Mosby v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Richmond, Virginia

MARVIN LAYER MOSBY
OPINION BY
v. Record No. 1505-95-2 JUDGE SAM W. COLEMAN III
MARCH 4, 1997
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Walter W. Stout, III, Judge
Cullen D. Seltzer, Assistant Public Defender
(David J. Johnson, Public Defender, on
briefs), for appellant.

Robert H. Anderson, III, Assistant Attorney
General (James S. Gilmore, III, Attorney
General; Monica S. McElyea, Assistant
Attorney General, on brief), for appellee.

The defendant, Marvin Mosby, was convicted by a jury of

first degree murder and use of a firearm in the commission of

murder. At the sentencing phase of the bifurcated trial, the

jury recommended a forty-three year sentence, which the judge

imposed. On appeal, the issue is whether, in a noncapital felony

prosecution, the judge is required to instruct the jury during

the sentencing phase of the bifurcated trial that a defendant is

ineligible for parole. We hold that in noncapital felony cases a

trial judge is not required to instruct the jury that the

defendant, if convicted, will be ineligible for parole. We

further hold that no instruction need be given even if the

Commonwealth argues, as it may have done in this case, for a

lengthy sentence because the appellant poses a future danger to
society. Therefore, we affirm the convictions.

Appellant was charged and convicted of having committed

murder on January 2, 1995. Pursuant to Code § 53.1-165.1, an

accused convicted of a felony committed after January 1, 1995 is

ineligible for parole. 1 At the sentencing phase, the appellant

proffered the following jury instruction: "In arriving at your

sentence, you are permitted to consider that Virginia has

abolished parole." The appellant relied upon the United States

Supreme Court's holding and rationale in Simmons v. South
Carolina, 512 U.S. 154 (1994) (plurality opinion), as the basis

for requesting the instruction. In Simmons, the Court held that,

in capital murder cases where the only sentencing options are

death or life imprisonment without parole and where the State

argues for capital punishment to preclude the defendant posing a

future danger to society, due process requires that the jury be

told the life sentence would not include the possibility of

parole. Id. at 161-62.

The Commonwealth objected to appellant's proposed

instruction and pointed out that Virginia has never allowed

1
Code § 53.1-165.1. -- Limitation on the application
of parole statutes. The provisions of this
article, except §§ 53.1-160 and 53.1-160.1,
shall not apply to any sentence imposed or to
any prisoner incarcerated upon a conviction
for a felony offense committed on or after
January 1, 1995. Any person sentenced to a
term of incarceration for a felony offense
committed on or after January 1, 1995, shall
not be eligible for parole upon that offense.

- 2 -
juries to consider parole status when determining sentence. The

Commonwealth argued that the holding in Simmons is limited to

capital cases. The trial judge ruled that Simmons did not apply

and refused to instruct the jury on the subject.

During the Commonwealth's argument to the jury on

sentencing, the Commonwealth's attorney said:When you sentence

Marvin Mosby you send a message to him, and what I'm going to ask

you to do on behalf of the Commonwealth is to send him a message

that tells him what the value of human life is. I'm going to ask

you to send him a message that reflects the bravery of a young

mother who would come forward and testify against someone she

knows or for someone she never met and I'm going to ask you to

sentence him in a way that tells him how you feel about gunning

someone down and assuming that no one who saw it will tell. With

your sentence you can send Marvin Mosby a message about how you

feel about doing that and then doing everything you can to

perpetrate that fear that makes all those people that were out
2
there according to the witnesses not say what they saw.
2
For purposes of this opinion, we accept the defendant's
characterization of the argument as being for a sentence that
would reduce the defendant's future dangerousness to society. We
do not, however, find that the Commonwealth's attorney
specifically argued for a lengthy sentence that would remove the
appellant as a future danger to society. Although consideration
of a defendant's potential for future criminal conduct may
implicitly play a role in every sentencing determination, see
Jurek v. Texas, 428 U.S. 262, 275 (1976) (plurality opinion), the
only expressed arguments by the Commonwealth's attorney are for a
sentence that will punish the accused for the taking of a human
life and that takes into account that the murder was frightening
and intimidating to the witnesses.

- 3 -
 After deliberating on the sentence for seven minutes, the

jury returned with the following question: "[W]e were unclear as

to the status of parole in the State of Virginia and [would] like

an answer to that." The trial judge responded to the question by

stating, "the status of the law is that at this time the

legislature has set a range [of punishment] that you are to

consider, that range has been given to you in your instructions

and what happens after that is set by other [parameters] that are

not to concern you. . . ." After further deliberation, the jury

returned with a sentence recommendation of forty years on the

first degree murder charge and three years on the charge of using

a firearm in the commission of a murder.
In Simmons, the defendant was convicted of capital murder

and sentenced to death. 512 U.S. at 157. Under South Carolina

law, the only sentencing choices available to the jury were death

or life in prison without the possibility of parole. Id. at 158.

During the penalty phase of the trial, the prosecution argued to

the jury that the defendant should be sentenced to death because

otherwise he would pose a future danger to society. Id. at 157.

Future dangerousness of a defendant convicted of murder is one

of several predicates that must exist before a murderer may be

sentenced to death. Id. at 162; see also California v. Ramos,

463 U.S. 992, 1003 n.17 (1983). The defendant in Simmons

requested that the jury be informed he was ineligible for parole

in order to rebut the prosecution's argument of future

- 4 -
dangerousness. However, the trial judge refused to tell the jury

that life imprisonment in Simmons' case meant life without

parole. Simmons, 512 U.S. at 160. The jury asked the judge

during deliberations whether the imposition of a life sentence

carried with it the possibility of parole. In response to the

question, the judge instructed the jury that they were not to

consider parole in reaching a decision. Id.

The Supreme Court held in Simmons that South Carolina

violated the defendant's due process rights when it sought a

death sentence based on a claim that the defendant would be a

future danger to society while, at the same time, arguing that

the jury was not entitled to know that a life sentence excluded

the possibility of parole, which ostensibly would eliminate the

defendant as a threat to society. "The Due Process Clause does

not allow the execution of a person 'on the basis of information

which he had no opportunity to deny or explain.'" Id. at 161

(quoting Gardner v. Florida, 430 U.S. 349, 362 (1977)); see also
id. at 178 (O'Connor, J., concurring) ("Where the State puts the

defendant's future dangerousness in issue, and the only available

alternative sentence to death is life imprisonment without

possibility of parole, due process entitles the defendant to

inform the capital sentencing jury . . . that he is parole

ineligible.").

The appellant argues that the rationale which the Court

applied in Simmons supported an instruction on parole

- 5 -
ineligibility in this case where a controlling factor in

determining the length of sentence was the appellant's future

dangerousness. We reject the appellant's invitation to adopt the

Simmons rationale as a basis for requiring trial judges in

noncapital felony prosecutions to inform juries that a defendant

is not entitled to parole, even in those instances where the

Commonwealth expressly argues that the defendant poses a threat

to society and requests a lengthy sentence. As a general

proposition, states have the right to determine what trial courts

must tell juries about sentencing and parole. Id. at 168. In

Simmons, the Supreme Court explained:
In a State in which parole is available, how
the jury's knowledge of parole availability
will affect the decision whether or not to
impose the death penalty is speculative, and
we shall not lightly second-guess a decision
whether or not to inform a jury of
information regarding parole. States
reasonably may conclude that truthful
information regarding the availability of
commutation, pardon, and the like, should be
kept from the jury in order to provide
"greater protection in [the States'] criminal
justice system than the Federal Constitution
requires."

Id. (quoting California v. Ramos, 463 U.S. 992, 1014 (1983)); see

also id. at 176-77 (O'Connor, J., concurring). In Virginia,

juries generally are permitted to fix the recommended sentence

based solely on the nature of the crime and the circumstances

surrounding it. Information concerning the status of a

defendant's eligibility for parole has traditionally and

consistently been withheld from juries in both capital and

- 6 -
noncapital criminal cases. Although juries in Virginia may now

consider a defendant's prior criminal record in bifurcated

trials, "Virginia is committed to the proposition that the trial

court should not inform the jury that its sentence, once imposed

and confirmed, may be set aside or reduced by some other arm of

the State." Hinton v. Commonwealth, 219 Va. 492, 495, 247 S.E.2d

704, 706 (1978); see also Eaton v. Commonwealth, 240 Va. 236,

248-49, 397 S.E.2d 385, 392-93 (1990), cert. denied, 502 U.S. 824

(1991); Williams v. Commonwealth, 234 Va. 168, 178-80, 360 S.E.2d
361, 367-68 (1987), cert. denied, 484 U.S. 1020 (1988).

The Simmons decision clearly requires that juries in

Virginia must be informed of parole ineligibility when the

Commonwealth argues future dangerousness in capital cases. See

Mickens v. Commonwealth, 249 Va. 423, 457 S.E.2d 9 (1995).

However, Simmons imposes no such requirement in noncapital cases.

As the Court in Simmons pointed out, in a capital case where the

only sentencing choice is death or life imprisonment without

parole, a false choice of sentencing options is given to the jury

if they are not told that life imprisonment means a life sentence

without the possibility of parole. See Simmons, 512 U.S. at 161.

Appellant's case was not a capital case. No false choice was

presented here because the jury was instructed on a range of

incarceration, from twenty years to life, that could be imposed.

Therefore, Simmons does not apply.

Because Simmons does not apply to this case, the established

- 7 -
Virginia law controls; a trial judge is not required to instruct

juries on the status of a defendant's eligibility for parole.

See Hinton, 219 Va. at 495, 247 S.E.2d at 706. Appellant argues,

nevertheless, that recent legislative changes in the law reflect

a shift in Virginia's former policy which should require that

juries now be told of a convicted felon's ineligibility for

parole. He argues that the abolition of parole, the revisions to

the Virginia Sentencing Guidelines, and the bifurcation of jury

trials are measures which were designed to provide sentencing

juries with as much relevant sentencing information as possible.

Thus, because these changes have increased the amount of

information to which jurors are entitled, the appellant contends

that the jurors in his case should have been told that he was

ineligible for parole.
The appellant urges this Court to construe Code

§ 19.2-295.1, which provides for bifurcated jury sentencing and

the admissibility of the defendant's record of prior criminal

convictions, to also require that the sentencing jury be informed

about parole ineligibility. Code § 19.2-295.1 allows the

Commonwealth to present evidence of the defendant's prior

criminal convictions, which includes the conviction orders that

show length of prior sentences, Gilliam v. Commonwealth, 21 Va.
App. 519, 524, 465 S.E.2d 592, 594-95 (1996), and convictions a

defendant receives after the date of the offense for which the

defendant is on trial, Bunn v. Commonwealth, 21 Va. App. 593,

- 8 -
598, 466 S.E.2d 744, 747 (1996). 3 Furthermore, under Code

§ 19.2-295.1 a defendant is allowed to introduce mitigating

evidence even if the Commonwealth introduces no evidence of prior

convictions, Pierce v. Commonwealth, 21 Va. App. 581, 466 S.E.2d

130 (1996). Based on the effect of the changes brought by the

enactment of Code § 19.2-295.1, appellant argues that a jury

should be told that the defendant will have to serve the entire

sentence, particularly where, as here, the jury inquires about

parole eligibility or where it may be apparent from prior

conviction orders that prior sentences have not been fully

served. He contends that a jury that is fully informed about a

defendant's criminal history and other relevant information as

permitted by Code § 19.2-295.1 cannot make a reasoned and

intelligent sentencing decision unless it is informed as to the

true nature of the sentence it is imposing. However, Code

§ 19.2-295.1 contains no provision requiring that the jury be

told of a defendant's parole ineligibility, and we are not at

liberty to create one where it does not exist. See King v.

Commonwealth, 6 Va. App. 351, 355, 368 S.E.2d 704, 706 (1988).

The post-sentencing factors or occurrences that may affect

the amount of sentence that a convict ultimately serves, whether

3
Although decided after oral argument in this case, Folson
v. Commonwealth, 23 Va. App. 521, 478 S.E.2d 316 (1996), also
supports the appellant's argument. In Folson, we held that the
"record of conviction" includes not only the conviction orders,
but also other relevant evidence, such as the indictments for the
prior convictions.

- 9 -
they be good time credits, penalties for institutional

infractions, or parole eligibility or ineligibility, are

traditionally not factors that juries in Virginia have been

permitted to consider in determining sentence. While the

appellant's policy argument and reliance upon the enactment of

Code § 19.2-295.1 have appeal, barring a constitutional mandate

that a sentencing jury be told of parole ineligibility as existed

in Simmons, any change in the current law must come from the

General Assembly or the Virginia Supreme Court.
Accordingly, we hold that the trial court did not err by

refusing to instruct the jury on the status of parole in

Virginia, and we affirm the appellant's convictions.

Affirmed.

- 10 -