Commonwealth v. Shifflett

Present: All the Justices

COMMONWEALTH OF VIRGINIA

v. Record No. 980187

VERNON LEROY SHIFFLETT
OPINION BY JUSTICE A. CHRISTIAN COMPTON
January 8, 1999
COMMONWEALTH OF VIRGINIA

v. Record No. 980188

EMMITT LARON TAYLOR

FROM THE COURT OF APPEALS OF VIRGINIA

These two criminal appeals, involving findings of guilty in

noncapital felony prosecutions, present a common issue: Did the

Court of Appeals of Virginia err in reversing the respective

circuit courts, which limited evidence the defendants sought to

introduce during the sentencing proceedings conducted as part of

the bifurcated jury trials?

Code § 19.2-295.1 sets forth the procedure in such cases.

It provides, in part, that after the prosecution has had the

opportunity to present evidence of the defendant's prior

convictions, "the defendant may introduce relevant, admissible

evidence related to punishment." We are concerned here with the

meaning of the statutory term "relevant."

At the outset, we issue a caveat. We shall adhere strictly

to the content of the records made in the respective trial
courts, a practice not followed in either of these cases by the

Court of Appeals, as we shall demonstrate.

In one case, appellee Vernon Leroy Shifflett was found

guilty by a jury in the Circuit Court of Albemarle County of

operating a motor vehicle on a public highway in January 1995

after having been adjudicated an habitual offender, it being a

second or subsequent offense.

Prior to commencement of the sentencing proceeding, the

trial court and counsel discussed "what's relevant" with

reference to punishment. The attorney for the defendant

represented to the court, "I do intend to put on mitigating

testimony about his employment, his family responsibilities."

Responding, the court mentioned "factors" that may be

relevant to punishment, "range of punishment established by

legislature, injury to the victim, use of weapon, extent of

offender's participation, the offense, offender's motive in

committing the offense, prior record and rehabilitative efforts,

drug and alcohol use, age, health and education." The

prosecutor then stated, "Why he did it . . . is relevant . . . .

But not his job responsibilities and his family responsibilities

and the fact that impliedly the common law wife and the children

are going to have to make it without him for a while. That has

no relevance to it." Defense counsel responded, "I think it

does, I think it does."

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 The trial judge then ruled he would limit the defendant's

evidence to the applicable factors previously mentioned and

said, "one of them isn't how the family is affected by it." The

prosecutor and the court then agreed with defense counsel that

"defendant's motive for committing the offense" was admissible.

Defendant's girlfriend, and mother of his two small children,

claimed she had become ill while driving defendant home from

work, necessitating defendant becoming the operator of the

vehicle and resulting in his arrest.

Continuing, defense counsel argued to the trial court that

he wished to present evidence of the girlfriend's participation

in the offense "and what happened that day and the mitigating

factor that led him to be behind the wheel [and] testimony from

her about his support of the children, his income -- the income

that the family has that he brings in and support for her

position that she did have those spells and the doctor is here

now to testify on the treatment that she's had, to verify what

she says and that goes to why he took the wheel, the offender's

motive for committing the offense." Responding, the court

stated that evidence of defendant's "motive to commit the

offense" would be admissible.

The prosecutor then stated he did not object to testimony

from the girlfriend's physician but said, "I do object to her

getting on the stand and saying I only make so much money and I

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have to take care of the kids and all those other things."

Defense counsel answered, "I think that should come in." The

court ruled, "And that's what I'm ruling is not coming in."

During presentation of the evidence during the sentencing

phase, the court adhered to its prior rulings that were based on

defendant's arguments presented to the court. The girlfriend

testified she became dizzy, could no longer operate the vehicle

safely, and was forced to allow the defendant to drive. The

girlfriend's physician testified he had been treating her for

vertigo. The defendant's employer, a painter, testified

defendant worked for him but the trial court refused to allow

testimony about "defendant's present employment," the trial

judge stating he was being consistent with his prior ruling.

After the jury retired to deliberate punishment, defense

counsel stated to the court that "with regard to Mr. Leroy

Shifflett's employment, Your Honor, that was certainly relevant

in terms of where he worked, how he got back and forth to work,

what he made in his employment, credentials and how good a

worker he was. That's certainly all very relevant." The court

responded that "employment" was not among the "factors"

discussed earlier that was relevant to punishment.

The jury fixed defendant's punishment to confinement in the

penitentiary for three years. After the jury was discharged and

before the court sentenced defendant, he presented testimony of

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his employer. He stated that he had employed defendant for four

months, that defendant was an "excellent" worker, that he (the

employer) "need[s]" defendant because he had "a lot of . . .

work lined up in the future," and that defendant had been able

to find persons to drive him to work. The court sentenced

defendant in accordance with the verdict in a September 1995

judgment order.

Upon appeal, a three-judge panel of the Court of Appeals,

one judge dissenting, affirmed the conviction and sentence.

Shifflett v. Commonwealth, 24 Va. App. 538, 484 S.E.2d 134

(1997). The court stated that defendant contended on appeal

"the trial court erred in preventing him from eliciting

testimony at the sentencing phase of his trial concerning the

impact of his incarceration upon his family and his employment."

Id. at 540, 484 S.E.2d at 135 (emphasis added). The court held

the trial court did not abuse its discretion in refusing to

allow defendant "to elicit testimony from his girlfriend and

employer concerning the financial impact his incarceration would

have on his family and employer." Id. at 543, 484 S.E.2d at

136. That testimony, the court said, was "not relevant evidence

related to punishment for consideration by the jury under

Virginia law." Id., 484 S.E.2d at 137.

Upon rehearing en banc, the Court of Appeals, in a 6-3

decision, reversed the case and remanded it for a new sentencing

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proceeding. Shifflett v. Commonwealth, 26 Va. App. 254, 261,

494 S.E.2d 163, 167 (1997). The court stated that the

"employer's testimony regarding Shifflett's success at work and

his efforts to maintain a commuting schedule that obviated his

need to drive reflects on Shifflett's 'character and

propensities,'" which are relevant to sentencing. Id. at 260,

494 S.E.2d at 166. The court further stated that the

girlfriend's testimony "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." Id. at 261, 494 S.E.2d at 166. We

awarded the Commonwealth this appeal from that judgment of the

Court of Appeals.

In the other case, appellee Emmitt Laron Taylor was found

guilty by a jury in the Circuit Court of Arlington County of

conspiring to distribute five or more pounds of marijuana,

possessing with the intent to distribute the same amount of the

drug, and transporting the same amount of the drug into Virginia

with the intent to sell or distribute it. The defendant was

arrested on October 10, 1995 on the premises of Washington

National Airport.

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 During the sentencing proceeding, the Commonwealth

presented evidence that defendant, 22 years of age at the time

of the February 1996 trial, had been convicted in California in

1990 of armed robbery and in 1994 of a violation of California's

narcotics laws.

Following presentation of this evidence, the defendant took

the witness stand and was asked by his attorney to "tell the

jury about your family." After defendant stated he had an older

brother, an older sister, and a younger brother, and that the

younger brother had been "killed" because "they had a grudge

against him," the trial court sustained the prosecutor's

objection to the testimony. A discussion followed among the

court and counsel about what evidence was relevant to punishment

under the applicable statute.

Defense counsel argued that "who Emmitt Taylor is is

certainly a relevant issue." Responding to the court's

question, "What do you propose to have him testify to," defense

counsel responded, "About his life." The court interjected,

"Life story?" and counsel responded, "Yes."

The court ruled that evidence "just relating the whole

story" was inadmissible and not relevant to sentencing. After

defense counsel said, "Note my objection, Your Honor," the court

stated: "Now, the statute that permits relevant and admissible

evidence from the Defendant on the sentencing phase of the case

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is limited to that, and I don't want to limit you anymore than

that; but it does not permit just a complete open door telling

of everything." Defense counsel responded, "All right, Your

Honor."

The sentencing phase continued with the defendant

testifying that he was 17 years of age at the time of the armed

robbery conviction and that he pled guilty to the narcotics

charge because he was told it "was a juvenile matter and would

be sealed." Responding to further questions, defendant

testified that he had completed the 11th grade in school, and

that he had worked as a gardener, a cook, and at a fish market.

The jury fixed defendant's punishment to confinement in the

penitentiary for 18 years on each of the conspiracy and

distribution charges and to confinement for 20 years and an

$80,000 fine on the transporting charge. After the jury was

discharged, the trial court granted defendant's request for a

presentence report.

Six days after the jury had been discharged, the trial

court granted defendant's request, made the day after trial, to

have inserted in the record a proffer of testimony. Stating

that the trial court's ruling on evidence dealing with

punishment was "overly narrow," defense counsel offered "some

proof of what my client would have testified to."

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 During the post-trial hearing, defendant testified, for

example, that when he was age nine, his father was robbed and

killed; that he had no "male role models growing up"; that his

mother is a heavy drug user; that his younger half-brother was

killed by gunshots after an argument with his assailants; that

he had no fixed home prior to coming to Virginia; and that he

received no "instruction as to discipline" from his family.

Following argument of counsel, the trial court made two

rulings in denying what it treated as a motion to "reopen the

case" to permit presentation of additional evidence. First, the

court ruled that the proffer was untimely. The court stated

that "the proffer should be made at the moment of the exclusion

in order to give the trial court the opportunity to admit the

evidence in the event its ruling to exclude would be deemed to

be in error." The court continued: "However, here, the motion

that is being made now is not timely. And that is one of the

reasons . . . assigned for its denial." Second, the trial court

ruled the evidence presented in the proffer was not relevant to

sentencing.

In judgments of conviction entered in June 1996, the trial

court suspended execution of the conspiracy and distribution

sentences and imposed the transporting sentence.

Upon appeal, a panel of the Court of Appeals, in an

unpublished opinion dated the same day as the Shifflett en banc

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opinion, reversed the trial court judgments and remanded for a

resentencing hearing. Reciting only the facts presented during

the proffer, ruled untimely by the trial court, the Court of

Appeals said the case was controlled by the Shifflett en banc

decision. The court held: "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." We awarded the

Commonwealth this appeal from that judgment of the Court of

Appeals.

The crucial question in these appeals is what did the

General Assembly mean when it provided in Code § 19.2-295.1 that

during the punishment phase of a bifurcated noncapital jury

trial, where the defendant has been found guilty, "the defendant

may introduce relevant . . . evidence related to punishment"?

This statute was enacted in 1994 when Virginia changed the

procedure in such cases from unitary to bifurcated trials. See

Acts 1994, ch. 828, 860, 881.

The law extant in the Commonwealth in 1994 relating to

punishment in felony cases included the provisions of Code

§ 19.2-264.4(B), dealing with capital murder cases, and the

decision in Coppola v. Commonwealth, 220 Va. 243, 257 S.E.2d 797

(1979), interpreting that statute. When Coppola was decided, as

now, the statute provided that in capital murder cases tried by

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jury, "evidence may be presented as to any matter which the

court deems relevant to sentence." The statute goes on to

provide that evidence that may be "admissible, subject to the

rules of evidence governing admissibility," may include certain

facts. Those are "circumstances surrounding the offense, the

history and background of the defendant, and any other facts in

mitigation of the offense."

Continuing, the statute provided that facts in mitigation

may include, but shall not be limited to, the following: "(i)

The defendant has no significant history of prior criminal

activity, or (ii) the capital felony was committed while the

defendant was under the influence of extreme mental or emotional

disturbance or (iii) the victim was a participant in the

defendant's conduct or consented to the act, or (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; or (v) the age of the defendant at the time of the

commission of the capital offense."

In Coppola, a capital murder prosecution tried by jury, the

defendant complained the trial court erroneously excluded the

proffered testimony of his former wife about the adverse effect

upon their two young sons of defendant's arrest and prosecution.

In finding no error, the Court said "discretion is vested in the

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trial court to determine, subject to the rules of evidence

governing admissibility, the evidence which may be adduced in

mitigation of the offense." Coppola, 220 Va. at 253, 257 S.E.2d

at 804.

The Court stated that the proffered evidence "is irrelevant

on the issue of mitigation. It is not analogous to any of the

evidence specifically approved in the statute. The kind of

evidence therein contemplated bears upon the record of the

defendant and the atrociousness of his crime. Evidence of a

good previous record, and extenuating circumstances tending to

explain, but not excuse, his commission of the crime, is

admissible mitigating evidence . . . . But the effect of his

incarceration upon relatives is not a mitigating circumstance

for the jury to consider." Id. at 253-54, 257 S.E.2d at 804.

Against this background, which delineated the types of

factors considered "relevant" in capital cases, the General

Assembly crafted the statute in issue dealing with noncapital

cases. The same standard, relevant admissible evidence related

to punishment, was included. We perceive no sound reason why

the factors that may be considered by a jury in capital murder

cases should not likewise be available for consideration by a

jury in noncapital cases under § 19.2-295.1. The goal of having

an informed jury assess appropriate punishment should be no less

essential merely because a noncapital offense is involved.

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 But this is not a one-way street extending only in the

defendant's direction. The statute also permits the

Commonwealth to introduce "relevant, admissible evidence in

rebuttal" to that offered by the defendant.

Therefore, we hold that a trial court, in determining what

evidence is relevant to punishment under Code § 19.2-295.1 may

be guided in the exercise of its discretion, subject to the

rules of evidence governing admissibility, by the factors set

forth in Code § 19.2-264.4(B), as interpreted in Coppola. The

kind of evidence contemplated by § 19.2-295.1 bears upon the

record of the defendant and the nature of his crime. Evidence

of a good previous record, and extenuating circumstances tending

to explain, but not excuse, the commission of the noncapital

crime is admissible mitigating evidence. * And, a trial court's

discretionary ruling on this issue should not be disturbed on

appeal absent a clear abuse of discretion. Coe v. Commonwealth,

231 Va. 83, 87, 340 S.E.2d 820, 823 (1986).

*
In support of his contention that § 19.2-295.1 should be
interpreted in a restrictive manner, the Attorney General has
advised us that the 1995 General Assembly refused to enact House
Bill No. 2212, which would have added language to the statute
specifically permitting introduction of evidence about "the
history and background of the defendant and any other facts in
mitigation or aggravation of the offense." We are not persuaded
by this information; the legislature may well have determined
that such amendment was unnecessary because the statutory and
case law already so provided.

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 We shall now apply the foregoing principles to the present

cases. Initially, we observe that an appellate court ought to

decide cases based on the record made in the court below. The

appellate court, in fairness to the trial judge, should not

recast the evidence and put a different twist on a question that

is at odds with the question presented to the trial court.

Shifflett is an example of this incorrect technique. The

issue presented to the trial court by the defendant, as we have

demonstrated in our summary of the record, was whether he was

entitled to adduce testimony concerning the impact of his

incarceration upon his family and his employment. Yet, the

Court of Appeals said the girlfriend's testimony was offered to

prove "that Shifflett was a responsible father who worked

earnestly to provide for his children." Shifflett, 26 Va. App.

at 261, 494 S.E.2d at 166. Also, the Court of Appeals said the

employer's testimony was offered to show defendant's "character

and propensities." Id. at 260, 494 S.E.2d at 166. Neither of

these bases for admission of the girlfriend's and the employer's

testimony was urged upon the trial court prior to submission of

the case to the jury to assess punishment, and we shall not use

those grounds to decide this appeal.

Instead, we hold that the trial court, consistent with

Coppola, did not clearly abuse its discretion by refusing to

allow evidence concerning the impact of defendant's

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incarceration upon his family and his employment, and the Court

of Appeals erred in ruling to the contrary.

The Court of Appeals' decision in Taylor presents a similar

problem. It addressed exclusively the facts presented in the

proffer, which the trial court explicitly refused to consider

because it was untimely. The fact that the trial court, in an

alternative ruling, may have erred by deciding the proffered

material was not relevant is beside the point. The record made

in the trial court, before defendant's sentencing was presented

to the jury, was a request by defendant to adduce evidence about

his "life story" that amounted to "a complete open door telling

of everything."

Yet, the Court of Appeals did not address this request made

by defendant before the jury retired. Rather, the appellate

court said the proffered evidence "clearly was relevant to

appellant's background and family situation." We shall not use

the proffered evidence to decide this appeal.

We cannot say that the trial court clearly abused its

discretion by refusing to admit evidence about the defendant's

life history when the defendant made a broad, unrestricted, and

nonparticularized request for "just relating the whole story"

and for "just a complete open door telling of everything," and

the Court of Appeals erred in ruling to the contrary.

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 Consequently, we will reverse the judgment of the Court of

Appeals in Shifflett, and will enter final judgment here

reinstating the sentencing order of the Circuit Court of

Albemarle County. Likewise, we will reverse the judgment of the

Court of Appeals in Taylor, and will enter final judgment here

reinstating the sentencing orders of the Circuit Court of

Arlington County.

Record No. 980187 — Reversed and final judgment.
Record No. 980188 — Reversed and final judgment.

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