Hinton v. Com.

• Decision Date: 06 October 1978
• Docket Number: No. 771305,771305
• Citation: 219 Va. 492,247 S.E.2d 704
• Parties: Frank L. HINTON v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 704

247 S.E.2d 704

219 Va. 492

Frank L. HINTON v. COMMONWEALTH of Virginia.

Record No. 771305.

Supreme Court of Virginia.

Oct. 6, 1978.

O. L. Gilbert, Norfolk (Rabinowitz, Rafal & Swartz, Norfolk, on brief), for appellant.

Robert H. Anderson, III, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

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

COMPTON, Justice.

Defendant Frank L. Hinton, convicted by a jury of malicious wounding, appeals the May 1977 final order which sentenced him in accordance with the verdict to 20 years' imprisonment. We have limited the writ of error to consideration of whether the trial court misinstructed the jury in response to a question concerning parole eligibility of a person sentenced to the penitentiary.

The issue arose in the following manner. After deliberating for about one and one-half hours, the jury returned to the courtroom with an inquiry for the trial judge. The foreman stated: "Your Honor, the question was brought up about what part of a sentence a person would have to serve before being paroled." The trial judge responded:

"The answer that the Court is required to give you, is not going to be satisfactory; but we operate under instructions imposed by the Supreme Court of Virginia, and in case I answer your question wrong, it might cause this whole trial to be in vain.

"The answer that I understand I am required to give you, is that while there is a system for the early release of prisoners, that it is within the province of the Correctional System of this State and is not the concern of the Court, nor is it the concern of the jury.

"Your jury function, is to resolve the facts and determine guilt or innocence and to fix any punishment, if that be the case; and once that decision has been made by a jury, the Court then has the function to impose that decision upon the defendant, and the jury is to look no further into the verdict or determine what, if anything else, it wants to do or should do with their verdict, as it is then up to the Correctional System to determine when an individual is to be released from custody.

"Sometimes people never serve their entire sentence and get off with good behavior or for becoming disciplined or rehabilitated in confinement, and never serve their entire sentence, but are considered for early release at some point when they are in confinement; and when that is, is a matter that is entirely up to the Parole Board and is not for the Court or jury to be concerned about.

"I would like to answer you further, but I'm restricted from doing that and I don't want to trespass on the prerogatives set by the Supreme Court instructions; I would like to advise you about the possibility of early release, but I'm not allowed to tell you what it is in order that you may take it into consideration when you fix punishment, if you decide punishment is to be imposed in this case."

The defendant objected to the trial court's statement and moved for a mistrial. The objection was overruled and the motion was denied.

Five minutes after returning to its room, the jury announced it had reached a verdict. It found the defendant guilty and fixed his punishment at the maximum sentence allowed by law. Code §§ 18.2-51 & -10(c).

The sole issue presented is: Was the court's oral instruction erroneous and, if so, was such error prejudicial to defendant?

The defendant contends that reversible error was committed relying on Wansley v. Commonwealth, 205 Va. 412, 137 S.E.2d 865 (1964), Cert. denied, 380 U.S. 922, 85 S.Ct. 920, 13 L.Ed.2d 806 (1965); Jones v. Commonwealth, 194 Va. 273, 72 S.E.2d 693 (1952); and Coward v. Commonwealth, 164 Va. 639, 178 S.E. 797 (1935). The Attorney General argues that the trial court's statement was proper. Seeking factually to distinguish Wansley, Jones and Coward, he urges that when the statement here is "analyzed in its entirety", it is consistent with the rule enunciated in those cases. In the alternative, the Commonwealth contends that any error which was committed "was not sufficiently prejudicial so as to justify a reversal in this case." We do not agree with either prong of the Commonwealth's argument.

Whatever may be the rule in other jurisdictions (see cases collected in Annot., 35 A.L.R.2d 769), Virginia is committed to the...