dissenting.
Because I believe the trial judge erred in excluding from the jury’s consideration mitigating evidence relevant to sentencing, I dissent.
I.
During the jury trial, 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, 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 Earlysville.
When Shifflett left work, Roach was waiting in her truck and told Shifflett that she still was not feeling well. While 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 *546lot, 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 trooper 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 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.”
*547When 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.
Breeden testified that Shifflett displayed no “indication of any alcohol abuse.”
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.
*548The 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, 96 S.Ct. 2950, 2956, 49 L.Ed.2d 929 (1976). “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 ex rel. Sullivan v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 61, 82 L.Ed. 43 (1937).
[WJhere 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, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978) (quoting Williams v. People of State of New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (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, 98 S.Ct. at 2963.
The majority characterizes the evidence that the trial judge excluded from the jury as testimony “concerning the financial impact [Shifflett’s] incarceration would have on his family and employer” and concludes that the evidence “did not relate to [Shifflett’s] history or background.” I disagree.
The employer’s testimony regarding Shifflett’s success at 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, 58 S.Ct. at 61. Moreover, relevant sentencing factors traditionally have included an accused’s habits, lifestyle, family, and occupation. See 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).
*549Although 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, 102 S.Ct. 869, 878, 71 L.Ed.2d 1 (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, 96 S.Ct. at 2956 (stating that 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. I would 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, 279 Ill.App.3d 292, 215 Ill.Dec. 859, 869, 664 N.E.2d 256, 266 (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”); Commonwealth v. Cotter, 415 Mass. 183, *550612 N.E.2d 1145, 1148 (1993) (stating that when sentencing a defendant, the “defendant’s character and propensity for rehabilitation are relevant ... considerations”).