Walls v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bray and Annunziata
Argued at Richmond, Virginia

KENNETH MARTIN WALLS
OPINION BY
v. Record No. 1664-01-2 JUDGE LARRY G. ELDER
MAY 14, 2002
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY
Robert G. O'Hara, Jr., Judge

Jacqueline Waymack (Butterworth & Waymack, on
brief), for appellant.

Steven A. Witmer, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.

Kenneth Martin Walls (appellant) appeals from his jury

trial conviction for possession of a firearm by a convicted

felon, in violation of Code § 18.2-308.2. On appeal, he

contends the trial court abused its discretion when it ruled he

could not inform the jury during closing argument in the guilt

phase of the trial that a conviction for the charged offense

would require imposition of a mandatory minimum sentence of two

years. We hold that information regarding the mandatory minimum

sentence was irrelevant in the guilt phase of appellant's trial

and, therefore, that the trial court did not abuse its

discretion in barring argument on that subject. Thus, we affirm

appellant's conviction.
 I.

BACKGROUND

On September 30, 2000, appellant was stopped for speeding

and admitted to the state trooper who stopped him that he had a

pistol in the vehicle. Appellant had previously been convicted

of a felony.

Appellant was charged with possessing a firearm after

having been convicted of a felony. At trial, before the jury

was seated, the Commonwealth asked the court to prevent

appellant's counsel from mentioning during the guilt phase the

mandatory minimum punishment for the charged offense. Appellant

opposed the motion on two grounds. First, he argued that the

motion was not made in writing. Second, he argued that due

process made it "totally appropriate" for the jury to know the

range of punishment, especially in light of the "truth . . .

[in] sentencing" rationale behind Fishback v. Commonwealth, 260

Va. 104, 532 S.E.2d 629 (2000).

The trial court ruled that appellant's counsel could

"fairly represent[] what may be the range of punishment for the

[charged] offense," such as by "mention[ing] that it's a Class 6

felony, maximum punishment five years . . . and basically no

more." The trial court

caution[ed] . . . counsel that opening
statement [in the guilt phase] is not an
opportunity to argue punishment or to
address factors either in aggravation or
mitigation, that indeed punishment is now a

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 matter addressed by a jury in the second
part of a bifurcated trial, and [counsel
would] have the opportunity to argue it at
that point.

The trial court also said it "would sustain any objection if

such argument is made [in opening statement] and opposing

counsel objects."

Over the Commonwealth's objection, the trial court

permitted appellant's counsel, in her opening statement, to tell

the jury about the range of punishment, including the fact that

"[t]here is a minimum mandatory two-year sentence that must be

served if [appellant] is found guilty."

Prior to closing argument in the guilt phase of the trial,

the Commonwealth asked the trial court to address whether

appellant's counsel could argue to the jury that a guilty

verdict would result in a mandatory two-year minimum sentence.

The court ruled that it was not "appropriate to argue sentence

at this juncture." Appellant's counsel then asked why she could

not mention again, as she did in her opening statement, that a

conviction would carry a mandatory minimum sentence. The trial

court responded that there was a difference between "simply

introducing [the jury] to the felony for which [appellant] was

on trial," including the maximum and minimum punishments, which

it permitted during opening statements, and "argu[ing] on the

question of punishment." Appellant's counsel again objected

because the Commonwealth gave no formal notice of its intent to

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seek exclusion of any reference to the mandatory minimum and

because "[t]here is no authority for [such exclusion]."

The jury found appellant guilty. In the sentencing phase,

the jury recommended imposition of the mandatory minimum

sentence of two years, and the trial court imposed the

recommended two-year sentence.

II.

ANALYSIS

A.

FORM AND TIMELINESS OF COMMONWEALTH'S MOTION

Appellant contends the trial court erroneously entertained

the Commonwealth's motion to exclude argument on the subject of

the mandatory minimum sentence required to be imposed upon those

convicted of violating Code § 18.2-308.2. Appellant contends

the motion was inappropriate because it was not in writing and

was not made before trial. Although appellant contends advance

notice of this motion was "required by the rules of court," he

does not cite the specific rule alleged to contain such a

requirement, and we are aware of no rule containing such a

requirement for a motion like this one.

Pursuant to Rule 3A:9(b)(1), only

[d]efenses and objections based on defects
in the institution of the prosecution or in
the written charge upon which the accused is
to be tried, other than that it fails to
show jurisdiction in the court or to charge
an offense, must be raised by [written]

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 motion made . . . at least 7 days before the
day fixed for trial.

(Emphasis added.) Other than those defenses or objections

specified in subsection (b)(1), "any defense or objection that

is capable of determination without the trial of the general

issue may be raised by motion before trial. Failure to present

any such defense or objection before the jury returns a verdict

or the court finds the defendant guilty shall constitute a

waiver thereof." Rule 3A:9(b)(2) (emphasis added); see also

Code § 19.2-266.2 (specifying certain defense motions and

objections, including suppression motions based on claimed

constitutional violations, which must be made in writing and no

later than seven days before trial). Only those motions made

before trial pursuant to Rule 3A:9(b) must be made in writing.

Rule 3A:9(b)(3). Thus, the Rules of Court did not bar the

Commonwealth's oral trial motion to prevent appellant from

mentioning in closing argument the mandatory minimum sentence

required upon conviction for a violation of Code § 18.2-308.2.

B.

REFERENCE TO MANDATORY MINIMUM SENTENCE
DURING CLOSING ARGUMENT IN GUILT PHASE OF BIFURCATED TRIAL

Appellant contends the trial court abused its discretion in

prohibiting his attorney from mentioning in closing argument in

the guilt phase of his bifurcated trial the mandatory minimum

sentence applicable to the charged offense, especially in light

of its ruling permitting counsel to mention the mandatory

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sentence in her opening statement. We hold the argument is not

procedurally barred 1 and fails on the merits because the

available range of punishment upon conviction for a crime is not

relevant to the issue of guilt or innocence. Thus, the trial

court's exclusion of such argument, regardless of its prior

ruling on the subject, did not constitute an abuse of

discretion.

"The purpose of closing argument is to
summarize the evidence for the jury, to
persuade the jury to view the evidence in
the light most favorable to the client, and
to apply that evidence to the law in a
manner which will result in a verdict
favorable to the client."

Canipe v. Commonwealth, 25 Va. App. 629, 639, 491 S.E.2d 747,

751 (1997) (quoting Charles E. Friend, The Law of Evidence in

Virginia § 21-1(b)(1) (4th ed. 1993)). The task of determining

whether a particular fact or issue is appropriate for inclusion

in closing argument is committed to the sound discretion of the

trial court. See, e.g., id. at 639, 491 S.E.2d at 751-52. "[An

appellate] court will not interfere with the exercise of this

1
The Commonwealth contends the assignment of error is
barred because the record on appeal "contains no proffer of the
specific argument defense counsel intended to make." We
disagree. Appellant's counsel made clear in her argument to the
court that she wished to "mention" to the jury "the minimum
mandatory" punishment, just as she already had done in her
opening statement, so that "the jury [would] know the fact that
[the charged crime carries] a minimum mandatory sentence."
Counsel stated "[she] would not be arguing" on that issue. To
hold that counsel's representations to the trial court did not
constitute a sufficient proffer for purposes of appeal would
elevate form over substance.

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broad discretion unless it affirmatively appears that such

discretion has been abused and that the rights of the

complaining litigant have been prejudiced." Cohen v. Power, 183

Va. 258, 262, 32 S.E.2d 64, 65 (1944).

Since the enactment of Code § 19.2-295.1 in 1994, see 1994

Va. Acts chs. 828, 860, 862, 881,

all felony jury trials [are divided] . . .
into two distinct phases. The jury first
resolves the issue of guilt or innocence
and, "upon a finding that the defendant is
guilty . . . , a separate proceeding limited
to the ascertainment of punishment shall be
held as soon as practicable before the same
jury." Code § 19.2-295.1 (emphasis added).
The procedure assures the jury access to
"information specific only to sentencing,
apart from considerations of guilt or
innocence," thereby promoting a punishment
appropriate to the circumstances without
corrupting the initial determination of
guilt or innocence with prejudice.

Daye v. Commonwealth, 21 Va. App. 688, 691, 467 S.E.2d 287, 288

(1996) (quoting Gilliam v. Commonwealth, 21 Va. App. 519, 525,

465 S.E.2d 592, 595 (1996)). Thus, bifurcation protects the

interests of both the defendant and the Commonwealth.

The proper scope of closing argument in a bifurcated trial

for a single, non-capital felony offense, therefore, depends

upon the stage of the proceeding in which the argument is

presented and the evidence which is admissible in that

proceeding. In the guilt phase of such a trial, closing

argument is limited to the law applicable to determining guilt

or innocence. See Rule 3A:17.1(c) (providing that in bifurcated

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trial for non-capital felony offense, "[t]he jury shall not be

instructed until the punishment phase with reference to the

punishment for any charged or lesser-included felony offense"

but shall be instructed at the conclusion of all the evidence in

the guilt phase "as to punishment with respect to any

misdemeanor being tried in the same proceeding or any

lesser-included misdemeanor of any charged felony offense which

may properly be considered by the jury"); Newport News & Old

Point Ry. & Elec. Co. v. Bradford, 100 Va. 231, 238-40, 40 S.E.

900, 902-03 (1902) (in affirming trial court's ruling refusing

to allow defense counsel, "while arguing . . . , to read to the

jury authorities," holding that "counsel should be confined, in

their argument from legal premises, to the propositions of law

embodied in the court's instructions").

The law applicable to determining the appropriate sentence

for a defendant found guilty of the charged offense is not

relevant and, therefore, falls outside the scope of permissible

argument in the guilt phase. Cf. Walker v. Commonwealth, 25 Va.

App. 50, 65-66, 486 S.E.2d 126, 134 (1997) (noting evidence

"relevant . . . to punishment" within meaning of Code

§ 19.2-295.1 does not include factors relevant to guilt such as

"'residual doubt' about guilt" or the possibility that

later-discovered evidence may demonstrate the defendant's

innocence, despite fact that these things "might tend to

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

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overruled in part on other grounds, Fishback, 260 Va. at 115,

532 S.E.2d at 634 (holding that abolition of parole for certain

non-capital felonies is information relevant to punishment

within meaning of Code § 19.2-295.1).

These limitations properly give effect to the intent of the

legislature in enacting statutes which impose mandatory minimum

sentences. In the case of a crime to which a mandatory minimum

sentence applies, the General Assembly has determined that

commission of the offense is serious enough to require the

specified minimum sentence even if mitigating circumstances

exist. Thus, the only purpose served by allowing defense

counsel to present argument about the mandatory minimum sentence

during the guilt phase is to encourage the jury to acquit the

defendant even though the evidence might prove him guilty.

Allowing closing argument which encourages an acquittal

irrespective of the evidence would, in essence, permit the jury

to do in the guilt phase that which it lacks the authority to do

in the sentencing phase--impose a sentence less than the

statutory minimum--by finding the defendant not guilty.

Although jury nullification undoubtedly occurs in some

situations, see, e.g., Wolfe v. Commonwealth, 6 Va. App. 640,

648-50, 371 S.E.2d 314, 318-20 (1988) (discussing inconsistent

jury verdicts), the right to due process does not entitle a

party to encourage such behavior, cf. Poyner v. Commonwealth,

229 Va. 401, 413-14, 329 S.E.2d 815, 825 (1985) (holding

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defendant in capital case has no due process right to retain

jurors struck for cause because they indicated willingness to

disregard Virginia law, which sanctions imposition of death

penalty under appropriate circumstances). Because the jury

could make no legitimate use of information about a mandatory

minimum sentence while deliberating on appellant's guilt or

innocence, the exclusion of argument which could serve only to

encourage inappropriate use of this information did not

constitute an abuse of discretion. 2

In opposing the trial court's ruling in this appeal,

appellant relies on the Supreme Court's statement in Fishback,

260 Va. at 113, 532 S.E.2d at 633, that "a properly informed

jury ensures a fair trial both to the defendant and the

Commonwealth." The Court held in Fishback that a defendant

charged with a non-capital felony offense committed after the

abolition of parole in Virginia is entitled to have the jury

instructed about that abolition in the sentencing phase of his

trial. Id. at 115, 532 S.E.2d at 634. The ruling in Fishback

is not controlling because, unlike appellant's case, Fishback

2
This result is not inconsistent with our holding in Hill
v. Commonwealth, 36 Va. App. 375, 550 S.E.2d 351 (2001),
petition for appeal granted, No. 012316 (Va. Sup. Ct. Order of
3/6/02). In Hill, we concluded that, on voir dire, defense
counsel properly may "inform the [jury] panel of the sentencing
parameters" for the charged offense "[i]n order for counsel to
properly explore whether the jury panel may be irrevocably
biased toward one end or the other of the sentencing spectrum."
36 Va. App. at 381, 550 S.E.2d at 354.

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dealt with the sentencing phase rather than the guilt phase of a

bifurcated trial. Id. at 108-10 & n.1, 532 S.E.2d at 630-31 &

n.1. Thus, Fishback stands only for the proposition that a

defendant is entitled to have the jury "properly informed" about

matters relevant to that particular stage of the proceedings,

which in Fishback's case concerned the abolition of parole. As

discussed above, the legislature has determined the mandatory

minimum sentence appropriate for particular offenses, and a jury

instructed about the mandatory minimum during the sentencing

phase rather than the guilt phase of such a prosecution is "a

properly informed jury" within the meaning of Fishback.

Finally, a different result is not required simply because

the trial court permitted appellant to mention in opening

statement the mandatory minimum sentence in the context of the

sentencing range. First, even in ruling on the motion to

exclude any reference to the mandatory minimum sentence in

opening statements, the trial court specifically noted that

"punishment is now a matter addressed by a jury in the second

part of a bifurcated trial" and that counsel would "have the

opportunity to argue it at that point." Thus, the trial court

remained consistent in its ruling that appellant would not be

permitted to present argument on the subject of the mandatory

minimum sentence during the guilt phase of the trial.

Second, to the extent the rulings were inconsistent, the

trial court was not bound to adhere to its initial ruling when

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the Commonwealth repeated its motion at the end of the trial,

seeking to exclude references to the mandatory minimum sentence

during closing argument. "A trial court is empowered to change

a legal determination as long as it retains jurisdiction over

the proceedings before it." Turner v. Sheldon D. Wexler,

D.P.M., P.C., 244 Va. 124, 128, 418 S.E.2d 886, 888 (1992).

This principle applies equally to rulings made before, during

and after trial. See, e.g., Cloutier v. Queen, 35 Va. App. 413,

420-21, 545 S.E.2d 574, 577-78 (2001); Bottoms v. Commonwealth,

22 Va. App. 378, 383-84, 470 S.E.2d 153, 156 (1996).

III.

Because argument regarding the mandatory minimum sentence

to be imposed upon conviction for an offense is irrelevant in

the guilt phase of a trial for that offense and serves only to

encourage jury nullification of the legislatively imposed

sentencing range, we hold a trial court does not abuse its

discretion in refusing to permit such argument during the guilt

phase. Further, because a trial court may change a ruling at

any time while it retains jurisdiction over the proceedings in

which the ruling was made, we hold the trial court did not abuse

its discretion in refusing to permit such argument during the

guilt phase in appellant's trial. Thus, we affirm appellant's

conviction for possessing a firearm after having been convicted

of a felony.

Affirmed.

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