COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia
NATHANIEL DALE PIERCE
v. Record No. 0145-95-1 OPINION BY
JUDGE WILLIAM H. HODGES
COMMONWEALTH OF VIRGINIA JANUARY 30, 1996
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert W. Curran, Judge
James S. Ellenson, for appellant.
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Richard B. Smith, Assistant Attorney General,
on brief), for appellee.
Nathaniel Dale Pierce (appellant) appeals from a judgment of
the Circuit Court of the City of Newport News finding him guilty
of first degree murder, three counts of malicious wounding, and
four counts of using a firearm in the commission of a felony.
The sole question in this appeal is whether the trial court erred
in ruling that Code § 19.2-295.1 barred appellant from
introducing evidence at the sentencing phase of his jury trial
because the Commonwealth declined to introduce evidence. We hold
that the trial court erred; accordingly, we reverse and remand
for a new sentencing proceeding.
After the jury returned its verdicts finding appellant
guilty of the charged offenses, the prosecutor advised the court
that he had no evidence to introduce at the sentencing phase to
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be conducted pursuant to Code § 19.2-295.1. Defense counsel
1
When appellant's trial began on January 10, 1995, Code
stated that he intended to call appellant's mother to testify
that appellant had been a "good upstanding citizen" and a "loyal
and loving son." During the ensuing argument about whether Code
§ 19.2-295.1 permitted appellant to introduce evidence under the
circumstances, appellant's counsel stated, "Well, after you've
read the statute, it doesn't quite appear that we can, but we'd
like to." The trial court refused to permit appellant to
introduce evidence, ruling that Code § 19.2-295.1 allowed a
defendant to put on evidence only in rebuttal to the
Commonwealth's evidence. Defense counsel noted his exception to
this ruling.
Appellant argues that the trial court misinterpreted Code
§ 19.2-295.1 as barring a defendant from introducing evidence at
the sentencing phase unless the Commonwealth has put on evidence.
The Commonwealth contends appellate review of the issue is
procedurally barred because appellant acquiesced in the trial
court's ruling. However, the record clearly shows that defense
counsel placed the issue before the court and excepted to the
adverse ruling. Counsel's comment concerning the relative
strength of his position did not constitute an agreement with the
court's decision. Thus, appellant's argument on appeal is not an
(..continued)
§ 19.2-295.1 stated that at a sentencing proceeding, "the
Commonwealth shall present the defendant's prior criminal
convictions . . . . After the Commonwealth has introduced such
evidence of prior convictions, 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."
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attempt to "approbate and reprobate." See Fisher v.
Commonwealth, 236 Va. 403, 417, 374 S.E.2d 46, 54 (1988), cert.
denied, 490 U.S. 1028 (1989). Further, we find no merit to the
Commonwealth's assertion that appellant's brief provides
insufficient argument to support his position. See Rule
5A:20(e). Thus, we address on the merits the issue before us.
Code § 19.2-295.1 is a procedural statute, governing the
ascertainment of punishment in a criminal jury trial. Statutes
regarding criminal procedure generally are construed strictly
against the Commonwealth. See Bottoms v. Commonwealth, 20 Va.
App. 466, 469, 457 S.E.2d 796, 797 (1995). See also Gray v.
Commonwealth, 220 Va. 943, 945, 265 S.E.2d 705, 706 (1980). Even
so, "[w]here the language of the applicable statute is clear and
unambiguous, the court 'must take the words as written and give
them their plain meaning.'" Williams v. Commonwealth, 12 Va.
App. 912, 920, 407 S.E.2d 319, 325 (1991) (en banc).
"After the Commonwealth has introduced such evidence of
prior convictions, the defendant may introduce relevant,
admissible evidence related to punishment." Code § 19.2-295.1.
The Commonwealth construes this sentence to mean that the
defendant is permitted to introduce evidence only if the
2
Commonwealth has done so. Instead of using the phrase "only if"
2
The General Assembly amended Code § 19.2-295.1, effective
July 1, 1995, to state that a defendant is not precluded from
introducing evidence even if the Commonwealth introduces no
evidence.
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in the statute, however, the General Assembly chose the term
"after." We presume that the legislature uses a nontechnical
term such as "after" in its ordinary sense. See Frere v.
Commonwealth, 19 Va. App. 460, 465, 452 S.E.2d 682, 685 (1995).
The word "after" means "later than a particular time or
period of time." Suggs v. Life Insurance Co., 207 Va. 7, 11 n.*,
147 S.E.2d 707, 710 n.* (1966). So defined, the statutory
language in question simply sets forth the order of proof at the
sentencing proceeding. However, the language does not prohibit
the defendant from introducing relevant, admissible evidence
related to punishment if the Commonwealth chooses not to produce
evidence of the defendant's prior convictions, or if the
defendant has no criminal record that the Commonwealth can
introduce.
This result is consistent with the sentence in Code
§ 19.2-295.1 that "[n]othing in this section shall prevent the
Commonwealth or the defendant from introducing relevant,
admissible evidence in rebuttal." "Whenever possible, . . . it
is our duty to interpret the several parts of a statute as a
consistent and harmonious whole so as to effectuate the
legislative goal." VEPCO v. Board of Supervisors, 226 Va. 382,
388, 309 S.E.2d 308, 311 (1983).
Following appellant's trial, Code § 19.2-295.1 was amended
to permit a sentencing proceeding before a different jury if a
defendant's sentence is reversed on appeal because of error in
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the original sentencing proceeding. "The general rule is that
statutes are to be applied prospectively absent an express
legislative provision to the contrary." Wyatt v. Dep't of Social
Services, 11 Va. App. 225, 228, 397 S.E.2d 412, 414 (1990).
Rules of procedure, such as those contained in Code § 19.2-295.1,
"are not protected from the effect of a repealing statute." Id.
at 229, 397 S.E.2d at 414. Accordingly, we reverse and remand
the case for a new sentencing proceeding consistent with Code §
19.2-295.1, as amended. See Evans v. Commonwealth, 228 Va. 468,
476-77, 323 S.E.2d 114, 119 (1984), cert. denied, 471 U.S. 1025
(1985) (where defendant's death sentence reversed because of
error at sentencing proceeding, defendant properly resentenced by
different jury as permitted by a statute enacted after his first
trial and conviction).
Reversed and remanded.
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