuttal.

Instead of mirroring the capital murder sentence provision that permits presentation of

evidence “as to any matter which the court deems relevant to sentence,” Code § 19.2-264.4(B),

the legislature chose to limit the evidence permitted in a non-capital sentencing hearing when it

enacted Code § 19.2-295.1. Code § 19.2-295.1 does not authorize the presentation of any

well as the plain language of Code § 19.2-295.1, and therefore the cases are inapplicable to the
present case.
In Commonwealth v. Shifflett, 257 Va. 34, 42, 510 S.E.2d 232, 235 (1999), the Supreme
Court specifically addressed “[t]he crucial question . . . [of] 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’?” The Supreme Court focused on the meaning of
“relevant” evidence that a defendant can introduce at the punishment phase based on the
language in Code § 19.2-295.1, and not on what other evidence can be admitted. Thus, the
Supreme Court’s holding did not address the issue raised in the case at bar, and Shifflett is
inapplicable to the present case.
Similarly, in Hills v. Commonwealth, 262 Va. 807, 810-11, 553 S.E.2d 722, 724 (2001),
the Supreme Court held that this Court properly remanded the case to the trial court only for a
new sentencing hearing. While the Supreme Court addressed what evidence is admissible in a
resentencing hearing, it did so in the context of Hills’s assertion regarding what evidence is
“relevant” to sentencing. Id. at 811, 553 S.E.2d at 724. As noted above, “relevant” evidence is
only pertinent when addressing the evidence the defendant presents, or the defendant and
Commonwealth present in rebuttal. Code § 19.2-295.1. Thus, the majority’s reliance on its
assertion that the Supreme Court’s holding in Hills stands for the broad proposition that evidence
is admissible outside of the specific language of Code § 19.2-295.1 is misplaced.
Even more curious is the majority’s reliance on Fishback v. Commonwealth, 260 Va.
104, 532 S.E.2d 629 (2000), for the proposition that the Supreme Court has interpreted Code
§ 19.2-295.1 “to permit evidence of the circumstances surrounding the offense to be admitted at
resentencing . . . .” Fishback was “limited to the issue of whether the trial court erred in failing
to instruct the jury on the abolition of parole . . .” in a non-capital case. Id. at 108, 532 S.E.2d at
630. In addressing this narrow issue, Fishback does not even mention Code § 19.2-295.1, but
rather analyzes the issue in light of the judicial branch’s function of the assessment of
punishment in conjunction with the executive branch’s responsibility of the administration of
punishment. The Supreme Court then concluded that a jury “should not be required to perform
this critical and difficult responsibility [– i.e. determining a specific term of confinement within
the permissible range –] without the benefit of all significant and appropriate information that
would avoid the necessity that it speculate or act upon misconceptions concerning the effect of its
decision.” Id. at 113, 532 S.E.2d at 633 (emphasis added).
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additional evidence for a new impaneled jury. See Gillespie, 272 Va. at 759, 636 S.E.2d at

432-33 (noting that the General Assembly was presumed to have been aware of the capital

murder statutes and the cases construing them in effect in 1994 when it enacted Code

§ 19.2-295.1). Therefore, I “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.” Id. at 759, 636 S.E.2d at 433.

Accordingly, the General Assembly’s election to use language differing from that used

previously in the capital sentencing statute should not be interpreted as a legislative oversight

that needs judicial redrafting to avoid a manifest absurdity. Rather, the plain, unambiguous

language selected by the General Assembly provides a legitimate standard to be applied without

judicial revision.

For these reasons, I would reverse and remand for a new sentencing hearing limited to the

delineated evidence set forth in Code § 19.2-295.1.

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