Walker v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Overton
Argued at Richmond, Virginia

ROBERT MACK WALKER
OPINION BY
v. Record No. 2948-95-2 JUDGE NELSON T. OVERTON
JUNE 17, 1997
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Patricia P. Nagel, Assistant Public Defender
(David J. Johnson, Public Defender, on
brief), for appellant.

Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.

Robert Mack Walker was convicted by a jury of forgery,

uttering, grand larceny, and two counts of robbery. He appeals,

claiming that (1) the evidence is insufficient to support the

convictions for forgery, uttering, grand larceny, and robbery;

and (2) he should have been granted a proffered instruction

informing the jury that parole has been abolished in Virginia.

I. Facts

On August 7, 1995, just before midnight, Mary Person and her

aunt were stopped at a Race Trac Gas Station off Midlothian

Turnpike in southside Richmond. When Person was getting back

into her car and about to shut the door, the door flew open. A

man later identified by Person as Robert Mack Walker threw his

shoulder into hers and pushed her over. Walker drew a knife and

put it in Person's side and asked for all of her money. Person
threw her pocketbook and her aunt's pocketbook at Walker. When

another motorist drove up, Walker fled with Person's wallet.

The next day Walker presented two of the checks stolen from

Person's purse to two tellers at separate First Virginia Bank

branches. For the first he received $300; the other was refused.

He was subsequently indicted for two counts of forgery, two

counts of uttering, one count of grand larceny, and two counts of

robbery.
At trial, Person testified that her checkbook had been in

her wallet. She identified checks numbered 525 and 526 as coming

from the stolen checkbook, and she stated that the signature on

the checks was not hers. Person later identified Walker from a

photospread.

Lisa Cooper, a teller at First Virginia Bank, testified that

she handled check 526 on August 8, 1995, the day after the

robbery, made out to Robert Walker. She identified the teller

stamp and her handwriting on the back. She testified that the

identification card she examined bore the photograph of the same

man who cashed the check. The information that she copied from

the identification card matched the personal information from

Walker's identification card. Six photos from the bank's

security camera corroborated Walker's presence at the bank at the

time.

James Carter, a teller at another First Virginia Branch,

also testified that Walker gave him a check on August 8, 1995.

2
He copied Walker's personal information from Walker's

identification onto the back of the check. He also checked

whether the person presenting the check was the same person as

the identification card represented. When Carter was handed the

check to identify at trial, both he and the Commonwealth's

attorney called it check 526, the same number as the check that

Cooper had identified. Both checks 525 and 526 were admitted

into evidence.
Walker testified on his own behalf. He stated that he had

been at the gas station at approximately the time of the robbery.

He also admitted receiving one of the checks from an

acquaintance on August 8, 1995. Walker testified that he had

done some painting for a woman named Elaine, and he thought the

check was in return for that work, the E. in Mary E. Person

standing for Elaine. He took the check to the first bank and

cashed it. He denied receiving the second check and denied ever

going to the second branch.

At the close of the Commonwealth's evidence, defendant moved

to strike because of the discrepancy in the check numbers.

Defendant argued that check 526 was identified by both tellers as

the check they handled. The court agreed that the Commonwealth's

attorney handed one of the witnesses the wrong check, but

overruled the motion to strike. The defendant renewed his motion

at the close of all evidence and was again overruled. The jury

found the defendant guilty on all counts.

3
 Before the jury deliberated on sentencing, the defendant

offered a jury instruction stating that the Commonwealth of

Virginia has abolished parole for all felonies that were

committed after January 1, 1995. The judge ruled that, because

this was not a capital murder case, he was refusing the

instruction. The jury fixed Walker's sentence at ten years for

each robbery count, two years for each forgery count, six months

on each uttering count, and one year for the grand larceny.
At the sentencing, Walker rearticulated the argument for the

previous motion to strike and moved to set aside the verdict. He

argued that both tellers identified the same check and that

therefore all the convictions should be set aside. The judge

agreed that evidence was lacking on one check, although he was

not sure which. He refused to set aside the convictions on both

checks, stating that "one of them was obvious" and that the

Commonwealth merely "made a mistake on the check and gave the

witness the wrong check." He did set aside the forgery and

uttering convictions on check number 526.

II. Sufficiency of the Evidence

A.

We hold that the evidence is sufficient to support the

convictions for forgery, uttering, and grand larceny. "Larceny

is defined as the wrongful or fraudulent taking of personal goods

of some intrinsic value, belonging to another, without his

assent, and with the intention to deprive the owner thereof

4
permanently." Jones v. Commonwealth, 3 Va. App. 295, 300, 349

S.E.2d 414, 417 (1986). If the goods are valued at $200 or more,

the offense is grand larceny. See Code § 18.2-95. Walker

admitted receiving $300 from the bank in return for one of the

forged checks. The evidence is sufficient for a jury to conclude

that Walker fraudulently induced the bank to give him this money

and that he did not intend to return it. All of the elements of

grand larceny having been established, we affirm this conviction.
All of the elements of forgery are also established.

"Forgery is the false making or materially altering with intent

to defraud, of any writing which, if genuine, might apparently be

of legal efficacy, or the foundation of legal liability." Moore

v. Commonwealth, 207 Va. 838, 841, 153 S.E.2d 231, 233 (1967);

Bullock v. Commonwealth, 205 Va. 558, 561, 138 S.E.2d 261, 263

(1964). Person testified that the signature on the checks was

not her own. By presenting the checks to the bank tellers,

Walker demonstrated a clear intent to defraud. The checks were

therefore forged. The evidence does not prove conclusively that

Walker himself signed Person's name on the checks, but such proof

is not required. "Possession of a forged check by an accused,

which he claims as a payee, is prima facie evidence that he

either forged the instrument or procured it to be forged."

Fitzgerald v. Commonwealth, 227 Va. 171, 174, 313 S.E.2d 394, 395

(1984). Walker admitted the possession of one of the two forged

checks in evidence, whether number 525 or number 526. The jury

5
was therefore entitled to believe beyond a reasonable doubt that

Walker either forged the check or procured it to be forged. The

record supports a conviction for forgery.

Uttering is an offense separate from forgery. See Bateman

v. Commonwealth, 205 Va. 595, 599, 139 S.E.2d 102, 105 (1964);

Johnson v. Commonwealth, 102 Va. 927, 929, 46 S.E. 789, 790

(1904). "The word 'utter' is defined in Black's Law Dictionary,

4th ed., page 1716, as meaning 'To put or send [as a forged

check] into circulation. * * * to utter and publish.' It is an

assertion by word or action that a writing known to be forged is

good and valid." Bateman, 205 Va. at 599-600, 139 S.E.2d at 106

(alteration in original). Walker's possession of the forged

check allows the inference that Walker knew it to be forged.

Walker clearly put this forged check into circulation, as

evidenced by, inter alia, his presence at the bank captured on a

bank security camera and his own admission. The fact that the

two check numbers were confused at trial does not alter this

fact. The conviction for uttering is affirmed.

B.

Walker attacks his robbery convictions on the ground that

Person's identification was incredible. Person's testimony is

clearly not incredible. She chose him from a lineup, and her

identification was later verified by the fact that Walker

admitted his presence at the gas station and was found in

possession of her checks the next morning. The credibility of

6
the witness and the weight accorded her testimony "are matters

solely for the fact finder, who has the opportunity to see and

hear that evidence as it is presented." Sandoval v.

Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995);

see Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735,

736-37 (1985).

Furthermore, sufficient evidence was present to prove that

Walker was the robber, even without the eyewitness

identification. The jury rejected the defendant's explanation

for his possession of the check, and in doing so inferred his

consciousness of guilt from that lie. See Welch v. Commonwealth,

15 Va. App. 518, 525, 425 S.E.2d 101, 106 (1992). "A defendant's

false statements are probative to show he is trying to conceal

his guilt, and thus is evidence of his guilt." Rollston v.

Commonwealth, 11 Va. App. 535, 548, 399 S.E.2d 823, 831 (1991)

(citing Carter v. Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865,

867 (1982)). Accordingly, the robbery convictions are affirmed.

III. Jury Instruction

Walker next argues that the trial judge erred by refusing an

instruction informing the jury that Walker was ineligible for

parole under Virginia law. The proffered instruction read:
The Commonwealth of Virginia has abolished
parole for all felonies that were committed
1
after January 1, 1995.

1
We note that this instruction is not entirely accurate as a
matter of law. Exceptions to this general statement exist in the
Code. See, e.g., Code § 19.2-311 (granting a discretionary
exception for persons between the age of eighteen and twenty-one

7
The trial judge ruled that because this was not a capital case,

he would not instruct the jury about parole considerations,

adding, "It is none of their business."

A.

Virginia has a long and honored system of jury sentencing.

Juries have been empowered to sentence their peers in the

Commonwealth from as early as 1776. See 9 Laws of Va. 170

(Hening 1821); see also Note, Jury Sentencing in Virginia, 53 Va.

L. Rev. 968, 971 (1967). This phenomenon did not arise by

accident; the General Assembly made a conscious decision to

depart from the common law, under which the court sentenced the

defendant. See Mackaboy v. Commonwealth, 4 Va. (2 Va. Cas.) 268,

271 (1821) (noting that the statute in question was copied from

an older law, "with this difference only, that by our Law the

fine as assessed by the jury, and under the English Laws, by the

Justices"). Our tradition continues today. Only seven other

states allow the jury to sentence offenders in noncapital cases.
See Ark. Code Ann. §§ 5-4-103, 16-90-107 (WESTLAW through 1995

Sess.); Ky. Rev. Stat. Ann. § 532.055(2) (West, WESTLAW through

1996 Reg. Sess.); Miss. Code Ann. §§ 97-3-67, 97-3-71 (WESTLAW

through 1996 Reg. Sess.) (limited powers); Mo. Ann. Stat.

§ 557.036 (Vernon, WESTLAW through 1996 2d Reg. Sess.) (limited

powers); Okla. Stat. Ann. tit. 22, §§ 926-928 (West, WESTLAW

convicted of a felony not punishable as a Class 1 felony); Code
§ 53.1-40.01 (allowing petitions for parole from older prisoners
convicted of a felony other than a Class 1 felony).

8
through 1996 2d Reg. Sess.); Tenn. Code Ann. §§ 40-20-104,

40-20-107 (WESTLAW through 1996 2d Reg. Sess.); Tex. Code Crim.

Proc. Ann. art 37.07 (West, WESTLAW through 1995 Reg. Sess.).

When juries set sentences, they may consider certain

information. The Supreme Court of Virginia definitively set

forth the rule over sixty years ago:
These jurors should have been told that it
was their duty, if they found the accused
guilty, to impose such sentence as seemed to
them to be just. What might afterwards
happen was no concern of theirs.

Coward v. Commonwealth, 164 Va. 639, 646, 178 S.E. 797, 800

(1935). Over time the Court has reiterated Virginia's commitment

to this principle, even while recognizing that other

jurisdictions may not agree. See Hinton v. Commonwealth, 219 Va.

492, 495, 247 S.E.2d 704, 706 (1978) (noting the existence of

contrary cases). As the Supreme Court has stated, the correct

response when the jury asks about parole is:
The only response I can give you on that
. . . is that it's the function of the jury,
duty of the jury, to impose such sentence as
they consider just under the evidence and the
instructions of the Court.
And you should not concern yourself with
what may thereafter happen.

Peterson v. Commonwealth, 225 Va. 289, 296-97, 302 S.E.2d 520,

525 (1983); see also Clagett v. Commonwealth, 252 Va. 79, 94, 472

S.E.2d 263, 272 (1996); Wansley v. Commonwealth, 205 Va. 412,

416, 137 S.E.2d 865, 868 (1964); Jones v. Commonwealth, 194 Va.

273, 274, 72 S.E.2d 693, 694 (1952); Virginia Model Jury

9
Instruction I-25. Our long line of precedents has led this Court

to remark that "[i]t is well-established in Virginia that a jury

is not to concern itself with post-sentencing events." Kitze v.

Commonwealth, 15 Va. App. 254, 260, 422 S.E.2d 601, 605 (1992),

rev'd on other grounds, 246 Va. 283, 435 S.E.2d 583 (1993)

(agreeing that the jury has no right to be advised of

post-sentencing events); see also Mosby v. Commonwealth, 24 Va.

App. 284, 482 S.E.2d 72 (1997).
The principal rationale underlying our system of sentencing

is founded in the basic concept of separation of the branches of

government. The assessment of punishment lies within the purview

of the judicial branch; the administration of such punishment

within that of the executive branch. The rule in Virginia aims

to preserve, as effectively as possible, the separation of these

functions. See Hinton, 219 Va. at 496, 247 S.E.2d at 706;

Coward, 164 Va. at 646, 178 S.E. at 799-800; Dingus v.

Commonwealth, 153 Va. 846, 852, 149 S.E. 414, 415 (1929). The

jury's duty is to sentence the defendant according to the

evidence in the trial and within the limits set by the General

Assembly for the crimes committed. Pardons, parole, credit for

good behavior, and the like are factors outside of the scope, and

certainly the control, of the jury. Consideration of these

possibilities should not hamper the jury's ability to perform its

duty.

Other secondary reasons have been advanced to support

10
Virginia's policy. In Fitzgerald v. Commonwealth, 249 Va. 299,

455 S.E.2d 506 (1995), cert. denied, 116 S. Ct. 1279 (1996), the

Supreme Court of Virginia affirmed the refusal of a jury

instruction which stated:
The court instructs the jury that under
Virginia law any person convicted of three
separate felony offenses of murder, rape or
robbery by the presenting of firearms or
other deadly weapon or any combination of the
offenses of murder, rape or robbery when such
offenses were not part of a common act,
transaction or scheme shall not be eligible
for parole.

Id. at 305, 455 S.E.2d at 510. The Court found that, were the

jury to consider this instruction, it would be determining law

rather than fact, thus invading the realm of the judge. "The

question whether an accused is parole eligible in Virginia is a

question of law that may not be considered by a jury." Id. at

306, 455 S.E.2d at 510.

On a more practical level, consideration of post-sentencing

events would lead the jury to speculate as to the probable time

actually served on a sentence. To inform the jury that credit

for good behavior exists may invite the jury to attempt to

compensate for the credit, resulting in a sentence longer than

the jury intended to impose. See Coward, 164 Va. at 642, 178

S.E. at 798. Similarly, if the jury is informed of credit for

good behavior, to be fair it should also be informed of the

workings of the parole system, the possibility of pardons,

work-release programs, commitments to the Department of Mental

11
Health, and every other alternative method which may affect the

amount of time the defendant may actually be confined. This

sheer volume of information would pose a tremendous obstacle to

efficient and just jury sentencing.

B.

In the instant case, Walker asserts that Simmons v. South

Carolina, 512 U.S. 154, 114 S. Ct. 2187 (1994), requires the

judge to grant an instruction informing the jury that the

defendant is not eligible for parole. The constitutional

requirements of Simmons do not apply to noncapital felony cases.
See Mosby, 24 Va. App. at 290, 482 S.E.2d at 74. Instead, the

general rule governs. A state may make its own determination

about what a jury will or will not be told about sentencing. See

California v. Ramos, 463 U.S. 992, 1014 (1983). "[T]he wisdom of

the decision to permit juror consideration of [post-sentencing

events] is best left to the States." Id.; see Simmons, 512 U.S.

at 183, 114 S. Ct. at 2204 (Scalia, J., dissenting).

Code § 19.2-295.1 provides, in pertinent part:
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
such evidence of prior convictions, or if no
such evidence is introduced, the defendant
may introduce relevant, admissible evidence
related to punishment.

The question before us today is whether parole eligibility

is "relevant to punishment." In the past, the Supreme Court of

12
Virginia has made it abundantly clear that it is not.

"Information regarding parole eligibility is not relevant

evidence to be considered by the jury." Eaton v. Commonwealth,

240 Va. 236, 248, 397 S.E.2d 385, 392 (1990) (citing Spencer v.

Commonwealth, 240 Va. 78, 85, 393 S.E.2d 609, 613 (1990)); see

Watkins v. Commonwealth, 238 Va. 341, 351, 385 S.E.2d 50, 56

(1989); Williams v. Commonwealth, 234 Va. 168, 178-80, 360 S.E.2d

361, 367-68 (1987); Poyner v. Commonwealth, 229 Va. 401, 418-19,

329 S.E.2d 815, 828 (1985).
Walker argues that because the General Assembly has now

abolished parole for all persons convicted of felonies committed

after January 1, 1995, that fact has become relevant to

punishment. We disagree.

We doubt not that the jury's beliefs about parole may

influence, in some cases, a jury's decision on the length of the

sentence, although Walker does not argue this theory on brief and

we can find no empirical evidence to support it. 2 Merely because

a fact may influence a jury's decision, however, does not render

it relevant within the meaning of the statute.

Our Supreme Court has found that the jury may consider
2
See generally Virginia Criminal Sentencing Commission 1996
Annual Report 32 (1996) (noting that "[i]t has been speculated
that juries may not be fully aware of the implications of parole
abolition and truth in sentencing and may be inflating their
sentences"); Robert A. Weninger, Jury Sentencing in Noncapital
Cases: A Case Study of El Paso County, Texas, 45 J. Urb. &
Contemp. L. 3, 13 (1994) (asserting without support that "almost
everyone understood that only rarely would the offender serve the
entire sentence").

13
"evidence in mitigation of the offense relevant to the

defendant's past record and the nature of his conduct in

committing the crime." Coppola v. Commonwealth, 220 Va. 243,

254, 257 S.E.2d 797, 805 (1979); see Sheppard v. Commonwealth,

250 Va. 379, 391, 464 S.E.2d 131, 138 (1995). Additionally,

victim impact statements are also relevant to punishment, at

least in capital sentencings. See Weeks v. Commonwealth, 248 Va.

460, 476, 450 S.E.2d 379, 389 (1994). The specific harm caused

by the defendant is probative of "'the defendant's moral

culpability and blameworthiness.'" Weeks, 248 Va. at 476, 450

S.E.2d at 390 (quoting Payne v. Tennessee, 501 U.S. 808, 835

(1991)). These factors are relevant to punishment because they

concern the defendant himself, the nature of the offense, and the

effects of his offense. See Mosby, 24 Va. App. at 292, 482

S.E.2d at 75.

In contrast, the Virginia Supreme Court has also ruled on

several types of information not relevant to punishment.

"Evidence as to the result of another defendant's trial for the

same crime is irrelevant to the determination by the jury of the

appropriate punishment for the defendant whose sentence is being

weighed." Coppola, 220 Va. at 254, 257 S.E.2d at 805; Sheppard,

250 Va. at 390-91; 464 S.E.2d at 138. Under the mandated

statutory review of capital cases, the Supreme Court must compare

the sentence in a particular case to similar cases, but a jury

has no such responsibility. See id. The Supreme Court has also

14
held that a jury should not consider "residual doubt" about guilt

while sentencing, see Stockton v. Commonwealth, 241 Va. 192, 211,

402 S.E.2d 196, 207 (1991), nor the possibility that

later-discovered evidence may demonstrate the innocence of the

defendant. See Frye v. Commonwealth, 231 Va. 370, 393, 345

S.E.2d 267, 283 (1986). All of these factors might tend to

influence a jury's decision as to the amount of confinement, but

they are not "relevant to punishment."
Relevant factors concern the defendant's character — his

past record and moral culpability at time of the offense — and

the offense itself — the nature of the defendant's behavior and

the impact on the victim. Those not relevant to sentencing

concern independent events occurring after the offense — a

codefendant's trial, residual doubt by the jury, or the

possibility of new evidence. These factors involve matters over

which the defendant has no control and for which he has no blame.

Whether or not the defendant is eligible for parole falls

squarely within the second category. This rationale is further

supported by the fact that all convicted felons are now parole-

ineligible: that status now has absolutely no dependence on a

particular defendant's character or culpability.

We are not persuaded by the argument that the jury will

impose a more severe sentence under the false belief that parole

exists. A jury is charged to fix a sentence within the statutory

range, commensurate with the nature of the offense. We shall not

15
presume that our juries routinely disobey this charge by

speculating as to parole possibilities. 3

We note that an instruction informing the jury that parole

has been abolished may mislead the jury into thinking that the

defendant will serve all of the time it imposes; under the Code a

convicted felon is still entitled to accumulate credit for good

behavior. See Code § 53.1-202.3. 4 Additionally, because parole

has not been absolutely abolished, see note 1, supra, the jury

would have to make a legal determination that this defendant is

in fact ineligible for parole: a role reserved for the judge.
See Fitzgerald v. Commonwealth, 249 Va. 299, 306, 455 S.E.2d 506,

510 (1995), cert. denied, 116 S. Ct. 1279 (1996). Finally, the

trial judge, who is aware of the parole laws, has the power to

modify any jury sentence, within statutory limits. A defendant

given an extraordinarily harsh sentence, therefore, has recourse.

"[U]nder the Virginia practice, the punishment as fixed by the

jury is not final or absolute, since its finding on the proper

punishment is subject to suspension by the trial judge, in whole
3
The jury in this case was instructed to sentence Walker to
life imprisonment or a period of not less than five years on each
of the two robbery charges. The jury fixed the sentence at ten
years for each charge, leading the trial judge to comment, when
asked to reduce the sentence, "I really don't see where the
verdicts are out of line, probably more accurate than the
sentencing guidelines."
4
The Code allows a prisoner convicted of a felony committed
after January 1, 1995, to earn a maximum credit of four and
one-half days for each thirty days served. Therefore, a prisoner
has the potential to serve only 85% of his time, or eight and
one-half years out of every ten sentenced.

16
or in part, on the basis of any mitigating facts that the

convicted defendant can marshal." Vines v. Muncy, 553 F.2d 342,

349 (4th Cir. 1977). While judges in the Commonwealth typically

respect the jury's recommendation, modification of a jury's

sentence is not uncommon. 5

Juries in Virginia are neither required nor entitled to

consider parole eligibility, either by the federal Constitution

or the law extant in the Commonwealth. This rule is based on the

separation between the branches of government as well as

compelling practical considerations. The recent amendment to the

parole laws does not require us to depart from the rule. We find

that Walker was not entitled to his requested instruction.
For the reasons stated, we affirm the convictions.

Affirmed.

5
In 1996, judges modified 20% of the total number of jury
sentences reported to the Virginia Criminal Sentencing
Commission. See Annual Report at 34.

17
Annunziata, J., concurring.

The disposition of this appeal is governed by the recent

decision of a panel of this Court in Mosby v. Commonwealth, 24

Va. App. 284, 482 S.E.2d 72 (1997). I write to address further

the issue whether the abolition of parole in Virginia for all

felony offenses, under Code § 53.1-165.1, is "relevant . . .

evidence related to punishment" in a bifurcated sentencing

proceeding under Code § 19.2-295.1.
Under the former unitary trial procedure, before the

abolition of parole for all felony offenses, the principle was

well established 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). Both

appellant and the dissent argue that the General Assembly ipso

facto rendered this principle a nullity by making "fundamental

changes" in felony sentencing procedures, viz., by bifurcating

the guilt and sentencing aspects of trial, and by abolishing

parole for all felony offenses. I find their position

unsupported either in controlling case precedent or by the acts

of the General Assembly.

The bifurcated felony trial was not unknown in the

Commonwealth prior to the enactment of Code § 19.2-295.1. Such

was, and continues to be, the trial procedure in the prosecution

of capital murder offenses. Gilliam v. Commonwealth, 21 Va. App.

18
519, 523, 465 S.E.2d 592, 594 (1996). In the context of

bifurcated capital murder trials conducted prior to the enactment

of Code § 19.2-295.1, the Supreme Court consistently applied the

well established principle that information concerning parole

eligibility is not relevant evidence to be considered by the

jury. See Eaton v. Commonwealth, 240 Va. 236, 248, 397 S.E.2d

385, 392 (1990), cert. denied, 502 U.S. 824 (1991) ("Information

concerning parole eligibility is not relevant evidence to be

considered by the jury."); King v. Commonwealth, 243 Va. 353,
368, 416 S.E.2d 669, 677, cert. denied, 506 U.S. 957 (1992).

When enacting Code § 19.2-295.1, the General Assembly did

not identify the specific evidence related to punishment that it

considered "relevant" for the jury's consideration during the

sentencing phase of a bifurcated felony trial. Pursuant to

established principles of statutory construction, however, this

Court has repeatedly interpreted the legislature's decision to

expand the bifurcated trial procedure to all felony jury trials

in light of the principles developed in the context of capital

murder trials. See Gilliam, 21 Va. App. at 522-23, 465 S.E.2d at

594; Bunn v. Commonwealth, 21 Va. App. 593, 598, 466 S.E.2d 744,

746 (1996). Applying the same principles here, the conclusion

follows that evidence regarding parole is not relevant evidence

related to punishment under Code § 19.2-295.1.

Both appellant and the dissent argue that such analysis is

no longer controlling in light of the United States Supreme

19
Court's decision in Simmons v. South Carolina, 512 U.S. 154, 114

S. Ct. 2187 (1994), which "substantially abrogated" the principle

that information concerning parole is not relevant evidence

related to punishment in capital cases. Simmons, however, has no

bearing on the question whether the General Assembly's extension

of the bifurcated sentencing proceeding from capital trials to

all felony trials requires that the jury be provided information

concerning parole. The rule of Simmons is "that where the State

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

available alternative sentence to death is life imprisonment

without parole, due process entitles the defendant to inform the

capital sentencing jury . . . that he is parole ineligible."
Mueller v. Murray, 252 Va. 356, 362, 478 S.E.2d 542, 546-47

(1996). The due process rationale of Simmons applies only when

each of the following predicates is met, viz., (1) future

dangerousness is at issue; (2) the jury is faced with a choice

between death and life imprisonment; and (3) the defendant is, in

fact, parole ineligible. See Roach v. Commonwealth, 251 Va. 324,

346, 468 S.E.2d 98, 111, cert. denied, __ U.S. __, 117 S. Ct. 365

(1996); Mosby, 24 Va. App. at 290, 482 S.E.2d at 74. Where the

aforementioned predicates are met, parole ineligibility is

relevant for the jury's consideration: the issue is whether a

defendant who will never be released from incarceration actually

poses a future danger to society. 6 It simply does not follow,

6
While future dangerousness was arguably at issue in the

20
however, that parole ineligibility is relevant for the jury's

consideration in every case simply because a bifurcated

sentencing proceeding is undertaken. 7

Moreover, the enactment of Code § 53.1-165.1 is not the

first act of the General Assembly to abolish parole in Virginia.

In July 1982, the General Assembly abolished parole for three-

time felony offenders. See Code § 53.1-151(B)(1). In that

context, the arguments now raised for instructing the jury on the

abolition of parole were rejected. See Peterson v. Commonwealth,

225 Va. 289, 296-97, 302 S.E.2d 520, 525, cert. denied, 464 U.S.

865 (1983); Williams v. Commonwealth, 234 Va. 168, 178-80, 360

present case, Simmons does not apply here because the jury was

not faced with a choice between death and life imprisonment. See

Mosby, 24 Va. App. at 290, 482 S.E.2d at 74.

7
Indeed, the rationale of Simmons would not obtain even in a

capital sentencing proceeding where a sentence of death was

predicated on "vileness" rather than "future dangerousness,"

notwithstanding the bifurcated nature of the proceeding and the

fact that the defendant was parole ineligible. See Cardwell v.

Commonwealth, 248 Va. 501, 515, 450 S.E.2d 146, 155 (1994), cert.

denied, __ U.S. __, 115 S. Ct. 1826 (1995) (suggesting Simmons

not applicable where punishment fixed upon "vileness" predicate).

The fact of parole ineligibility bears no relation to the

vileness of the crime.

21
S.E.2d 361, 368 (1987), cert. denied, 484 U.S. 1020 (1988). 8

Peterson compels the conclusion that there is no basis for

finding that, by abolishing parole for all convicted felons, the

General Assembly intended to override the principle enunciated

time and again by the Virginia Supreme Court that information

concerning parole eligibility or ineligibility is not relevant

for the jury's consideration.

The United States Supreme Court's decision in Simmons does

8
In Peterson, the Supreme Court of Virginia considered two

questions. First, the propriety of an instruction similar to the

one at issue in this case given in response to a jury question

regarding parole eligibility and, second, whether the

legislature's amendment to Code § 53.1-151(B)(1), which made a

person convicted of three separate offenses of armed robbery

ineligible for parole, required an instruction to that effect.

Turning aside the failure of Peterson to object when the trial

court declined to instruct the jury about his parole

ineligibility and gave instead the instruction approved in
Clanton v. Commonwealth, 223 Va. 41, 54-55, 286 S.E.2d 172,
179-80 (1980), and Hinton v. Commonwealth, 219 Va. 492, 247
S.E.2d 704 (1978), that the jury "should not concern [itself]
with what may thereafter happen," the Supreme Court addressed the
second question regarding the effect of the legislative amendment
on the Court's prior holding. It stated: "We need not consider
the effect of this statutory amendment [which followed Clanton
and Hinton] because we rely upon and reaffirm the principle
enunciated in [those two prior cases] that it is improper to
inform the jury as to the possibility of parole." Peterson, 225
Va. at 297, 302 S.E.2d at 525.

22
not affect such an analysis. Simmons does not support the

proposition that the fact of parole ineligibility alone requires

that the jury be so informed. See Roach, 251 Va. at 346, 468

S.E.2d at 111; Mosby, 24 Va. App. at 290, 482 S.E.2d at 74.

Indeed, while acknowledging the Simmons holding in cases in which

the defendant was parole eligible (or had simply failed to

establish parole ineligibility) and thus was not entitled to the

instruction, the Virginia Supreme Court has persisted in noting

its "consistent[] reject[ion of] efforts to permit jurors to

consider a defendant's parole eligibility or ineligibility." See

Clagett v. Commonwealth, 252 Va. 79, 94, 472 S.E.2d 263, 272

(1996), cert. denied, __ U.S. __, 117 S. Ct. 972 (1997); Joseph

v. Commonwealth, 249 Va. 78, 83-84, 452 S.E.2d 862, 866, cert.

denied, __ U.S. __, 116 S. Ct. 204 (1995) (citing the pre-Simmons

cases of King v. Commonwealth, 243 Va. 353, 368, 416 S.E.2d 669,

677, cert. denied, 506 U.S. 957 (1992), and Yeatts v.

Commonwealth, 242 Va. 121, 127, 410 S.E.2d 254, 258 (1991), cert.
denied, 503 U.S. 371 (1992), for the same principle).

In sum, I find no support in the controlling jurisprudence

of this Commonwealth for the proposition that either the fact of

bifurcation or the fact of parole abolition renders a defendant's

status as parole ineligible relevant evidence for the jury's

consideration at sentencing. It does not follow that the General

Assembly ipso facto rendered this jurisprudence a nullity by

expanding the bifurcated procedure to all felony trials and by

23
abolishing parole for all convicted felons.

To the contrary, nothing in the express language of either

of the applicable Code sections compels the conclusion that the

abolition of parole is relevant evidence for the jury's

consideration. Furthermore, as discussed above, when enacting

Code §§ 19.2-295.1 and 53.1-165.1 the General Assembly was acting

in an area in which the Virginia Supreme Court had already

spoken. As such, the General Assembly "is presumed to [have]

know[n] the law as the Court has stated it and to [have]

acquiesce[d] therein.'" Gilliam, 21 Va. App. at 524, 465 S.E.2d

at 595 (quoting McFadden v. Commonwealth, 3 Va. App. 226, 230,

348 S.E.2d 847, 849 (1986)).

Finally, and perhaps most telling, in 1996 the General

Assembly failed to approve a bill which would have amended Code

§ 19.2-295.1 to read as follows:
Upon request of the Commonwealth or the
defendant, the court shall instruct the jury
that parole has been abolished for felony
offenses occurring on or after January 1,
1995, and on the law regarding the
defendant's eligibility for release.

9
Senate Bill No. 477 (Offered January 22, 1996).

9
The merit of the recommendations made by the Sentencing

Commission to the General Assembly to which the dissent alludes

are not at issue. The issue is how, if at all, the General

Assembly has responded to those recommendations in light of the

established jurisprudence in the Commonwealth. Furthermore,

24
Benton, J., dissenting.

By statute, the General Assembly has mandated that "[a]ny

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." Code § 53.1-165.1. I would hold that

the trial judge erred in denying Walker's proposed instruction,

which would have informed the jury that parole has been abolished

in Virginia. 10 I therefore dissent.
I.

The majority opinion essentially relies upon this Court's

while I agree that important values are at stake in this case,

not the least of which is the value the judicial system places on

informed decision-making by both judge and jury alike, I believe

that, in light of the established law of the Commonwealth, the

issue is one properly left to the General Assembly. In its 1996

Session, the General Assembly plainly rejected a bill which would

have required that juries be instructed with respect to the

abolition of parole. Although the issue was again raised by the

Virginia Criminal Sentencing Commission's 1996 Annual Report, the

General Assembly took no action on the issue in its 1997 Session.

10
"The essence of parole is release from prison, before the

completion of sentence, on the condition that the prisoner abide

by certain rules during the balance of the sentence." Morrissey
v. Brewer, 408 U.S. 471, 477 (1972).

25
recent decision in Mosby v. Commonwealth, 24 Va. App. 284, 482

S.E.2d 72 (1997), and cases decided upon proceedings that arose

under recently abandoned sentencing procedures and before parole

was abolished. 11 Although this Court in Mosby held "that in

11
Citing several capital murder cases in which the jury was

not instructed on parole before the jury imposed the death

penalty, see, e.g., Joseph v. Commonwealth, 249 Va. 78, 83-84,

452 S.E.2d 862, 866, cert. denied, ___ U.S. ___, 116 S. Ct. 204

(1995), the concurring opinion posits that the Supreme Court has

"consistently applied the well-established principle that

information concerning parole eligibility is not relevant." That

analysis ignores the holding in Simmons v. South Carolina, 512
U.S. 154, 171, 114 S. Ct. 2187, 2198 (1994), that when future

dangerousness is at issue a parole ineligible defendant is

entitled as a matter of due process to an instruction on the

unavailability of parole in a capital case. Moreover, the Court

ruled in Joseph that the defendant was eligible for parole. See

249 Va. at 84, 452 S.E.2d at 866; see also Clagett v.
Commonwealth, 252 Va. 79, 94, 472 S.E.2d 263, 272 (1996), cert.

denied, ___ U.S. ___, 117 S. Ct. 204 (1997) (finding that

Clagett, who sought a parole ineligibility instruction for the

sentencing of a non-capital charge, failed to prove he was parole

ineligible). The other death penalty cases cited in the

concurring opinion, King v. Commonwealth, 243 Va. 353, 416 S.E.2d

669 (1992); Eaton v. Commonwealth, 240 Va. 236, 397 S.E.2d 385

26
noncapital felony cases a trial judge is not required to instruct

the jury that the defendant, if convicted, will be ineligible for

parole," id. at 286, 482 S.E.2d at 72, I believe that decision

fails to take into account the effect of the significant

statutory changes in Virginia law.

In addition to abolishing parole, the General Assembly

revised jury sentencing procedures to provide for bifurcated jury

trials in non-capital felony prosecutions. See Code
§ 19.2-295.1. Code § 19.2-295.1 fundamentally changed the nature

of sentencing proceedings in non-capital jury trials. As a

result, the concerns that previously justified depriving the jury

of information concerning parole no longer exist. 12

(1990); and Williams v. Commonwealth, 234 Va. 168, 360 S.E.2d 361

(1987), were all decided before Simmons. The holding in Simmons

now renders the former Virginia rule invalid as to all capital

cases where future dangerousness is an issue. Thus, the formerly

"well-established principle" has been substantially abrogated by

the United States Supreme Court.

12
The concurring opinion states that "the arguments now

raised for instructing the jury on the abolition of parole were

rejected" in Peterson v. Commonwealth, 225 Va. 289, 296-97, 302

S.E.2d 520, 525 (1983). However, the Supreme Court stated that

it "need not consider the effect of [the 1982] . . . statutory

amendment" abolishing parole for repeat offenders. Id. at 297,

27
 Under the previous sentencing scheme, juries in non-capital

cases would both determine guilt and impose a sentence after a

single, unitary trial. The only criteria juries could consider

in sentencing were the range of punishment for the offense and

the facts germane to the commission of the offense. "The theory

of our [previous] unitary jury trial [procedure was] that the

jury [was] to sentence the offense rather than the offender."

Smith v. Commonwealth, 223 Va. 721, 725-26, 292 S.E.2d 362, 365

(1982) (Russell, J., dissenting). Thus, evidence of aggravating

and mitigating factors was not admissible before the jury at the

trial of a non-capital criminal offense. See Weeks v.

Commonwealth, 248 Va. 460, 476, 450 S.E.2d 379, 389-90 (1994);

Duncan v. Commonwealth, 2 Va. App. 342, 345-47, 343 S.E.2d 392,

394-95 (1986). By contrast, under the new procedure, at the

separate sentencing hearing, "the Commonwealth shall present the

defendant's prior criminal convictions," Code § 19.2-295.1, and

the defendant may introduce relevant mitigating evidence. See
Pierce v. Commonwealth, 21 Va. App. 581, 466 S.E.2d 130 (1996).

The new bifurcated procedure therefore permits an inquiry that is

significantly broader in scope. 13

302 S.E.2d at 525. Moreover, the Court held that Peterson failed

to object and the judge correctly declined to raise the issue sua

sponte. See id.

13
The concurring opinion compares today's bifurcated

28
 In addition, within the context of the former unitary trial

procedure, the Supreme Court enunciated the rule that in a

non-capital jury sentencing "the trial [judge] 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).

Significantly, the Supreme Court noted that "[t]he aim of the

rule . . . [was] to preserve, as effectively as possible, the

separation of . . . [the] functions [of the judicial and

executive branches] during the process when the jury is fixing

the penalty, in full recognition of the fact that the average

juror is aware that some type of further consideration will

usually be given to the sentence imposed." Id. at 496, 247

S.E.2d at 706. In crafting the new sentencing scheme, however,

the General Assembly eliminated parole -- the mechanism used by

sentencing scheme, in which parole is undoubtedly unavailable, to

the bifurcated capital murder proceedings that pre-dated the new

law abolishing parole. It is true that juries are given broad

discretion under both schemes. However, the important

distinction is that today juries may be exercising their

discretion under the misconception that parole is still

available. Under the prior capital murder sentence scheme,

juries were correct in their belief that parole was available

and, thus, were not as likely to abuse their discretion.

29
the executive branch to reduce jury sentences. Thus, the need to

separate the sentencing function of the judiciary from the role

of the executive branch in granting parole is no longer a

consideration. 14

The Supreme Court also reasoned in Jones v. Commonwealth,

194 Va. 273, 72 S.E.2d 693 (1952), that a jury should not be

informed of parole eligibility because "[s]uch a practice would

permit punishments to be based on speculative elements, rather

14
I disagree with the conclusion reached in the concurring

opinion that the General Assembly has somehow acquiesced in the

court-made rule announced in Hinton. When the General Assembly

abolished parole and revised the jury sentencing procedure, the

General Assembly ipso facto rendered the Hinton rule a nullity.

The rule was judicially created "to preserve, as effectively as

possible, the separation of . . . [the] functions [of the

judicial and executive branches] during the process when the jury

is fixing the penalty, in full recognition of the fact that the

average juror is aware that some type of further consideration

will usually be given to the sentence imposed." 219 Va. at 496,

247 S.E.2d at 706. Now that the General Assembly has rendered

moot the concern about separation of powers, the judiciary has

complete power to modify the rule that the judiciary itself

created. Changed circumstances and the imperative to avoid

misleading juries require judicial action.

30
than on the relevant facts of the case, and would lead inevitably

to unjust verdicts." Id. at 279, 72 S.E.2d at 697. However,

because the law today is unambiguous -- parole is completely

unavailable to all convicted felons -- the jury's consideration

of that fact would not be speculative. On the contrary,

informing the jury of the now-certain fact that parole has been

abolished would eliminate the very speculation that previously

concerned the Supreme Court.
In view of the legislature's abolition of the long standing

tradition of parole and the new bifurcated jury sentencing

procedure, we mislead jurors and prejudice defendants when we

fail to inform jurors that parole is no longer available.

II.

The overriding purpose of jury instructions is to inform the

jury of the applicable law. See Cooper v. Commonwealth, 2 Va.

App. 497, 500, 345 S.E.2d 775, 777 (1986). To that end, the

trial judge must instruct the jury in a manner that will aid the

jury in reaching a proper verdict and that will avoid misleading

the jury. See id.; see also 75A Am. Jur. 2d Trial § 1077 (1991).

"[W]hen a principle of law is vital to a defendant in a criminal

case, a trial court has an affirmative duty properly to instruct

a jury about the matter." Jimenez v. Commonwealth, 241 Va. 244,

250, 402 S.E.2d 678, 681 (1991). It is error not to instruct the

jury when the jury may make findings based upon a mistaken belief

of the law. See Martin v. Commonwealth, 218 Va. 4, 7, 235 S.E.2d

31
304, 305 (1977) (per curiam).

Walker's proffered instruction was necessary because the

unavailability of parole was a relevant factor to consider in

determining the proper length of his sentence. The

Commonwealth's attorney argued to the jury the concept of future

dangerousness when he asserted:
The defendant's behavior in this case was
more than wrong. It is scary and it is
dangerous. It is life threatening. This
defendant is dangerous and needs to be kept
off the street for a very long time. I am
asking you all to consider the facts in this
case and sentence him accordingly.

That argument highlights the relevancy of the duration of the

sentence that the jury was asked to levy. The unavailability of

parole is unquestionably relevant to the jury's determination of

a proper sentence because it reflects the Commonwealth's policy

that the defendant will actually serve a sentence of

approximately the same length as the sentence levied by the

jury. 15

15
The role and effect of parole on a jury's determination of

punishment is demonstrated by the numerous cases cited by the

majority in which a jury asked the trial judge for information

about parole. See Clagett v. Commonwealth, 252 Va. 79, 94, 472

S.E.2d 263, 272 (1996), cert. denied, ___ U.S. ___, 117 S. Ct.

972 (1997); Peterson v. Commonwealth, 225 Va. 289, 296-97, 302

S.E.2d 520, 525 (1983); Hinton v. Commonwealth, 219 Va. 492, 493,
247 S.E.2d 704, 705 (1978); Jones v. Commonwealth, 194 Va. 273,

32
 As a practical matter, it is well known that "[f]or much of

our country's history, parole was a mainstay of state and federal

sentencing regimes, and every term (whether a term of life or a

term of years) in practice was understood to be shorter than the

stated term." Simmons v. South Carolina, 512 U.S. 154, 169, 114

S. Ct. 2187, 2197 (1994) (plurality opinion). No great leap in

logic is required to conclude that because of that history, the

jury reasonably could have concluded that Walker's sentence

should be increased beyond the appropriate duration to counteract

the effect of his likely early parole release.
Moreover, the jurors were most likely misinformed about the

current state of Virginia law on parole eligibility. The

abolition of parole in Virginia is a recent change in the law.

Indeed, the Virginia Criminal Sentencing Commission, which was

created by the General Assembly for the purpose, inter alia, of

"[m]onitor[ing] sentencing practices in felony cases . . . and

maintain[ing] a database containing the information obtained,"

Code § 17-235(7), has reported as follows:
Many judges have argued that parole
ineligibility information should be provided
so that jurors can make more informed
sentence decisions. It is felt by some that
most jurors are not aware of the impact of
the new legislation and may be setting long
prison terms in the mistaken belief that only

275, 72 S.E.2d 693, 694 (1952); Coward v. Commonwealth, 164 Va.

639, 642, 178 S.E. 797, 798 (1935); Mosby v. Commonwealth, 24 Va.

App. 284, 482 S.E.2d 72 (1997).

33
 a small portion will actually be served, as
occurred under the old parole system.

Va. Crim. Sentencing Comm'n Ann. Rep. 65 (1995) [Hereinafter 1995

Rep.]. The Commission's 1996 Annual Report notes that "[i]t has

been speculated that jurors may not be fully aware of the

implications of parole abolition and truth in sentencing and may

be inflating their sentences." Va. Crim. Sentencing Comm'n Ann.

Rep. 32 (1996). Similarly, a study in Texas, a state that also

traditionally has had jury sentencing, found that among jurors

"almost everyone understood that only rarely would the offender

serve the entire sentence." Robert A. Weninger, Jury Sentencing
in Noncapital Cases: A Case Study of El Paso County, Texas, 45

Wash. U. J. Urb. & Contemp. L. 3, 13 (1994). In light of the

prevalent misconception, the Virginia Criminal Sentencing

Commission recommended that the law be changed to allow for "jury

instructions on the abolition of parole and the 85% minimum time

served requirement for offenders sentenced under the new truth in

sentencing system." 1995 Rep. at 64.

Adding to jurors' misconception about parole eligibility,

under the new sentencing procedures the jury is now given copies

of the defendant's prior record of conviction. See Gilliam v.

Commonwealth, 21 Va. App. 519, 465 S.E.2d 592 (1996). Thus, in

many instances a jury will have evidence that the defendant was

previously released on parole before completing an earlier

imposed sentence. See id. at 525-26, 465 S.E.2d at 595 (holding

that information regarding the defendant's prior sentences may be

34
included in the record of conviction submitted to the jury).

From this evidence, a jury will likely infer that its sentence

may be tempered by early release on parole.

The courts should not permit jurors to sentence based upon

the erroneous belief that parole still exists. "The promise of a

community judgment about proper punishment is merely an illusion

if those acting on behalf of the community do not know what the

sentence they impose actually will mean . . . ." Governor's
Comm'n on Parole Abolition & Sentencing Reform Final Rep. 25

(1994). Indeed, when we give "full recognition [to] the fact

that the average juror [believes] . . . that some type of further

consideration will usually be given to the sentence imposed,"

Hinton, 219 Va. at 496, 247 S.E.2d at 706, the imperative to give

the jury an easy to understand and legally accurate instruction

that parole has been abolished is manifest. The failure to

inform the jury in effect ensures that the jury will be misled.

"[A] juror with misconceptions about the operation of the parole

laws could easily infect the other jurors with these

misconceptions and thereby cause the assessment of a sentence [to

be] based on erroneous beliefs as to when the defendant will

really 'get out.'" Note, Jury Sentencing in Virginia, 53 Va. L.
Rev. 968, 984 (1967).

Obviously, if the jury is uncertain about the defendant's

parole eligibility, the jury's recourse is to impose a lengthier

sentence for the purpose of ensuring the defendant actually

35
serves a sentence of the desired duration. To fail to inform the

jury that parole has been abolished is to risk "subvert[ing] the

will of the legislature by [allowing a jury to impose] a longer

sentence than is warranted simply in order to ensure that the

defendant's actual period of confinement corresponds to what [the

jury] feels is the defendant's due." 16 Id. The prejudice to the

defendant is manifest.

I dissent.

16
The inescapable conclusion to be drawn from the majority

opinion is that a certain degree of jury ignorance can be

tolerated. When parole was available, the jury was not

instructed on parole issues because parole was not a judicial

matter. Furthermore, the harm of jury ignorance was outweighed

by compelling concerns about the separation of the judicial and

executive functions and the possibility of jury speculation.

With the abolition of parole, the reasons for depriving the jury

of complete and accurate information about the state of the law

no longer exist. With no compelling reason to withhold relevant

information from the jury, the majority opinion cites Mosby and
merely adopts the ruling of prior Supreme Court cases that were

decided in a different statutory context. The effect of so doing

is to unnecessarily countenance ignorance in the administration

of justice.

36