Booker v. Com.

Decision Date06 June 2008
Docket NumberRecord No. 071626.
Citation661 S.E.2d 461
PartiesJoseph BOOKER v. COMMONWEALTH of Virginia.
CourtVirginia Supreme Court

Kathleen B. Martin, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: All the Justices.

OPINION BY Justice BARBARA MILANO KEENAN.

In this appeal, we consider whether the Court of Appeals erred in affirming a judgment in a criminal case in which the circuit court, in response to a question posed by the jury during deliberations in the sentencing phase, instructed the jury that the court had the power to reduce but not to increase the sentence imposed by the jury.

Joseph Booker was tried by a jury in the Circuit Court of Amelia County on indictments charging three counts of cocaine distribution, in violation of Code § 18.2-248. The jury convicted Booker of all three charges.

During the sentencing phase of Booker's trial, the circuit court instructed the jury that "[i]n Virginia, which now has no parole, the defendant will serve at least 85 percent of any time that is ultimately imposed by the [c]ourt." In addition, the jury was informed that it must impose a sentence of between five and 40 years' imprisonment for each charge.

After the case was submitted to the jury for sentencing deliberations, the jury asked the following question, "Can the [j]udge alter the sentence[?]" The circuit court informed the parties that it was inclined to tell the jury that the court could reduce but could not increase the sentence fixed by the jury. Booker objected to this proposed response, arguing that it would send the "wrong message," and that the court simply should instruct the jury that it should not be concerned with what might occur after the jury determined Booker's sentence. The circuit court provided the following response to the jury over Booker's objection: "[T]he Court has the power to reduce, but not increase the sentence. However, you shall not concern yourselves with what happens after your verdict is returned."

The jury fixed Booker's sentence at 12 years' imprisonment for each of the three convictions. In accordance with the verdict, the circuit court sentenced Booker to three consecutive terms of 12 years' imprisonment.

The Court of Appeals affirmed Booker's convictions in an unpublished opinion, holding that the circuit court did not err in instructing the jury regarding the court's authority to reduce the sentence imposed by the jury. Booker v. Commonwealth, Record No. 1754-05-2, 2006 WL 3714711 (December 19, 2006). The Court of Appeals concluded that the failure to provide an accurate and direct response "could have both engendered further speculation by the jury on whether the trial judge would increase or decrease [Booker's] punishment, and caused the jury to base [its] determination of [Booker's] punishment on a mistaken belief of the law." Id., slip op. at 5. The Court of Appeals held that the instruction was proper because it "was neither misleading or confusing and prevented the jury from basing its verdict on a misconception of the law." Id. We awarded Booker this appeal.

Booker argues that the Court of Appeals erred in affirming the circuit court's judgment because the circuit court improperly informed the jury that the court could reduce but not increase the sentence set by the jury. Booker contends that the circuit court's response invited the jury to speculate about what action the court might take with regard to the sentence. Thus, Booker asserts that the circuit court's instruction to the jury tainted the jury's decision regarding the appropriate punishment for the three offenses.

In response, the Commonwealth first maintains that Booker did not adequately preserve his objection to the circuit court's proposed answer to the jury's question. According to the Commonwealth, Booker's argument on appeal is barred by Rule 5:25 because Booker did not argue to the circuit court that the court's proposed answer permitted the jury to speculate regarding what action might be taken after the jury made its sentencing determination.

Addressing the merits of the circuit court's response, the Commonwealth contends that the court's response was a correct statement of the law, and was appropriate because the answer was given accurately without reference to inappropriate matters such as executive clemency. The Commonwealth also argues that the circuit court's response likely would have reduced the jury's inclination to speculate about the court's role in determining the final sentence, especially in light of the fact that the jury already had been informed that Booker would serve at least 85 percent of any sentence "ultimately imposed by the [c]ourt." Finally, the Commonwealth maintains that because the circuit court also instructed the jury not to be concerned with what would happen after the jury returned its verdict, the circuit court effectively precluded the jury's further consideration of future action the circuit court might take regarding Booker's sentence. We disagree with the Commonwealth's arguments.

Initially, we conclude that Booker preserved his objection to the circuit court's response to the jury's question. Although Booker did not argue in the circuit court that the court's response would encourage the jury to speculate about future actions the court might take regarding Booker's sentence, the objection nevertheless informed the court that Booker viewed the court's response as providing improper information to the jury. Thus, because the circuit court was informed with reasonable certainty of Booker's concern, the court had the ability to evaluate the merits of the objection and to make an intelligent decision regarding the potential effect of the instruction on the jury's deliberation process. See Rule 5:25.

We review the circuit court's response to the jury's question in the context of the sentencing function performed by juries in criminal trials. When a defendant is found guilty by a jury of a felony charge or a Class 1 misdemeanor, a separate sentencing proceeding is held before the same jury to determine the punishment the defendant should receive for those convictions. Code § 19.2-295.1. The...

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6 cases
  • Vay v. Commonwealth
    • United States
    • Virginia Court of Appeals
    • January 31, 2017
    ...a jury is not permitted to consider what may happen to a defendant after the jury reaches its verdict." Booker v. Commonwealth, 276 Va. 37, 41, 661 S.E.2d 461, 463 (2008). Finally, we note that, assuming that the jury had been allowed to comment on whether the sentences should run concurren......
  • Jones v. Com., Record No. 1802-08-1.
    • United States
    • Virginia Court of Appeals
    • July 28, 2009
    ... ... at 577, 513 S.E.2d at 874 (citing Jones v. Commonwealth, 194 Va. 273, 279, 72 S.E.2d 693, 696 (1952)). "As a general rule, in determining a defendant's sentence, a jury is not permitted to consider what may happen to a defendant after the jury reaches its verdict." Booker v. Commonwealth, 276 Va. 37, 41, 661 S.E.2d 461, 463 (2008) ... 679 S.E.2d 572 ...         We conclude evidence of appellant's incarceration prior to the nolle prosequi of the original charges was irrelevant and was not evidence in mitigation of the offense.5 The trial court did not abuse ... ...
  • Booker v. Commonwealth, Record No. 0549–11–2.
    • United States
    • Virginia Court of Appeals
    • April 10, 2012
    ...Court of Virginia, and the case was remanded to the circuit court for a new sentencing hearing with a new jury. See Booker v. Commonwealth, 276 Va. 37, 661 S.E.2d 461 (2008). After appellant's case was remanded for resentencing, he filed a motion to limit the evidence the Commonwealth could......
  • Webb v. Smith
    • United States
    • Virginia Supreme Court
    • June 6, 2008
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