COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, * Judges Benton, Coleman,
Moon,** Willis, Elder, Bray, Annunziata and Overton
Argued at Richmond, Virginia
VERNON LEROY SHIFFLETT
OPINION BY
v. Record No. 2258-95-2 JUDGE JAMES W. BENTON, JR.
DECEMBER 30, 1997
COMMONWEALTH OF VIRGINIA
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
Scott Goodman for appellant.
Richard B. Smith, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Vernon Leroy Shifflett was convicted by a jury of driving
after having been adjudicated an habitual offender and after
having been twice convicted of the same offense. The jury
sentenced him to three years imprisonment. Shifflett contends
that the trial judge erred in excluding from the jury's
consideration mitigating evidence relevant to sentencing. A
panel of this Court, with one judge dissenting, affirmed the
trial judge's decision. See Shifflett v. Commonwealth, 24 Va.
App. 538, 484 S.E.2d 134 (1997). For the reasons that follow,
upon rehearing en banc, we reverse and remand for a new
*
On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
**
Judge Moon participated in the hearing and decision of this
case prior to his retirement on November 25, 1997.
sentencing proceeding in accordance with the provisions of Code
§ 19.2-295.1.
I.
During the guilt phase of Shifflett's trial, State Police
Trooper Bob Davis testified for the Commonwealth that he passed a
service station and saw Shifflett pumping gas into Norma Roach's
truck. Trooper Davis recognized Shifflett as an habitual
offender whom he had arrested a year earlier. Trooper Davis
waited at a place that he knew Shifflett would have to pass to
get home. When Shifflett drove by with Roach in the passenger
seat, Trooper Davis signalled for Shifflett to stop.
In Shifflett's defense, a friend and co-worker testified
that he drove Shifflett to work on the date of the offense and
was to drive Shifflett home that evening. However, when the
friend learned in the middle of the day that he had to work late,
he told Shifflett to find another ride home.
Shifflett testified that he contacted Norma Kim Roach, the
woman with whom he lives and who is the mother of his children,
and asked her to come for him. However, Roach said that she did
not feel well. Shifflett told Roach that if she was not at his
place of employment at the end of his work shift he would attempt
to find a ride with someone or walk if necessary. He worked in
Charlottesville but lived in Earleysville.
When Shifflett left work, Roach was waiting in her truck and
told Shifflett that she still was not feeling well. While
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driving home, Roach became dizzy and began to lean forward.
Shifflett testified that he grabbed the steering wheel and told
Roach to stop. After Roach drove into a restaurant's parking
lot, Shifflett obtained food and a drink for her. Shifflett
testified that after Roach told him that she still did not feel
better, he drove the truck because their children, ages eleven
and four, were alone at home.
Shifflett testified that he stopped on the way home to buy
gas for the truck. While Shifflett was pumping the gas, Roach
went inside the store to pay for the gas. When Shifflett drove
away from the store, the officer signalled for Shifflett to stop.
After the jury found Shifflett guilty of driving after
having been declared an habitual offender, Shifflett's counsel
informed the trial judge that he intended to offer mitigating
testimony about Shifflett's employment, family responsibilities,
and his motive for committing the offense. The trial judge ruled
that testimony from Roach about Shifflett's family
responsibilities was inadmissible. Over Shifflett's objection,
the trial judge ruled that evidence at the penalty phase would be
limited to the "range of punishment established by [the]
legislature, injury to the victim, use of [a] weapon, extent of
[the] offender's participation, the offense, [the] offender's
motive in committing the offense, prior record and rehabilitative
efforts, drug and alcohol use, age, health and education."
During the penalty phase, Roach was permitted to testify
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that she was not feeling well when Shifflett called and told her
that he needed a ride home. She went for him because he had no
means of getting home, except by walking. She testified that as
they were leaving Charlottesville, she became dizzy from vertigo.
She further testified that she has had episodes of vertigo for
twelve years, that she has had three ear surgeries, and that she
continues to receive treatment. When she did not feel better
after eating, she asked Shifflett to drive because she was
concerned about their children being at home alone.
Roach's doctor testified that Roach suffers from vertigo.
He testified that her "vertigo . . . is a . . . dizzy
condition . . . that's transient, that comes and goes."
When Shifflett's counsel sought to question Shifflett's
employer about Shifflett's employment, the trial judge sustained
the Commonwealth's objection based on the prior ruling limiting
the evidence. However, after the jury rendered its verdict on
the sentence, the trial judge discharged the jury and heard the
testimony of Shifflett's employer, William Amos Breeden, before
he imposed the jury's sentence. Breeden testified that Shifflett
did an "excellent job" as his employee and that Shifflett was
paid nine dollars per hour. Breeden also testified as follows
about efforts Shifflett made to get to work:
Well, for a couple months or three months, I
was going to pick [Shifflett] up at his house
and taking him home and his dad also paints,
so, I hired his dad a month ago and he brings
him to my house and we leave from my house
every morning at 5:30.
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Breeden testified that Shifflett displayed no "indication of any
alcohol abuse."
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II.
The rule is long standing in Virginia that "[w]ithin the
limits prescribed by law, the terms of confinement in the state
correctional facility or in jail and the amount of fine, if any,
of a person convicted of a criminal offense, shall be ascertained
by the jury, or by the court in cases tried without a jury."
Code § 19.2-295. Recently, the legislature established a
procedure bifurcating the trial and punishment proceedings. In
pertinent part, the statute states as follows:
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.
. . . After the Commonwealth has introduced
. . . evidence of prior convictions, or if no
such evidence is introduced, the defendant
may introduce relevant, admissible evidence
related to punishment.
Code § 19.2-295.1. This statute vests in juries wide discretion
in recommending a sentence within the statutory framework.
The purpose of Code § 19.2-295.1 is to provide two separate
phases of a trial. "The procedure assures the jury access to
'information specific only to sentencing, apart from the
considerations of guilt or innocence,' thereby promoting a
punishment appropriate to the circumstances without [prejudicing]
the initial determination of guilt or innocence." Daye v.
Commonwealth, 21 Va. App. 688, 689, 467 S.E.2d 287, 288 (1996)
(citation omitted). "'The sentencing decision . . . is a quest
for a sentence that best effectuates the criminal justice
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system's goals of deterrence (general and specific),
incapacitation, retribution and rehabilitation.'" Gilliam v.
Commonwealth, 21 Va. App. 519, 524, 465 S.E.2d 592, 594 (1996)
(citation omitted) (footnote omitted).
The general principle is well established that in the
exercise of its sentencing function, "[a] jury must be allowed to
consider . . . all relevant evidence." Jurek v. Texas, 428 U.S.
262, 271 (1976); see Pierce v. Commonwealth, 21 Va. App. 581,
584-85, 466 S.E.2d 130, 132 (1996). "For the determination of
sentences, justice generally requires consideration of more than
the particular acts by which the crime was committed and that
there be taken into account the circumstances of the offense
together with the character and propensities of the offender."
Pennsylvania v. Ashe, 302 U.S. 51, 55 (1937).
[W]here sentencing discretion is granted, it
generally has been agreed that the sentencing
[jury's] "possession of the fullest
information possible concerning the
defendant's life and characteristics" is
"[h]ighly relevant -- if not essential -- [to
the] selection of an appropriate sentence
. . . ."
Lockett v. Ohio, 438 U.S. 586, 602-03 (1978) (quoting Williams v.
New York, 337 U.S. 241, 247 (1949)). Because the circumstances
of the offense and the character and propensities of the offender
vary in each case, "the concept of individualized sentencing in
criminal cases generally, although not constitutionally required,
has long been accepted in this country." Id. at 602.
The employer's testimony regarding Shifflett's success at
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work and his efforts to maintain a commuting schedule that
obviated his need to drive reflect on Shifflett's "character and
propensities." Ashe, 302 U.S. at 55. Moreover, relevant
sentencing factors traditionally have included an accused's
habits, lifestyle, mental resources, family, and occupation. See
Bassett v. Commonwealth, 13 Va. App. 580, 581, 414 S.E.2d 419,
420 (1992); State v. Lemley, 552 N.W.2d 409, 412 (S.D. 1996);
State v. Morris, 750 S.W.2d 746, 750 (Tenn. Crim. App. 1987).
Cf. Burkett v. Commonwealth, 248 Va. 596, 615, 450 S.E.2d 124,
135 (1994); Murphy v. Commonwealth, 246 Va. 136, 141, 431 S.E.2d
48, 51 (1993); Correll v. Commonwealth, 232 Va. 454, 468, 352
S.E.2d 352, 360 (1987) (capital murder cases in which the trial
judge considered issues such as defendant's age, family
background, and work history in sentencing phase of trial).
Although the trial judge did not admit this mitigating
testimony for the jury to consider, the trial judge obviously was
aware that testimony concerning Shifflett's employment may have
had a bearing on the punishment decision. The trial judge
considered the testimony of Shifflett's employer before he
imposed the jury's sentence. However, the principle is well
established that judges "do not weigh the evidence" of mitigation
for the sentencing jury. Eddings v. Oklahoma, 455 U.S. 104, 117
(1982). The testimony of Shifflett's employer was relevant,
admissible, and erroneously excluded from the jury's
consideration. See Jurek, 428 U.S. at 271 (stating that
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sentencing juries must be provided with "all relevant evidence").
In addition, the testimony of Roach 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.
Shifflett's evidence reflected upon his habits, character,
and family circumstances and was therefore relevant to
determining an appropriate punishment. We therefore hold that
the trial judge erred in excluding the evidence from the jury's
consideration. Accord State v. Lee, 600 So.2d 796, 799 (La. Ct.
App. 1992) (stating that when sentencing a defendant,
"[i]mportant elements to be considered are the convict's personal
history (age, family ties, marital status, health, employment
record), prior criminal record or absence thereof, [the]
seriousness of the particular offense, and the likelihood of
recidivism or rehabilitation"); People v. Andrade, 664 N.E.2d
256, 266 (Ill. App. Ct. 1996) (stating that when sentencing a
defendant, "[r]elevant factors include . . . defendant's
credibility, demeanor, general moral character, mentality, social
environment, habits, age, and criminal history"). See generally
People v. Whalin, 885 P.2d 293, 298 (Colo. Ct. App. 1994)
(stating that when sentencing a defendant, "[r]elevant factors to
be considered include . . . the character of the offender");
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Commonwealth v. Cotter, 612 N.E.2d 1145, 1148 (Mass. 1993)
(stating that when sentencing a defendant, the "defendant's
character and propensity for rehabilitation are relevant . . .
considerations").
Accordingly, we reverse and remand the case for a new
sentencing proceeding consistent with this ruling.
Reversed and remanded.
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Annunziata, J., with whom Coleman and Overton, JJ., join,
dissenting.
Because I believe the trial court did not abuse its
discretion in excluding appellant's evidence of the impact of his
incarceration on his family and employment, I respectfully
dissent.
Under Code § 19.2-295.1, detailing the sentencing proceeding
in bifurcated felony jury trials, a "defendant may introduce
relevant, admissible evidence related to punishment." The
question before this Court is whether the trial court abused its
discretion in determining that the evidence appellant sought to
introduce did not fall within the scope of "relevant . . .
evidence related to punishment" under Code § 19.2-295.1. See
Coppola v. Commonwealth, 220 Va. 243, 253, 257 S.E.2d 797, 804
(1979) ("[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.").
Three well-accepted principles should guide our analysis of
this issue. First, pursuant to the principles of statutory
construction, the sentencing provisions of Code § 19.2-295.1 may
be validly analogized to the statutory provisions applicable to
the sentencing phase of bifurcated capital murder trials. See
Gilliam v. Commonwealth, 21 Va. App. 519, 522-23, 465 S.E.2d 592,
594 (1996); Bunn v. Commonwealth, 21 Va. App. 593, 598, 466
S.E.2d 744, 746 (1996). Second, this Court must look to the
"declared purposes of punishment for criminal conduct," including
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"`deterrence (general and specific), incapacitation, retribution
and rehabilitation.'" Gilliam, 21 Va. App. at 524, 465 S.E.2d at
594 (quoting United States v. Morris, 837 F. Supp. 726, 729 (E.D.
Va. 1993)). 1 Third, Virginia law has historically maintained a
clear distinction between the roles played by judge and jury in
criminal sentencing. The trial judge, rather than the jury, "is
vested with the responsibility of considering mitigating
circumstances and pronouncing sentence." Bruce v. Commonwealth,
9 Va. App. 298, 303, 387 S.E.2d 279, 281 (1990) (citing Duncan v.
Commonwealth, 2 Va. App. 342, 345, 343 S.E.2d 392, 394 (1986));
see also Vines v. Muncy, 553 F.2d 342, 349 (4th Cir. 1977);
Allard v. Commonwealth, 24 Va. App. 57, 67-68, 480 S.E.2d 139,
144 (1997); Duncan, 2 Va. App. at 345-46, 343 S.E.2d at 394-95.
Under Code § 19.2-264.4, the statutory provisions applicable
to the sentencing phase of bifurcated capital murder trials,
"[t]he jury has the duty to consider all the evidence relevant to
sentencing, both favorable and unfavorable" before making its
determination. E.g., Stamper v. Commonwealth, 220 Va. 260,
275-76, 257 S.E.2d 808, 819 (1979). Evidence considered relevant
to jury sentencing and in mitigation of punishment in capital
murder sentencing is specifically addressed under Code
1
"Recognized `[t]heories of punishment' include prevention,
restraint, rehabilitation, deterrence, education, and
retribution." Gilliam, 21 Va. App. at 524 n.3, 465 S.E.2d at 594
n.3 (quoting Wayne R. LaFave & Austin W. Scott, Jr., Substantive
Criminal Law § 1.5 (1986)).
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§ 19.2-264.4(B). 2 Although the list of mitigating factors is not
exclusive, the enumerated factors share a common denominator:
they all address either the defendant or the circumstances
surrounding the crime. See Coppola, 220 Va. at 253, 257 S.E.2d
at 804 ("The kind of evidence therein contemplated bears upon the
record of the defendant and the atrociousness of his crime.").
Accordingly, under the statutory scheme, mitigating evidence is
that which shows "'extenuating circumstances tending to explain,
2
Code § 19.2-264.4(B) provides:
In cases of trial by jury, evidence may
be presented as to any matter which the court
deems relevant to sentence, except that
reports under the provisions of § 19.2-299,
or under any rule of court, shall not be
admitted into evidence.
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) mental
retardation of the defendant.
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but not excuse, [the] commission of the crime.'" Correll v.
Commonwealth, 232 Va. 454, 468, 352 S.E.2d 352, 360 (1987)
(quoting Coppola, 220 Va. at 253, 257 S.E.2d at 797)); see also
Burket v. Commonwealth, 248 Va. 596, 616, 450 S.E.2d 124, 135
(1994); Murphy v. Commonwealth, 246 Va. 136, 142, 431 S.E.2d 48,
52 (1993).
Applying these principles, I would find the trial court did
not abuse its discretion. During the sentencing phase, appellant
sought to elicit testimony from his girlfriend and employer
concerning the financial impact of his incarceration on his
family and employer. Unlike the fact that appellant resided with
his family and that he was employed, evidence of which was before
the jury during the guilt phase of the trial, the testimony in
question did not relate to appellant himself or the circumstances
surrounding the crime. The evidence was, therefore, not relevant
evidence related to punishment under Virginia law. See Code
§ 19.2-264.4; Coppola, 220 Va. at 253-54, 257 S.E.2d at 804
(holding that the effect of incarceration upon relatives is not a
mitigating circumstance "analogous to any of the evidence
specifically approved in the statute"). Nor was the evidence in
question offered to explain the commission of the crime.
Furthermore, the relevance of appellant's proffered evidence
in this case, as it relates to the purposes of sentencing, must
be viewed, not in the abstract, but in the context of the jury's
sentencing role under Virginia law. See Duncan, 2 Va. App. at
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345-46, 343 S.E.2d at 394-95. The declared purposes of
punishment for criminal conduct relate to: (1) the defendant
(specific deterrence, incapacitation and rehabilitation); (2) the
victim (retribution); or (3) the public at large (general
deterrence). See Gilliam, 21 Va. App. at 524, 465 S.E.2d at 594
(citing Morris, 837 F. Supp. at 729). However, the jury's role
and its relationship to these sentencing purposes have been
limited by Virginia law. Specifically, in non-capital cases,
Virginia law confines the jury to determining the appropriate
range of incarceration, with the exception that a judge may add a
suspended sentence to the jury's recommendation to ensure post-
release supervision. Allard, 24 Va. App. at 68, 480 S.E.2d at
144; Bruce, 9 Va. App. at 303, 387 S.E.2d at 281 (citing Duncan,
2 Va. App. at 345, 343 S.E.2d at 394). Neither retribution nor
rehabilitation through means other than incarceration comes
within the purview of the sentencing jury.
Recent amendments to the statutory scheme have not
eviscerated the distinction Virginia law has historically
maintained between the respective roles of judge and jury, a
distinction the majority opinion fails to reflect. See Allard,
24 Va. App. at 68, 480 S.E.2d at 144. Most of the cases the
majority relies upon arise not in the context of jury sentencing,
but rather in the context of sentencing by the judge; 3 the
3
See Eddings v. Oklahoma, 455 U.S. 104, 112-13 (1982)
(holding that the sentencing judge erroneously failed to consider
evidence of mitigation); Lockett v. Ohio, 438 U.S. 586, 602-03
(1978) (addressing the "sentencing judge's 'possession of the
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remainder do not address the question of what evidence a
defendant is entitled to present to a sentencing jury. 4
The only authority cited by the majority which addresses
mitigation evidence in the context of jury sentencing is Jurek v.
Texas, 428 U.S. 262, 271 (1976). The analysis of the United
fullest information possible concerning the defendant's life and
characteristics'" (quoting Williams v. New York, 337 U.S. 241,
247 (1949))); Williams, 337 U.S. at 247 (explaining that the
sentencing judge needs "the fullest information possible");
People v. Whalin, 885 P.2d 293, 298 (Colo. Ct. App. 1994)
(holding that sentencing court did not abuse its discretion in
sentencing defendant to sixteen years for sexual assault on a
child); People v. Andrade, 664 N.E.2d 256, 266 (Ill. Ct. App.)
(holding that sentencing court did not abuse its discretion in
sentencing defendant to nine years for delivery of controlled
substance), appeal denied, 671 N.E.2d 735 (Ill. 1996); State v.
Lee, 600 So. 2d 796, 799 (La. Ct. App. 1992) (holding that
sentencing judge adequately considered statutory factors);
Commonwealth v. Cotter, 612 N.E.2d 1145, 1148 (Mass. 1993)
(holding that sentencing court was justified in refusing to
suspend sentence where defendant indicated he would not accept
the conditions of probation); State v. Lemley, 552 N.W.2d 409,
411-12 (S.D. 1996) (holding that sentencing court's sentence of
350 years did not impose cruel and unusual punishment); State v.
Morris, 750 S.W.2d 746, 750 (Tenn. Ct. Crim. App. 1987) (holding
that trial judge properly considered evidence relating to
statutory factors); Burket, 248 Va. at 615, 450 S.E.2d at 135
(holding that the sentencing judge adequately considered the
mitigation evidence); Murphy, 246 Va. at 141-42, 431 S.E.2d at
360 (holding that the sentencing judge considered all of the
evidence in mitigation); Correll, 232 Va. at 468, 352 S.E.2d at
360 (holding that the sentencing judge did not disregard
mitigation evidence); Bassett v. Commonwealth, 13 Va. App. 580,
582-83, 414 S.E.2d 419, 420-21 (1992) (holding that the
sentencing judge adequately considered mitigating factors).
4
See Pierce v. Commonwealth, 21 Va. App. 581, 583, 466
S.E.2d 130, 131 (1996) (holding that Code § 19.2-295.1 does not
bar a defendant from introducing evidence at the sentencing phase
of a jury trial because the Commonwealth does not introduce
evidence); Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55
(1937) (holding that a state may provide that a person convicted
of breaking out of a penitentiary serve an additional period not
exceeding the original sentence).
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States Supreme Court in Jurek, however, highlights the
distinction between judge and jury sentencing in Virginia. The
Texas statute at issue in Jurek provided that the jury's
resolution of three statutory questions determined whether the
death penalty would be imposed; the judge had no role to play in
determining the sentence. Id. at 269. In contrast, Virginia
sentencing procedure grants to the judge final authority over the
sentence. Duncan, 2 Va. App. at 345, 343 S.E.2d at 394 (citing
Vines v. Muncy, 553 F.2d 342, 349 (4th Cir. 1977)). Precisely
because the judge bears the ultimate responsibility for imposing
sentence, "the consideration of mitigating circumstances [is for]
the court." Id. at 345, 343 S.E.2d at 394.
Finally, the majority's approach is foreclosed in large part
by the Virginia Supreme Court's decision in Coppola, 220 Va. 243,
257 S.E.2d 797. In Coppola, the trial court excluded evidence of
the impact of the defendant's prosecution on his young children.
In upholding the trial court's ruling, the Supreme Court held
that "the effect of [the defendant's] incarceration upon
relatives is not a mitigating circumstance for the jury to
consider." Id. at 254, 257 S.E.2d at 804. The effect of
appellant's incarceration upon his family, or, by analogy, his
employer, likewise "is not a mitigating circumstance for the jury
to consider." Id. I would hold that the trial court did not
abuse its discretion, and would affirm appellant's conviction.
For these reasons, I respectfully dissent.
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