COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, * Judge Annunziata and
Senior Judge Duff
Argued at Alexandria, Virginia
EMMITT LARON TAYLOR
MEMORANDUM OPINION** BY
v. Record No. 1776-96-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
DECEMBER 30, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
William L. Winston, Judge
Robert J. Hill for appellant.
Richard B. Smith, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Emmitt Taylor (appellant) was convicted in a bifurcated jury
trial of (1) conspiring to distribute five or more pounds of
marijuana; (2) possessing with the intent to distribute five or
more pounds of marijuana; and (3) transporting five or more
pounds of marijuana into Virginia with the intent to sell or
distribute it. During the sentencing phase of the trial,
appellant attempted to introduce evidence concerning his family
history and upbringing as mitigating factors to be considered in
imposing a sentence. The trial court excluded the evidence as
beyond the scope of Code § 19.2-295.1 and found that such
testimony is not "relevant, admissible evidence related to
*
On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
**
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
punishment." We disagree and reverse the decision of the trial
court and remand for a new sentencing proceeding.
After the jury found appellant guilty on the underlying
charges, the Commonwealth presented evidence that at the age of
seventeen, he was convicted of armed robbery in the state of
California. Appellant then attempted to introduce evidence of
his family situation and background as mitigating circumstances
to be considered at the penalty stage of the trial. The court
found the evidence inadmissible, and appellant was sentenced to
confinement in the penitentiary for 18 years on the conspiracy
and distribution charges and 20 years with an $80,000 fine on the
transporting charge. The trial court suspended the execution of
the 18-year sentence for a period of 18 years upon the completion
of the time served on the transporting sentence. The court
imposed the 20-year sentence and fine fixed by the jury on the
transporting charge.
After the sentencing hearing, the trial court allowed
appellant to proffer the excluded evidence. Appellant testified
that his father had been killed when he was nine, that he had no
male role models, that his mother abused drugs and alcohol, that
his half-brother had been shot, and that he had no fixed home
before he came to Virginia at the age of 22. He contends that
the trial court should have allowed the jury to consider these
facts.
This case is controlled by our recent en banc decision in
2
Shifflett v. Commonwealth, __ Va. App. ___, ___ S.E.2d ___
(1997), which analyzed the requirements of Code § 19.2-295. 1
This statute gives juries great latitude in determining an
appropriate sentence within the statutory framework provided.
See id.
"The sentencing decision is a quest for a sentence that best
effectuates the criminal justice 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).
"A jury must be allowed to consider all relevant evidence."
Shifflett, __ Va. App. at ___, ___ S.E.2d at ___ (citing Jurek v.
Texas, 428 U.S. 262, 271 (1976)). "[R]elevant sentencing factors
traditionally have included an accused's habits, lifestyle,
mental resources, family, and occupation." Shifflett, __ Va.
App. at ___, ___ S.E.2d at ___.
The excluded evidence in this case clearly was relevant to
appellant's background and family situation at the time of the
earlier conviction and was also probative of his current
situation. It was error for the trial court to exclude this
information from the jury's purview. Accordingly, we reverse and
remand for a resentencing hearing consistent with this opinion.
1
In the sentencing part of a bifurcated jury trial, "[a]fter
the Commonwealth has introduced . . . evidence of prior
convictions . . . the defendant may introduce relevant,
admissible evidence related to punishment." Code § 19.2-295.1.
3
Reversed and remanded.
4