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.
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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.
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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
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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
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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
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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
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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,
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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.
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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.
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