Fogg v. Com.

• Decision Date: 28 August 1974
• Citation: 207 S.E.2d 847,215 Va. 164
• Parties: Bernard Ross FOGG v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 847

207 S.E.2d 847

215 Va. 164

Bernard Ross FOGG v. COMMONWEALTH of Virginia.

Supreme Court of Virginia.

Aug. 28, 1974.

Charles R. Cloud, Norfolk, for plaintiff in error.

Gilbert W. Haith, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.

I'ANSON, Justice.

On November 26, 1966, the defendant, Bernard Ross Fogg, pleaded not guilty to three indictments charging him with rape, robbery and abduction. By consent entered of record, a jury was waived, and after hearing evidence the trial judge found the defendant guilty of the charges and sentenced him to death on the rape charge and confinement in the State penitentiary on the other two charges. We affirmed the judgments in Fogg v. Commonwealth, 208 Va. 541, 159 S.E.2d 616 (1968).

However, on July 26, 1972, the United States Supreme Court vacated the judgment of this court insofar as it imposed the death penalty in the rape case on the ground that the punishment was constitutionally impermissible and remanded the case to this court for further proceedings.

Subsequently, we vacated the lower court's judgment only as to the imposition of the death penalty and remanded the case to the court below for a new trial on the issue of punishment alone.

On a retrial of the case limited to the issue of punishment, the defendant filed a motion asking for a jury trial, which motion was overruled by the trial court. Upon consideration of the evidence introduced at the original trial, the testimony of witnesses, letters filed with the court relating to the good conduct of Fogg in the State penitentiary, and the probation officer's report, the trial court sentenced the defendant to confinement in the penitentiary for the remainder of his natural life.

Defendant contends that the waiver of a jury in his 1966 trial was ineffctive because the record does not show that he was informed by Judge Lawrence Bullock ¹ that he had previously tried defendant's alleged accomplice. ² We do not agree.

The record of defendant's original trial shows that the waiver of his right to a jury trial was entered after he had been fully advised by his counsel and Judge Bullock of his right to a jury trial. The record also shows, from questions asked of defendant and his counsel by Judge Bullock and their answers thereto, that defendant voluntarily, knowingly and intelligently waived his right to a jury with adequate awareness of the material circumstances and probable consequences. It is true that the record of the 1966 trial does not show that Judge Bullock asked the defendant if he knew that he had tried his alleged accomplice Brickhouse; that he had found Brickhouse guilty of the charges against him; and that he had referred the case to a probation officer for a report before fixing the sentence. ³ Such questions were unnecessary under the circumstances here. It is inconceivable that the defendant and his counsel did not know that Brickhouse had been tried by Judge Bullock three days before and what his findings were in that case. Moreover, the defendant has never testified in any proceeding that he did not know Judge Bullock had tried his accomplice when he waived his trial by a jury. This assertion was made for the first time in a footnote found in defendant's application for certiorari to the United States Supreme Court for the issuance of a writ of habeas corpus which had been denied by us.

Defendant says that the trial court erred in not allowing him a jury trial on the issue of punishment. We do not agree.

There is no constitutional right, either under the Constitution of Virginia or the Constitution of the United States, to a jury trial limited to the issue of punishment of one who has been found guilty of a crime. Article I, § 8, of the Constitution of Virginia, guaranteeing an accused the right to a jury trial, is the same right to a jury trial that existed at common law. At common law the jury determined the guilt or innocence of the accused and the court fixed the punishment. Cooper v. Town of Appalachia, 145 Va. 861, 864, 134 S.E. 591, 592 (1926); Bracy v. Commonwealth, 119 Va. 867, 872, 89 S.E. 144, 145 (1916). Thus, the constitutional right to a jury trial refers only to the right to have a jury determine guilt or innocence of an accused, not his sentence.

Article I, § 8, of the Constitution of Virginia further provides, in pertinent part:

'. . . If the accused plead not guilty, he may, with his consent and the concurrence of the Commonwealth's Attorney and of the court entered of record . . . waive a jury. In case of such waiver . . . the court shall try the case.'

This language requires the court to determine the guilt or innocence of an accused and fix his punishment when an accused has pleaded not guilty and has voluntarily, knowingly and intelligently waived his right to jury trial with the consent and concurrence of the Commonwealth's attorney and the court. See Mickens v. Commonwealth, 178 Va. 273, 282, 16 S.E.2d 641, 645, cert. denied, 314 U.S. 690, 62 S.Ct. 362, 86 L.Ed. 552 (1941). Moreover, when the court has found an accused guilty, the constitutional provision prohibits the court from then submitting the issue of punishment to a jury. Dixon v. Commonwealth, 161 Va. 1098, 1102, 172 S.E. 277, 278 (1934).

Under federal law the court, and not the jury, fixes punishment. There is nothing in the Constitution of the United States which gives the defendant the right to have his punishment fixed by a jury. Williams v. People of State of New York, 337 U.S. 241, 246, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949); Fed.R.Crim.P. 32, 18 U.S.C. 4506.

The Virginia statutes provide that when the court sits without a jury, the trial judge tries the issue of guilt and also fixes the penalty. When the accused demands a jury, the jury performs both functions. Code §§ 19.1--192, 19.1--291, 19.1--292; Huggins v. Commonwealth, 213 Va. 327, 328, 191 S.E.2d 734, 736 (1972).

In Snider v. Cox, 212 Va. 13, 14, 181 S.E.2d 617, 618 (1971), we sanctioned 'a trial to...