Booker v. Commonwealth, Record No. 0549–11–2.

• Decision Date: 10 April 2012
• Docket Number: Record No. 0549–11–2.
• Citation: 723 S.E.2d 621
• Parties: Joseph BOOKER v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

723 S.E.2d 621

Joseph BOOKER

v.COMMONWEALTH of Virginia.

Record No. 0549–11–2.

Court of Appeals of Virginia, Richmond.

April 10, 2012.

Theron L. Marsh, Chesterfield, for appellant.

Kathleen B. Martin, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: PETTY, BEALES and HUFF, JJ.

BEALES, Judge.

Joseph Booker (appellant) was convicted of three counts of distribution of cocaine in 2003 in violation of Code § 18.2–248. After appellant's sentence was vacated on appeal and the matter was remanded to the circuit court, a resentencing hearing was held for these convictions on July 8, 2010. On appeal, appellant argues that the circuit court erred at resentencing by reading the statement of facts to the resentencing jury, including a description of an April 26, 2003 conversation in that statement of facts. For the following reasons, we agree that the circuit court erred, and we reverse and remand for resentencing.

I. BACKGROUND

Appellant was tried by a jury in Amelia County Circuit Court in 2003. He was convicted of three counts of distribution of cocaine in violation of Code § 18.2–248, and sentenced to 12 years in prison on each conviction for a total sentence of 36 years. Appellant's sentences were vacated on appeal by the Supreme 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 present at the new sentencing hearing. He argued that Code § 19.2–295.1 allowed the Commonwealth to present in its case-in-chief at resentencing only the defendant's prior criminal history and a victim impact statement. Thus, appellant argued that the Commonwealth could not present a summary of the evidence that had been heard in the guilt phase of the trial. The prosecutor argued that he was entitled to show the new sentencing jury the circumstances of the convictions so that they would not have “to operate in the complete dark.” The circuit court stated that “the jury cannot go blind” and had “to know what occurred.” The circuit court directed the Commonwealth to submit a proposed statement of facts and for the defendant to file a response. The circuit court also ruled that no live witnesses could be used in the Commonwealth's case-in-chief at resentencing to present evidence from the guilt phase.

The Commonwealth's statement of facts described the three drug transactions for which appellant was convicted and that took place between the defendant and the confidential informant on April 13, April 26, and May 3, 2003. A fourth incident alluded to in the statement of facts referred to another drug deal in which appellant indicates that he was cheated out of some of the money he was to be paid for the drugs. The information on this fourth drug transaction—for which appellant was never charged—came from a videotape of the April 26, 2003 transaction between appellant and the confidential informant, which had been played for the jury at the original trial.

The conversation between appellant and the confidential informant from the April 26, 2003 incident that was included in the statement of facts is at issue in appellant's second assignment of error; it reads as follows:

The confidential informant ... drove to the ... residence on Lodore Road. Booker got into the confidential informant's vehicle, drove down the road and back. There was a conversation between the confidential informant and Mr. Booker wherein Booker indicated that he was cheated on a drug deal by an individual. So he had to count the money the confidential informant gave him. Booker then stated he counted the money because he was ripped off by this individual.

While expressly not waiving his objection to a summary of facts being given to the jury, appellant proposed the summary should contain only information about when and where each of the three cocaine sales occurred, and the amounts of money and cocaine involved. He proposed an alternative statement of facts that included only that information. Appellant specifically objected to the Commonwealth including information from the April 26, 2003 incident regarding a fourth drug sale. Appellant contended that the challenged evidence concerned unadjudicated, unrelated criminal acts that would not be admissible in the guilt phase of a trial.

The circuit court prepared a statement of facts, which included information taken from the Commonwealth's and appellant's proposed statements of facts. Before the resentencing hearing began on July 8, 2010, appellant renewed his objection that Code § 19.2–295.1 did not allow the use of a statement of facts. He objected again to the inclusion of the April 26, 2003 conversation between appellant and the informant.

The circuit court judge read the statement of facts to the jury. The Commonwealth then introduced appellant's prior convictions for shooting into an occupied dwelling and assault and battery. Appellant presented no evidence. The jury was instructed that the sentencing range for each conviction was five to forty years and a fine of not more than $500,000. Appellant argued that the minimum five-year sentence on each conviction was appropriate, and the Commonwealth asked the jury to impose fifteen years on each conviction. The jury sentenced appellant on the three convictions for distributing cocaine to five years for the first conviction (the minimum sentence under the statute), seven years for the second conviction, and eight years for the third conviction, for a total of twenty years.

II. ANALYSIS

A. Standard of Review

The facts are considered in the light most favorable to the Commonwealth, which prevailed below. See Giles v. Commonwealth, 277 Va. 369, 373, 672 S.E.2d 879, 882 (2009). Decisions involving the admission of evidence are reviewed on appeal for abuse of discretion by the trial court. See Jones v. Commonwealth, 50 Va.App. 437, 445, 650 S.E.2d 859, 863 (2007). The trial court's ruling concerning the admissibility of evidence will not be disturbed on appeal in the absence of an abuse of discretion. Id. at 446, 650 S.E.2d at 863.

As both the Supreme Court of the United States and the Supreme Court of Virginia have explained, a trial court “ ‘by definition abuses its discretion when it makes an error of law.... The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.’ ” Porter v. Commonwealth, 276 Va. 203, 260, 661 S.E.2d 415, 445 (2008) (quoting Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 2048, 135 L.Ed.2d 392 (1996)).

B. The Circuit Court's Abuse of Discretion in Reading the New Statement of Facts, Including a Summary of the April 26, 2003 Conversation, to the Resentencing Jury

On appeal, appellant argues that the circuit court erred by presenting at resentencing the statement of facts that included a description of an April 26, 2003 conversation between appellant and a confidential informant, the summary of which in the statement of facts had not been presented to the previous sentencing jury. Relying on Code § 19.2–295.1 and the Supreme Court of Virginia's interpretation of Code § 19.2–295.1 in Hills v. Commonwealth, 262 Va. 807, 811, 553 S.E.2d 722, 724 (2001), we agree.¹

At resentencing, the circuit court judge compiled a statement of facts and read it to the resentencing jury. The statement of facts was not admitted at the original trial. It was created entirely by the circuit court judge (with input from the Commonwealth's attorney and defense attorney) and entirely for the resentencing. The statement of facts included the circuit court judge's summary of an April 26, 2003 incident, in which appellant allegedly sold .380 gram of cocaine to a confidential informant for $100:

The confidential informant ... drove to the ... residence on Lodore Road. Booker got into the confidential informant's vehicle, drove down the road and back. There was a conversation between the confidential informant and Mr. Booker wherein Booker indicated that he was cheated on a drug deal by an individual. So he had to count the money the confidential informant gave him. Booker then stated he counted the money because he was ripped off by this individual.

Code § 19.2–295.1 governs sentencing proceedings by the jury after conviction and states:

In cases of trial by jury, upon a finding that the defendant is guilty of a felony or a Class 1 misdemeanor, or upon a finding in the trial de novo of an appealed misdemeanor conviction that the defendant is guilty of a Class 1 misdemeanor, a separate proceeding limited to the ascertainment of punishment shall be held as soon as practicable before the same jury. At such proceeding, the Commonwealth may present any victim impact testimony pursuant to § 19.2–295.3 and shall present the defendant's prior criminal history, including prior convictions and the punishments imposed, by certified, attested or exemplified copies of the final order, including adult convictions and juvenile convictions and adjudications of delinquency. Prior convictions shall include convictions and adjudications of delinquency under the laws of any state, the District of Columbia, the United States or its territories. The Commonwealth shall provide to the defendant 14 days prior to trial notice of its intention to introduce copies of final orders evidencing the defendant's prior criminal history, including prior convictions and punishments imposed. Such notice shall include (i) the date of each prior conviction, (ii) the name and jurisdiction of the court where each prior conviction was had, (iii) each offense of which he was convicted, and (iv) the punishment imposed. Prior to commencement of the trial, the Commonwealth shall provide to the defendant photocopies of certified copies of...