COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Willis and
Senior Judge Overton
Argued at Alexandria, Virginia
TIMOTHY JERMAN
OPINION BY
v. Record No. 1183-00-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
FEBRUARY 13, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jonathan C. Thacher, Judge
John A. Keats for appellant.
Robert H. Anderson, III, Senior Assistant
Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.
Timothy Jerman (appellant) was convicted in a jury trial of
second-degree murder and abduction. On appeal, he contends the
jury should have been instructed that parole in Virginia has been
abolished. We agree, reverse his sentence and remand to the trial
court for a new sentencing hearing.
I.
On November 17, 1999, appellant was convicted of the
second-degree murder and abduction of Justin Radigan. The jury
was then instructed regarding the penalty phase. Appellant did
not request an instruction on the abolition of parole. During the
course of deliberations the jury posed two questions. The first
inquired "At what point in a sentence will the defendant be
subject to parole? In other words, what are the parameters for
parole eligibility?" The trial court, Commonwealth's attorney,
and defense counsel agreed that the jury should be instructed,
"You have found the Defendant guilty of murder in the second
degree and abduction. You should impose such punishment as you
feel is just upon the evidence and within the instructions of the
Court. You are not to concern yourselves with what may happen
afterwards." This instruction accurately reflected the law as of
the date of trial. After further deliberations, the jury imposed
a sentence of five years on the second-degree murder charge and
ten years on the abduction charge. On February 9, 2000, the trial
judge imposed the sentence recommended by the jury. On
February 11, 2000, appellant filed a motion to set aside the
verdict and requested a new sentencing hearing because the jury
should have been instructed that parole had been abolished. On
February 22, 2000, the trial court denied appellant's motion.
Appellant appeals from this denial.
II.
On June 9, 2000, while appellant's case was pending before
this Court, the Supreme Court of Virginia decided Fishback v.
Commonwealth, 260 Va. 104, 532 S.E.2d 629 (2000), which overruled
Coward v. Commonwealth, 164 Va. 639, 178 S.E. 797 (1935). The
Court held that "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 pursuant to Code
- 2 -
§ 53.1-165.1." Fishback, 260 Va. at 115-16, 532 S.E.2d at 634.
"[B]ecause this is a new rule of criminal procedure it is limited
prospectively to those cases not yet final on this date." Id. at
116, 532 S.E.2d at 634 (emphasis added). Cases pending before
this Court on June 9, 2000 are governed by Fishback because they
are not yet final. See Hartigan v. Commonwealth, 32 Va. App. 873,
531 S.E. 2d 63 (2000).
Although appellant's case was pending in this Court with the
parole instruction delineated as a grant for appeal on June 9,
2000, the Commonwealth contends that appellant waived his right to
raise this issue because he did not object to the instructions
given to the jury and did not raise the issue until two days after
the trial judge imposed the jury's sentence. The Commonwealth
relies upon the Supreme Court's discussion of Fishback's
proposed jury instructions to support its argument. We find no
merit to this argument. We note that Fishback's proposed
instruction was an improper statement of the law and, thus,
unless the principle of law was "materially vital to [the]
defendant" it was not reversible error for the trial court to
have refused to correct the defective instruction and give it in
proper form. Atkins v. Commonwealth, 257 Va. 160, 178, 510
S.E.2d 445, 456 (1999). However, although the Court found that
the "jury's knowledge of the abolition of parole was materially
vital" to Fishback's case, the Court did not hold that the trial
judge erred in failing to correct the defective statement;
- 3 -
rather, the Court stated that the "deficiencies in [Fishback's]
proffered instructions . . . do not bar our consideration of the
issue." Fishback, 260 Va. at 117, 532 S.E.2d at 635. Thus, the
Court did not rely upon Fishback's proposed jury instruction as a
basis for preserving his right to appeal the issue. The Court
focused upon the trial court's responsibility to instruct the
jury, holding that "'[i]t belongs to the [trial] court to instruct
the jury as to the law, whenever they require instruction, or
either of the parties request it to be given.'" Id. at 117, 532
S.E.2d at 635 (quoting Thornton v. Commonwealth, 65 Va. (24
Gratt.) 657, 662 (1874) (emphasis added)). This duty arises even
though appellant failed to object to the instruction at the
sentencing hearing. See Campbell v. Commonwealth, 14 Va. App.
988, 991, 421 S.E.2d 652, 654 (1992). Therefore, appellant did
not waive his right to raise this issue when he failed to object
to the instruction given to the jury.
The facts of this case are similar to Fishback. In Fishback,
the appellant proffered two jury instructions, one stating that
"there is no parole in Virginia" and the other stating that the
jury "assume that [the defendant] will actually serve all of the
jail or prison time you find to be an appropriate sentence and you
are not otherwise to concern yourselves with what may happen
afterwards." Id. at 109, 532 S.E.2d at 630. The trial court
rejected both instructions. During deliberations the jury
inquired of the court, "Can he qualify for parole[?]" The trial
- 4 -
court instructed the jury, "[h]aving found [Fishback] guilty, you
should impose such punishment as you feel is just under the
evidence and within the instructions of the Court. You are not to
concern yourselves with what may happen afterwards." Id. at 110,
532 S.E.2d at 631. Fishback's attorney "did not object to this
instruction or renew her request that the trial court instruct the
jury that parole had been abolished." Id.
In this case, the question propounded by the jury and the
response given by the court without objection from appellant are
factually similar to those in Fishback. The sole difference is
that appellant, in the instant case, did not request an
instruction regarding the abolition of parole until post-trial
motions. 1 However, appellant's failure to request an instruction
does not end our analysis. Fishback clearly states that any case
"not yet final," i.e., still in the breast of a proper trial court
or appellate process, is subject to the new instruction
requirements. Id. at 116, 532 S.E.2d at 634. The jury inquired
of the court, "At what point in a sentence will the defendant be
subjected to parole? In other words, what are the parameters for
parole eligibility?" This question clearly indicated to the trial
court that the jury assumed that parole would be available to
appellant. This is the precise instance the Supreme Court
1
As previously indicated, Fishback's proposed jury
instruction regarding the abolition of parole was not
significant to the Court's decision in Fishback.
- 5 -
addressed by stating that the jury required instruction from the
court as to the "new rule" of law in pending cases. The trial
court's response in this case failed to fulfill the requirement of
Fishback because it left the jury with the belief that parole
would be available. Even though appellant failed to object or
raise the issue during trial, the trial court had an affirmative
duty to properly instruct the jury about the matter because they
evidenced a need for instruction by posing the question to the
court. Id.; see also Campbell v. Commonwealth, 14 Va. App. 988,
991, 421 S.E.2d 652, 654 (1992). Thus, this case is clearly
within the time frame and class of cases contemplated by the
Supreme Court in its strictures for addressing the parole
eligibility question. Appellant's case was "not yet final" and
the "new rule" is applicable. Accordingly, appellant's sentence
will be vacated and the case remanded to the trial court for a new
sentencing hearing.
Reversed and remanded.
- 6 -