Shifflett v. Commonwealth

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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