COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judge Frank and Senior Judge Bumgardner
Argued at Chesapeake, Virginia
GLEN JONES, JR.
OPINION BY
v. Record No. 1802-08-1 JUDGE ROBERT P. FRANK
JULY 28, 2009
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
C. Peter Tench, Judge
Charles E. Haden for appellant.
Kathleen B. Martin, Senior Assistant Attorney General (William C.
Mims, Attorney General, on brief), for appellee.
Glen Jones, Jr., appellant, was convicted, by a jury, of second-degree murder in violation
of Code § 18.2-32 and use of a firearm in the commission of murder, in violation of Code
§ 18.2-53.1. On appeal, he contends the trial court erred, during sentencing, in not allowing
appellant to advise the jury that he had been incarcerated for the same charges that had
previously been nolle prosequied. For the reasons stated, we affirm.
BACKGROUND
Because the underlying facts of the offenses are not relevant to this analysis, we will not
mention those facts. We need only recite the facts germane to the evidentiary issue before us.
Appellant was initially arrested in July 2005. 1 After two mistrials, the Commonwealth
nolle prosequied the two offenses in December 2006. Appellant was released thereafter.
1
Apparently appellant was in custody in North Carolina and waived extradition to
Virginia on April 3, 2007.
Appellant remained in custody for seventeen months prior to the nolle prosequi. He was
reindicted on the same offenses and rearrested April 12, 2007.
Appellant was convicted of second-degree murder and use of a firearm in the commission
of a felony on May 8, 2007. At the sentencing phase of the trial, appellant asked that he be
allowed to testify that he had been incarcerated for a period of time prior to the nolle prosequi, to
which the Commonwealth objected. The trial court did not permit this testimony.
During its sentencing deliberation, the jury submitted written questions, inquiring
whether appellant had already served time, how much time had been served, and if any such time
would be deducted from his sentence. The trial court advised the jury to “impose such
punishment as you feel is just under the evidence and within the instruction of the court. You’re
not to concern yourselves with what may happen afterwards.” 2
The jury sentenced appellant to ten years for the murder and to the mandatory three years
for the use of a firearm charge.
This appeal follows.
ANALYSIS
Appellant asserts that he should have been allowed to testify that he had been
incarcerated for approximately seventeen months on the earlier charges arising from the same
incident prior to those charges being nolle prosequied in December of 2006. 3 Appellant relies
on Code § 19.2-295.1 to support this contention.
Code § 19.2-295.1 establishes the procedure by which a defendant may introduce
evidence as part of a bifurcated jury trial. It states in pertinent part that the “defendant may
2
The trial court’s response to the jury’s inquiry is not before this Court.
3
Appellant contends the jury’s questions concerning prior incarceration support his
argument. However, our analysis of this issue is not dependent on the jury’s question. Our
analysis as to “relevancy” would be the same whether or not the jury made such an inquiry.
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introduce relevant, admissible evidence related to punishment.” Appellant contends his period of
incarceration prior to the nolle prosequi is “relevant” to his punishment. We disagree.
In Commonwealth v. Shifflett, 257 Va. 34, 510 S.E.2d 232 (1999), the Supreme Court of
Virginia addressed “relevant” testimony in the context of Code § 19.2-295.1. In that case, the
Court referred to its decision in a capital murder case, Coppola v. Commonwealth, 220 Va. 243,
257 S.E.2d 797 (1979). In Shifflett, the trial court would not allow, at sentencing, testimony
addressing the impact of appellant’s incarceration on his family and his employment. On appeal,
the Supreme Court found this testimony was irrelevant. The Court concluded that the factors in
the capital murder sentencing statute, Code § 19.2-264.4(B) should also apply to non-capital
sentencing, stating: “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.” Shifflett, 257 Va. at 43, 510 S.E.2d at 236.
Code § 19.2-264.4(B) states in pertinent part:
Evidence, which may be admissible, subject to the rules of
evidence governing admissibility, may include the circumstances
surrounding the offense, the history and background of the
defendant, and any other facts in mitigation of the offense. Facts
in mitigation may include, but shall not be limited to, the
following: (i) the defendant has no significant history of prior
criminal activity, (ii) the capital felony was committed while the
defendant was under the influence of extreme mental or emotional
disturbance, (iii) the victim was a participant in the defendant’s
conduct or consented to the act, (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, (v) the age of the
defendant at the time of the commission of the capital offense, or
(vi) even if § 19.2-264.3:1.1 is inapplicable as a bar to the death
penalty, the subaverage intellectual functioning of the defendant.
In Coppola, 220 Va. 243, 257 S.E.2d 797, the accused attempted to introduce evidence, at
sentencing, of the detrimental effect of his execution upon his children. The Supreme Court of
Virginia found this testimony was not relevant to punishment, citing Code § 19.2-264.4(B).
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The Supreme Court of Virginia in Shifflett 4 concluded:
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).
Shifflett, 257 Va. at 44, 510 S.E.2d at 236-37.
Thus, our inquiry is whether the trial court abused its discretion in finding the proffered
testimony was irrelevant to “mitigation of the offense.” Code § 19.2-264.4(B).
“‘[T]he admissibility of evidence is within the broad discretion of
the trial court, and [its ruling thereon] will not be disturbed on
appeal in the absence of an abuse of discretion.’” Jones v.
Commonwealth, 38 Va. App. 231, 236, 563 S.E.2d 364, 366
(2002) (quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371
S.E.2d 838, 842 (1988)). However, “a trial court ‘by definition
abuses its discretion when it makes an error of law.’” Shooltz v.
Shooltz, 27 Va. App. 264, 271, 498 S.E.2d 437, 441 (1998)
(quoting Koon v. United States, 518 U.S. 81, 100, 135 L. Ed. 2d
392, 116 S. Ct. 2035 (1996)). “In determining whether the trial
court made an error of law, ‘we review the trial court’s statutory
interpretations and legal conclusions de novo.’” Rollins v.
Commonwealth, 37 Va. App. 73, 79, 554 S.E.2d 99, 102 (2001)
(quoting Timbers v. Commonwealth, 28 Va. App. 187, 193, 503
S.E.2d 233, 236 (1998)).
Auer v. Commonwealth, 46 Va. App. 637, 643, 621 S.E.2d 140, 142-43 (2005).
4
In Gillespie v. Commonwealth, 272 Va. 753, 636 S.E.2d 430 (2006) (superseded by
statute on other grounds), the Supreme Court of Virginia clarified its ruling in Shifflett, i.e. that a
defendant, but not the Commonwealth, may introduce relevant, admissible evidence relating to
punishment and that the trial judge’s determination of relevance would be overturned only for a
clear abuse of discretion. Id. at 760, 636 S.E.2d at 433.
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“[D]iscretion is vested in the 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.
Virginia appellate courts have reviewed relevant evidence related to punishment on a
number of occasions. See id. (finding evidence regarding the life sentence of a codefendant
irrelevant); Runyon v. Commonwealth, 29 Va. App. 573, 513 S.E.2d 872 (1999) (disallowing
evidence of the impact of imprisonment on accused’s mental health); Caudill v. Commonwealth,
27 Va. App. 81, 497 S.E.2d 513 (1998) (finding the accused’s wife’s illness and dependency on
accused not relevant); Pierce v. Commonwealth, 21 Va. App. 581, 583, 466 S.E.2d 130, 131
(1996) (holding testimony that defendant was a “good upstanding citizen” and a “loyal and
loving son” relevant); Shifflett, 257 Va. 34, 510 S.E.2d 232 (upholding the trial court’s refusal to
allow evidence of the impact of incarceration on appellant’s family and employment and finding
a nonparticularized request to admit evidence of accused’s “life history” not relevant).
“[T]he purposes underlying the punishment of criminal conduct include deterrence,
incapacitation, rehabilitation and retribution.” Byrd v. Commonwealth, 30 Va. App. 371, 375,
517 S.E.2d 243, 245 (1999) (citing Gilliam v. Commonwealth, 21 Va. App. 519, 524, 465 S.E.2d
592, 594 (1996)).
The jury’s consideration of appellant’s incarceration addresses none of the purposes of
sentencing. In applying the factors of Code § 19.2-264.4(B) as they relate to Code § 19.2-295.1,
we find appellant’s pre-trial incarceration is not relevant to circumstances surrounding the
offense, the history and background of the appellant, circumstances that tend to explain the
offense, appellant’s criminal record, mental condition and intellectual functioning of defendant,
the age of appellant, or any other factor in mitigation of the offense.
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As appellant conceded at oral argument, the only purpose of informing the jury of
appellant’s prior incarceration was to allow the jury to reduce appellant’s sentence. However, in
accordance with Code § 19.2-295.1, “[t]he jury’s duty was to recommend sentence, not to
consider alternative forms of punishment or sentence reduction.” Runyon, 29 Va. App. at 577,
513 S.E.2d at 874 (citing Jones v. Commonwealth, 194 Va. 273, 279, 72 S.E.2d 693, 696
(1952)). “As a general rule, in determining a defendant’s sentence, a jury is not permitted to
consider what may happen to a defendant after the jury reaches its verdict.” Booker v.
Commonwealth, 276 Va. 37, 41, 661 S.E.2d 461, 463 (2008).
We conclude evidence of appellant’s incarceration prior to the nolle prosequi of the
original charges was irrelevant and was not evidence in mitigation of the offense. 5 The trial
court did not abuse its discretion. We therefore affirm the trial court.
Affirmed.
5
Because of our holding that time served prior to the nolle prosequi is not relevant, we
need not address appellant’s contention that the trial court erred in referencing Hudson v.
Commonwealth, 9 Va. App. 110, 383 S.E.2d 767 (1989).
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