Gillespie v. Commonwealth

• Citation: 636 S.E.2d 430
• Decision Date: 03 November 2006
• Docket Number: Record No. 060034.
• Parties: Robert Lewis GILLESPIE, a/k/a Robert Lewis Gillispie v. COMMONWEALTH of Virginia.
• Court: Supreme Court of Virginia

636 S.E.2d 430

Robert Lewis GILLESPIE, a/k/a Robert Lewis Gillispie v. COMMONWEALTH of Virginia.

Record No. 060034.

Supreme Court of Virginia.

November 3, 2006.

Catherine E.P. Haas, Assistant Appellate Defender (Virginia Indigent Defense Commission, on brief), for appellant.

Alice T. Armstrong, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: HASSELL, C.J., LACY, KEENAN, KINSER, LEMONS, and AGEE, JJ., and RUSSELL, S.J OPINION BY Senior Justice CHARLESS. RUSSELL.

This appeal requires us to construe the language of Code § 19.2-295.1 concerning bifurcated trials in criminal cases. It presents the question whether the Commonwealth may, at the sentencing stage of a bifurcated trial, present evidence of the sentences imposed upon the defendant as a part of his record of prior convictions.

Facts and Proceedings

In a jury trial, Robert Lewis Gillispie¹ was found guilty of statutory burglary. The jury fixed his punishment at five years imprisonment. After considering a pre-sentence report, the trial court imposed that sentence, to be followed by three years of post-release probation supervision.

At the sentencing stage of the trial, the Commonwealth offered an authenticated copy of a "Conviction and Sentencing Order" entered in the same court, dated December 8, 1998, showing that Gillispie had been convicted of grand larceny and sentenced to five years imprisonment, with three years and four months suspended upon the condition that Gillispie be of good behavior and submit to drug treatment. The order also showed that Gillispie had been charged with robbery but found not guilty of that offense.

Defense counsel objected to the exhibit as offered and moved the trial court to redact any reference to the robbery charge. The Commonwealth agreed and the trial court redacted that portion of the order. The defense also moved the court to redact the sentencing information relating to the grand larceny charge, as well as any reference to drug treatment, on the ground that both were "prejudicial to this case and could inflame the jury." The Commonwealth opposed the motion and the court denied it. The 1998 order was admitted in evidence without change except for the redaction of the reference to the robbery charge.

After this evidence was received, the jury retired to consider sentencing. During its deliberations, the jury sent written questions to the trial court, inquiring whether the judge could reduce the sentence the jury fixed, whether the defendant had been on probation when the crime occurred, and in what facility the defendant would be confined if imprisoned. The jury explained, in the last question, "We don't want this defendant to spend time in penitentiary w/murderers & rapists." The court answered these questions properly, by replying that the jurors should fix a sentence they considered appropriate and not concern themselves with future events, that they should not consider the defendant's probation status, and that the Department of Corrections, not the court or the jury, determines where prisoners are housed.

After the jury reported that it had reached a verdict and returned to the courtroom, a juror asked the judge whether suspension and parole were different, and if the judge made the decision whether to suspend a sentence. The court answered both these questions in the affirmative, and asked all jurors whether, in the light of those answers, they were satisfied with the verdict they had reached or whether they wished to retire to the jury room for further deliberations. The jurors unanimously stated that they were satisfied and presented their verdict.

Gillispie appealed his conviction and sentence to the Court of Appeals, which affirmed by a per curiam opinion. We awarded him an appeal, limited to his assignment of error relating to the trial court's refusal to redact sentencing information from his record of prior convictions.

Analysis

Code § 19.2-295.1 provides, in pertinent part:

In cases of trial by jury, upon a finding that the defendant is guilty of a felony or 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 shall present the defendant's prior criminal convictions by certified, attested or exemplified copies of the record of conviction. . . . After the Commonwealth has introduced such evidence of prior convictions, or if no such evidence is introduced, the defendant may introduce relevant, admissible evidence related to punishment. Nothing in this section shall prevent the Commonwealth or the defendant from introducing relevant, admissible evidence in rebuttal.

In denying Gillispie's appeal on this issue, the Court of Appeals followed its prior decisions in Gilliam v. Commonwealth, 21 Va. App. 519, 465 S.E.2d 592 (1996), and Mosby v. Commonwealth, 24 Va.App. 284, 482 S.E.2d 72 (1997), wherein it held that "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." Mosby, 24 Va.App. at 291, 482 S.E.2d at 75. The Court of Appeals reasoned that the purpose of the statute was to enable the jury to determine an appropriate sentence and that previous efforts to punish and rehabilitate the defendant were indispensable to that purpose. Gilliam, 21 Va. App. at 524, 465 S.E.2d at 595.

Our duty is to interpret the intent of the General Assembly in adopting the language it chose. If the language is plain and unambiguous, there is no need for judicial construction; the language will be applied as written. Tiller v. Commonwealth, 193 Va. 418, 420, 69 S.E.2d 441, 442 (1952). Language is ambiguous if it admits of being understood in more than one way, refers to two or more things simultaneously, is difficult to comprehend, is of doubtful import, or lacks clearness and definiteness. Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985).

The Court of Appeals, in Gilliam, found the language of the statute in question here to be ambiguous because it was susceptible of more than one interpretation, and therefore appropriate for judicial construction. 21 Va. App. at 522, 465 S.E.2d at 594. We agree that an ambiguity exists, as illustrated by the positions of the parties here: The defendant contends that "record of conviction" means a document showing only the fact of conviction; the Commonwealth contends that the term refers to the final order entered by the trial court, typically showing both conviction and sentence. Nevertheless, we reach a different conclusion from that reached by the Court of Appeals as to the intent of the General Assembly in enacting Code § 19.2-295.1.

The General Assembly adopted Code § 19.2-295.1 in its original form in 1994. At that time, bifurcated trials in capital murder cases were provided for by Code §§ 19.2-264.2, et seq., which had been in effect in varying forms since 1977. The General Assembly clearly had those laws in contemplation in 1994, when considering the extension of bifurcated trials to non-capital felonies for the first time in our history. Code § 19.2-264.2 provided then, as it does now, that the jury, at the penalty phase of a capital murder case, shall not impose the death penalty unless it finds either the "future dangerousness" predicate or the "vileness" predicate to exist "after consideration of the past criminal record of convictions of the defendant." Code § 19.2-264.4(C) provided then, as it does now, that in the penalty phase of a capital murder trial, evidence may be admissible, subject to the rules of evidence, that includes the "prior history" of the defendant.²

In ascertaining legislative intent, we presume that the General Assembly, when enacting new laws, is fully aware of the state of existing law relating to the same general subject matter. United Masonry, Inc. v. Riggs National Bank, 233 Va. 476, 480, 357 S.E.2d 509, 512 (1987); Cape Henry v. Natl. Gypsum, 229 Va. 596, 600, 331 S.E.2d 476, 479 (1985). The General Assembly is not only presumed to have been aware of the capital murder statutes in effect in 1994, but is also presumed to have been aware of our decisions construing them. Charles v. Commonwealth, 270 Va. 14, 19, 613 S.E.2d 432, 434 (2005) (citing Waterman v. Halverson, 261 Va. 203, 207, 540 S.E.2d 867, 869 (2001)).

In Bassett v. Commonwealth, 222 Va. 844, 858, 284 S.E.2d 844, 853 (1981), we were presented with the precise question presented by this appeal, but in the context of a capital murder case. There, we held that the sentences imposed as a result of the defendant's prior convictions might properly be admitted at the penalty phase of a capital murder trial, observing: "The sentence reflects the gravity of the offense and the offender's propensity for violence." Id.

In the light of our interpretation of the capital murder statutes in Bassett, the General Assembly, if it had desired the same result in non-capital felony trials, could simply have mirrored the capital murder laws when enacting Code § 19.2-295.1. Instead, it employed more restrictive language than it had used in the capital murder laws, limiting the Commonwealth to the introduction of "the defendant's prior criminal convictions" by presenting copies of the "record of conviction." (Emphasis added.) Section 19.2-295.1 was enacted without any provisions permitting the introduction of evidence of prior sentences as a part of the defendant's "history and background" in the Commonwealth's case in chief at the penalty phase. By contrast, the Commonwealth may do just that in capital murder cases, relying on our interpretation in Bassett. The General Assembly had an opportunity to make bifurcated trials in non-capital cases similar to those in capital cases, but chose a different course.

We consider the General Assembly's departure from the...